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*** START OF THE PROJECT GUTENBERG EBOOK 18 ***

The Federalist Papers

by Alexander Hamilton and John Jay and James Madison


Contents

 FEDERALIST No. I. General Introduction
 FEDERALIST No. II. Concerning Dangers from Foreign Force and Influence
 FEDERALIST No. III. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)
 FEDERALIST No. IV. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)
 FEDERALIST No. V. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)
 FEDERALIST No. VI. Concerning Dangers from Dissensions Between the States
 FEDERALIST No. VII. The Same Subject Continued (Concerning Dangers from Dissensions Between the States)
 FEDERALIST No. VIII. The Consequences of Hostilities Between the States
 FEDERALIST No. IX. The Union as a Safeguard Against Domestic Faction and Insurrection
 FEDERALIST No. X. The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection)
 FEDERALIST No. XI. The Utility of the Union in Respect to Commercial Relations and a Navy
 FEDERALIST No. XII. The Utility of the Union In Respect to Revenue
 FEDERALIST No. XIII. Advantage of the Union in Respect to Economy in Government
 FEDERALIST No. XIV. Objections to the Proposed Constitution From Extent of Territory Answered
 FEDERALIST No. XV. The Insufficiency of the Present Confederation to Preserve the Union
 FEDERALIST No. XVI. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)
 FEDERALIST No. XVII. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)
 FEDERALIST No. XVIII. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)
 FEDERALIST No. XIX. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)
 FEDERALIST No. XX. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)
 FEDERALIST No. XXI. Other Defects of the Present Confederation
 FEDERALIST No. XXII. The Same Subject Continued (Other Defects of the Present Confederation)
 FEDERALIST No. XXIII. The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union
 FEDERALIST No. XXIV. The Powers Necessary to the Common Defense Further Considered
 FEDERALIST No. XXV. The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)
 FEDERALIST No. XXVI. The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered.
 FEDERALIST No. XXVII. The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)
 FEDERALIST No. XXVIII. The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)
 FEDERALIST No. XXIX. Concerning the Militia
 FEDERALIST No. XXX. Concerning the General Power of Taxation
 FEDERALIST No. XXXI. The Same Subject Continued (Concerning the General Power of Taxation)
 FEDERALIST No. XXXII. The Same Subject Continued (Concerning the General Power of Taxation)
 FEDERALIST No. XXXIII. The Same Subject Continued (Concerning the General Power of Taxation)
 FEDERALIST No. XXXIV. The Same Subject Continued (Concerning the General Power of Taxation)
 FEDERALIST No. XXXV. The Same Subject Continued (Concerning the General Power of Taxation)
 FEDERALIST No. XXXVI. The Same Subject Continued (Concerning the General Power of Taxation)
 FEDERALIST No. XXXVII. Concerning the Difficulties of the Convention in Devising a Proper Form of Government.
 FEDERALIST No. XXXVIII. The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed.
 FEDERALIST No. XXXIX. The Conformity of the Plan to Republican Principles
 FEDERALIST No. XL. On the Powers of the Convention to Form a Mixed Government Examined and Sustained.
 FEDERALIST No. XLI. General View of the Powers Conferred by The Constitution
 FEDERALIST No. XLII. The Powers Conferred by the Constitution Further Considered
 FEDERALIST No. XLIII. The Same Subject Continued (The Powers Conferred by the Constitution Further Considered)
 FEDERALIST No. XLIV. Restrictions on the Authority of the Several States
 FEDERALIST No. XLV. The Alleged Danger From the Powers of the Union to the State Governments.
 FEDERALIST No. XLVI. The Influence of the State and Federal Governments Compared
 FEDERALIST No. XLVII. The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts.
 FEDERALIST No. XLVIII. These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other.
 FEDERALIST No. XLIX. Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention.
 FEDERALIST No. L. Periodical Appeals to the People Considered
 FEDERALIST No. LI. The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.
 FEDERALIST No. LII. The House of Representatives
 FEDERALIST No. LIII. The Same Subject Continued (The House of Representatives)
 FEDERALIST No. LIV. The Apportionment of Members Among the States
 FEDERALIST No. LV. The Total Number of the House of Representatives
 FEDERALIST No. LVI. The Same Subject Continued (The Total Number of the House of Representatives)
 FEDERALIST No. LVII. The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation.
 FEDERALIST No. LVIII. Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands.
 FEDERALIST No. LIV. Concerning the Power of Congress to Regulate the Election of Members
 FEDERALIST No. LX. The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)
 FEDERALIST No. LXI. The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)
 FEDERALIST No. LXII. The Senate
 FEDERALIST No. LXIII. The Senate Continued
 FEDERALIST No. LXIV. The Powers of the Senate
 FEDERALIST No. LXV. The Powers of the Senate Continued
 FEDERALIST No. LXVI. Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered.
 FEDERALIST No. LXVII. The Executive Department
 FEDERALIST No. LXVIII. The Mode of Electing the President
 FEDERALIST No. LXIX. The Real Character of the Executive
 FEDERALIST No. LXX. The Executive Department Further Considered
 FEDERALIST No. LXX. The Executive Department Further Considered
 FEDERALIST No. LXXI. The Duration in Office of the Executive
 FEDERALIST No. LXXII. The Same Subject Continued, and Re-Eligibility of the Executive Considered.
 FEDERALIST No. LXXIII. The Provision For The Support of the Executive, and the Veto Power
 FEDERALIST No. LXXIV. The Command of the Military and Naval Forces, and the Pardoning Power of the Executive.
 FEDERALIST No. LXXV. The Treaty-Making Power of the Executive
 FEDERALIST No. LXXVI. The Appointing Power of the Executive
 FEDERALIST No. LXXVII. The Appointing Power Continued and Other Powers of the Executive Considered.
 FEDERALIST No. LXXVIII. The Judiciary Department
 FEDERALIST No. LXXIX. The Judiciary Continued
 FEDERALIST No. LXXX. The Powers of the Judiciary
 FEDERALIST No. LXXXI. The Judiciary Continued, and the Distribution of the Judicial Authority.
 FEDERALIST No. LXXXII. The Judiciary Continued.
 FEDERALIST No. LXXXIII. The Judiciary Continued in Relation to Trial by Jury
 FEDERALIST No. LXXXIV. Certain General and Miscellaneous Objections to the Constitution Considered and Answered.
 FEDERALIST No. LXXXV. Concluding Remarks




THE FEDERALIST.
No. I.

General Introduction

For the Independent Journal.

HAMILTON


To the People of the State of New York:

After an unequivocal experience of the inefficacy of the subsisting
federal government, you are called upon to deliberate on a new
Constitution for the United States of America. The subject speaks its
own importance; comprehending in its consequences nothing less than the
existence of the UNION, the safety and welfare of the parts of which it
is composed, the fate of an empire in many respects the most
interesting in the world. It has been frequently remarked that it seems
to have been reserved to the people of this country, by their conduct
and example, to decide the important question, whether societies of men
are really capable or not of establishing good government from
reflection and choice, or whether they are forever destined to depend
for their political constitutions on accident and force. If there be
any truth in the remark, the crisis at which we are arrived may with
propriety be regarded as the era in which that decision is to be made;
and a wrong election of the part we shall act may, in this view,
deserve to be considered as the general misfortune of mankind.

This idea will add the inducements of philanthropy to those of
patriotism, to heighten the solicitude which all considerate and good
men must feel for the event. Happy will it be if our choice should be
directed by a judicious estimate of our true interests, unperplexed and
unbiased by considerations not connected with the public good. But this
is a thing more ardently to be wished than seriously to be expected.
The plan offered to our deliberations affects too many particular
interests, innovates upon too many local institutions, not to involve
in its discussion a variety of objects foreign to its merits, and of
views, passions and prejudices little favorable to the discovery of
truth.

Among the most formidable of the obstacles which the new Constitution
will have to encounter may readily be distinguished the obvious
interest of a certain class of men in every State to resist all changes
which may hazard a diminution of the power, emolument, and consequence
of the offices they hold under the State establishments; and the
perverted ambition of another class of men, who will either hope to
aggrandize themselves by the confusions of their country, or will
flatter themselves with fairer prospects of elevation from the
subdivision of the empire into several partial confederacies than from
its union under one government.

It is not, however, my design to dwell upon observations of this
nature. I am well aware that it would be disingenuous to resolve
indiscriminately the opposition of any set of men (merely because their
situations might subject them to suspicion) into interested or
ambitious views. Candor will oblige us to admit that even such men may
be actuated by upright intentions; and it cannot be doubted that much
of the opposition which has made its appearance, or may hereafter make
its appearance, will spring from sources, blameless at least, if not
respectable—the honest errors of minds led astray by preconceived
jealousies and fears. So numerous indeed and so powerful are the causes
which serve to give a false bias to the judgment, that we, upon many
occasions, see wise and good men on the wrong as well as on the right
side of questions of the first magnitude to society. This circumstance,
if duly attended to, would furnish a lesson of moderation to those who
are ever so much persuaded of their being in the right in any
controversy. And a further reason for caution, in this respect, might
be drawn from the reflection that we are not always sure that those who
advocate the truth are influenced by purer principles than their
antagonists. Ambition, avarice, personal animosity, party opposition,
and many other motives not more laudable than these, are apt to operate
as well upon those who support as those who oppose the right side of a
question. Were there not even these inducements to moderation, nothing
could be more ill-judged than that intolerant spirit which has, at all
times, characterized political parties. For in politics, as in
religion, it is equally absurd to aim at making proselytes by fire and
sword. Heresies in either can rarely be cured by persecution.

And yet, however just these sentiments will be allowed to be, we have
already sufficient indications that it will happen in this as in all
former cases of great national discussion. A torrent of angry and
malignant passions will be let loose. To judge from the conduct of the
opposite parties, we shall be led to conclude that they will mutually
hope to evince the justness of their opinions, and to increase the
number of their converts by the loudness of their declamations and the
bitterness of their invectives. An enlightened zeal for the energy and
efficiency of government will be stigmatized as the offspring of a
temper fond of despotic power and hostile to the principles of liberty.
An over-scrupulous jealousy of danger to the rights of the people,
which is more commonly the fault of the head than of the heart, will be
represented as mere pretense and artifice, the stale bait for
popularity at the expense of the public good. It will be forgotten, on
the one hand, that jealousy is the usual concomitant of love, and that
the noble enthusiasm of liberty is apt to be infected with a spirit of
narrow and illiberal distrust. On the other hand, it will be equally
forgotten that the vigor of government is essential to the security of
liberty; that, in the contemplation of a sound and well-informed
judgment, their interest can never be separated; and that a dangerous
ambition more often lurks behind the specious mask of zeal for the
rights of the people than under the forbidden appearance of zeal for
the firmness and efficiency of government. History will teach us that
the former has been found a much more certain road to the introduction
of despotism than the latter, and that of those men who have overturned
the liberties of republics, the greatest number have begun their career
by paying an obsequious court to the people; commencing demagogues, and
ending tyrants.

In the course of the preceding observations, I have had an eye, my
fellow-citizens, to putting you upon your guard against all attempts,
from whatever quarter, to influence your decision in a matter of the
utmost moment to your welfare, by any impressions other than those
which may result from the evidence of truth. You will, no doubt, at the
same time, have collected from the general scope of them, that they
proceed from a source not unfriendly to the new Constitution. Yes, my
countrymen, I own to you that, after having given it an attentive
consideration, I am clearly of opinion it is your interest to adopt it.
I am convinced that this is the safest course for your liberty, your
dignity, and your happiness. I affect not reserves which I do not feel.
I will not amuse you with an appearance of deliberation when I have
decided. I frankly acknowledge to you my convictions, and I will freely
lay before you the reasons on which they are founded. The consciousness
of good intentions disdains ambiguity. I shall not, however, multiply
professions on this head. My motives must remain in the depository of
my own breast. My arguments will be open to all, and may be judged of
by all. They shall at least be offered in a spirit which will not
disgrace the cause of truth.

I propose, in a series of papers, to discuss the following interesting
particulars:

THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY

THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION
THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE
PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE
PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT
ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL
SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT
SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY.

In the progress of this discussion I shall endeavor to give a
satisfactory answer to all the objections which shall have made their
appearance, that may seem to have any claim to your attention.

It may perhaps be thought superfluous to offer arguments to prove the
utility of the UNION, a point, no doubt, deeply engraved on the hearts
of the great body of the people in every State, and one, which it may
be imagined, has no adversaries. But the fact is, that we already hear
it whispered in the private circles of those who oppose the new
Constitution, that the thirteen States are of too great extent for any
general system, and that we must of necessity resort to separate
confederacies of distinct portions of the whole.[1] This doctrine will,
in all probability, be gradually propagated, till it has votaries
enough to countenance an open avowal of it. For nothing can be more
evident, to those who are able to take an enlarged view of the subject,
than the alternative of an adoption of the new Constitution or a
dismemberment of the Union. It will therefore be of use to begin by
examining the advantages of that Union, the certain evils, and the
probable dangers, to which every State will be exposed from its
dissolution. This shall accordingly constitute the subject of my next
address.

PUBLIUS.

 [1] The same idea, tracing the arguments to their consequences, is
 held out in several of the late publications against the new
 Constitution.




THE FEDERALIST.
No. II.

Concerning Dangers from Foreign Force and Influence

For the Independent Journal.

JAY


To the People of the State of New York:

When the people of America reflect that they are now called upon to
decide a question, which, in its consequences, must prove one of the
most important that ever engaged their attention, the propriety of
their taking a very comprehensive, as well as a very serious, view of
it, will be evident.

Nothing is more certain than the indispensable necessity of government,
and it is equally undeniable, that whenever and however it is
instituted, the people must cede to it some of their natural rights in
order to vest it with requisite powers. It is well worthy of
consideration therefore, whether it would conduce more to the interest
of the people of America that they should, to all general purposes, be
one nation, under one federal government, or that they should divide
themselves into separate confederacies, and give to the head of each
the same kind of powers which they are advised to place in one national
government.

It has until lately been a received and uncontradicted opinion that the
prosperity of the people of America depended on their continuing firmly
united, and the wishes, prayers, and efforts of our best and wisest
citizens have been constantly directed to that object. But politicians
now appear, who insist that this opinion is erroneous, and that instead
of looking for safety and happiness in union, we ought to seek it in a
division of the States into distinct confederacies or sovereignties.
However extraordinary this new doctrine may appear, it nevertheless has
its advocates; and certain characters who were much opposed to it
formerly, are at present of the number. Whatever may be the arguments
or inducements which have wrought this change in the sentiments and
declarations of these gentlemen, it certainly would not be wise in the
people at large to adopt these new political tenets without being fully
convinced that they are founded in truth and sound policy.

It has often given me pleasure to observe that independent America was
not composed of detached and distant territories, but that one
connected, fertile, widespreading country was the portion of our
western sons of liberty. Providence has in a particular manner blessed
it with a variety of soils and productions, and watered it with
innumerable streams, for the delight and accommodation of its
inhabitants. A succession of navigable waters forms a kind of chain
round its borders, as if to bind it together; while the most noble
rivers in the world, running at convenient distances, present them with
highways for the easy communication of friendly aids, and the mutual
transportation and exchange of their various commodities.

With equal pleasure I have as often taken notice that Providence has
been pleased to give this one connected country to one united people—a
people descended from the same ancestors, speaking the same language,
professing the same religion, attached to the same principles of
government, very similar in their manners and customs, and who, by
their joint counsels, arms, and efforts, fighting side by side
throughout a long and bloody war, have nobly established general
liberty and independence.

This country and this people seem to have been made for each other, and
it appears as if it was the design of Providence, that an inheritance
so proper and convenient for a band of brethren, united to each other
by the strongest ties, should never be split into a number of unsocial,
jealous, and alien sovereignties.

Similar sentiments have hitherto prevailed among all orders and
denominations of men among us. To all general purposes we have
uniformly been one people each individual citizen everywhere enjoying
the same national rights, privileges, and protection. As a nation we
have made peace and war; as a nation we have vanquished our common
enemies; as a nation we have formed alliances, and made treaties, and
entered into various compacts and conventions with foreign states.

A strong sense of the value and blessings of union induced the people,
at a very early period, to institute a federal government to preserve
and perpetuate it. They formed it almost as soon as they had a
political existence; nay, at a time when their habitations were in
flames, when many of their citizens were bleeding, and when the
progress of hostility and desolation left little room for those calm
and mature inquiries and reflections which must ever precede the
formation of a wise and wellbalanced government for a free people. It
is not to be wondered at, that a government instituted in times so
inauspicious, should on experiment be found greatly deficient and
inadequate to the purpose it was intended to answer.

This intelligent people perceived and regretted these defects. Still
continuing no less attached to union than enamored of liberty, they
observed the danger which immediately threatened the former and more
remotely the latter; and being pursuaded that ample security for both
could only be found in a national government more wisely framed, they
as with one voice, convened the late convention at Philadelphia, to
take that important subject under consideration.

This convention composed of men who possessed the confidence of the
people, and many of whom had become highly distinguished by their
patriotism, virtue and wisdom, in times which tried the minds and
hearts of men, undertook the arduous task. In the mild season of peace,
with minds unoccupied by other subjects, they passed many months in
cool, uninterrupted, and daily consultation; and finally, without
having been awed by power, or influenced by any passions except love
for their country, they presented and recommended to the people the
plan produced by their joint and very unanimous councils.

Admit, for so is the fact, that this plan is only RECOMMENDED, not
imposed, yet let it be remembered that it is neither recommended to
BLIND approbation, nor to BLIND reprobation; but to that sedate and
candid consideration which the magnitude and importance of the subject
demand, and which it certainly ought to receive. But this (as was
remarked in the foregoing number of this paper) is more to be wished
than expected, that it may be so considered and examined. Experience on
a former occasion teaches us not to be too sanguine in such hopes. It
is not yet forgotten that well-grounded apprehensions of imminent
danger induced the people of America to form the memorable Congress of
1774. That body recommended certain measures to their constituents, and
the event proved their wisdom; yet it is fresh in our memories how soon
the press began to teem with pamphlets and weekly papers against those
very measures. Not only many of the officers of government, who obeyed
the dictates of personal interest, but others, from a mistaken estimate
of consequences, or the undue influence of former attachments, or whose
ambition aimed at objects which did not correspond with the public
good, were indefatigable in their efforts to pursuade the people to
reject the advice of that patriotic Congress. Many, indeed, were
deceived and deluded, but the great majority of the people reasoned and
decided judiciously; and happy they are in reflecting that they did so.

They considered that the Congress was composed of many wise and
experienced men. That, being convened from different parts of the
country, they brought with them and communicated to each other a
variety of useful information. That, in the course of the time they
passed together in inquiring into and discussing the true interests of
their country, they must have acquired very accurate knowledge on that
head. That they were individually interested in the public liberty and
prosperity, and therefore that it was not less their inclination than
their duty to recommend only such measures as, after the most mature
deliberation, they really thought prudent and advisable.

These and similar considerations then induced the people to rely
greatly on the judgment and integrity of the Congress; and they took
their advice, notwithstanding the various arts and endeavors used to
deter them from it. But if the people at large had reason to confide in
the men of that Congress, few of whom had been fully tried or generally
known, still greater reason have they now to respect the judgment and
advice of the convention, for it is well known that some of the most
distinguished members of that Congress, who have been since tried and
justly approved for patriotism and abilities, and who have grown old in
acquiring political information, were also members of this convention,
and carried into it their accumulated knowledge and experience.

It is worthy of remark that not only the first, but every succeeding
Congress, as well as the late convention, have invariably joined with
the people in thinking that the prosperity of America depended on its
Union. To preserve and perpetuate it was the great object of the people
in forming that convention, and it is also the great object of the plan
which the convention has advised them to adopt. With what propriety,
therefore, or for what good purposes, are attempts at this particular
period made by some men to depreciate the importance of the Union? Or
why is it suggested that three or four confederacies would be better
than one? I am persuaded in my own mind that the people have always
thought right on this subject, and that their universal and uniform
attachment to the cause of the Union rests on great and weighty
reasons, which I shall endeavor to develop and explain in some ensuing
papers. They who promote the idea of substituting a number of distinct
confederacies in the room of the plan of the convention, seem clearly
to foresee that the rejection of it would put the continuance of the
Union in the utmost jeopardy. That certainly would be the case, and I
sincerely wish that it may be as clearly foreseen by every good
citizen, that whenever the dissolution of the Union arrives, America
will have reason to exclaim, in the words of the poet: “FAREWELL! A
LONG FAREWELL TO ALL MY GREATNESS.”

PUBLIUS.




THE FEDERALIST.
No. III.

The Same Subject Continued

(Concerning Dangers From Foreign Force and Influence)

For the Independent Journal.

JAY


To the People of the State of New York:

It is not a new observation that the people of any country (if, like
the Americans, intelligent and wellinformed) seldom adopt and steadily
persevere for many years in an erroneous opinion respecting their
interests. That consideration naturally tends to create great respect
for the high opinion which the people of America have so long and
uniformly entertained of the importance of their continuing firmly
united under one federal government, vested with sufficient powers for
all general and national purposes.

The more attentively I consider and investigate the reasons which
appear to have given birth to this opinion, the more I become convinced
that they are cogent and conclusive.

Among the many objects to which a wise and free people find it
necessary to direct their attention, that of providing for their SAFETY
seems to be the first. The SAFETY of the people doubtless has relation
to a great variety of circumstances and considerations, and
consequently affords great latitude to those who wish to define it
precisely and comprehensively.

At present I mean only to consider it as it respects security for the
preservation of peace and tranquillity, as well as against dangers from
FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising
from domestic causes. As the former of these comes first in order, it
is proper it should be the first discussed. Let us therefore proceed to
examine whether the people are not right in their opinion that a
cordial Union, under an efficient national government, affords them the
best security that can be devised against HOSTILITIES from abroad.

The number of wars which have happened or will happen in the world will
always be found to be in proportion to the number and weight of the
causes, whether REAL or PRETENDED, which PROVOKE or INVITE them. If
this remark be just, it becomes useful to inquire whether so many JUST
causes of war are likely to be given by UNITED AMERICA as by DISUNITED
America; for if it should turn out that United America will probably
give the fewest, then it will follow that in this respect the Union
tends most to preserve the people in a state of peace with other
nations.

The JUST causes of war, for the most part, arise either from violation
of treaties or from direct violence. America has already formed
treaties with no less than six foreign nations, and all of them, except
Prussia, are maritime, and therefore able to annoy and injure us. She
has also extensive commerce with Portugal, Spain, and Britain, and,
with respect to the two latter, has, in addition, the circumstance of
neighborhood to attend to.

It is of high importance to the peace of America that she observe the
laws of nations towards all these powers, and to me it appears evident
that this will be more perfectly and punctually done by one national
government than it could be either by thirteen separate States or by
three or four distinct confederacies.

Because when once an efficient national government is established, the
best men in the country will not only consent to serve, but also will
generally be appointed to manage it; for, although town or country, or
other contracted influence, may place men in State assemblies, or
senates, or courts of justice, or executive departments, yet more
general and extensive reputation for talents and other qualifications
will be necessary to recommend men to offices under the national
government,—especially as it will have the widest field for choice, and
never experience that want of proper persons which is not uncommon in
some of the States. Hence, it will result that the administration, the
political counsels, and the judicial decisions of the national
government will be more wise, systematical, and judicious than those of
individual States, and consequently more satisfactory with respect to
other nations, as well as more SAFE with respect to us.

Because, under the national government, treaties and articles of
treaties, as well as the laws of nations, will always be expounded in
one sense and executed in the same manner,—whereas, adjudications on
the same points and questions, in thirteen States, or in three or four
confederacies, will not always accord or be consistent; and that, as
well from the variety of independent courts and judges appointed by
different and independent governments, as from the different local laws
and interests which may affect and influence them. The wisdom of the
convention, in committing such questions to the jurisdiction and
judgment of courts appointed by and responsible only to one national
government, cannot be too much commended.

Because the prospect of present loss or advantage may often tempt the
governing party in one or two States to swerve from good faith and
justice; but those temptations, not reaching the other States, and
consequently having little or no influence on the national government,
the temptation will be fruitless, and good faith and justice be
preserved. The case of the treaty of peace with Britain adds great
weight to this reasoning.

Because, even if the governing party in a State should be disposed to
resist such temptations, yet as such temptations may, and commonly do,
result from circumstances peculiar to the State, and may affect a great
number of the inhabitants, the governing party may not always be able,
if willing, to prevent the injustice meditated, or to punish the
aggressors. But the national government, not being affected by those
local circumstances, will neither be induced to commit the wrong
themselves, nor want power or inclination to prevent or punish its
commission by others.

So far, therefore, as either designed or accidental violations of
treaties and the laws of nations afford JUST causes of war, they are
less to be apprehended under one general government than under several
lesser ones, and in that respect the former most favors the SAFETY of
the people.

As to those just causes of war which proceed from direct and unlawful
violence, it appears equally clear to me that one good national
government affords vastly more security against dangers of that sort
than can be derived from any other quarter.

Because such violences are more frequently caused by the passions and
interests of a part than of the whole; of one or two States than of the
Union. Not a single Indian war has yet been occasioned by aggressions
of the present federal government, feeble as it is; but there are
several instances of Indian hostilities having been provoked by the
improper conduct of individual States, who, either unable or unwilling
to restrain or punish offenses, have given occasion to the slaughter of
many innocent inhabitants.

The neighborhood of Spanish and British territories, bordering on some
States and not on others, naturally confines the causes of quarrel more
immediately to the borderers. The bordering States, if any, will be
those who, under the impulse of sudden irritation, and a quick sense of
apparent interest or injury, will be most likely, by direct violence,
to excite war with these nations; and nothing can so effectually
obviate that danger as a national government, whose wisdom and prudence
will not be diminished by the passions which actuate the parties
immediately interested.

But not only fewer just causes of war will be given by the national
government, but it will also be more in their power to accommodate and
settle them amicably. They will be more temperate and cool, and in that
respect, as well as in others, will be more in capacity to act
advisedly than the offending State. The pride of states, as well as of
men, naturally disposes them to justify all their actions, and opposes
their acknowledging, correcting, or repairing their errors and
offenses. The national government, in such cases, will not be affected
by this pride, but will proceed with moderation and candor to consider
and decide on the means most proper to extricate them from the
difficulties which threaten them.

Besides, it is well known that acknowledgments, explanations, and
compensations are often accepted as satisfactory from a strong united
nation, which would be rejected as unsatisfactory if offered by a State
or confederacy of little consideration or power.

In the year 1685, the state of Genoa having offended Louis XIV.,
endeavored to appease him. He demanded that they should send their
Doge, or chief magistrate, accompanied by four of their senators, to
FRANCE, to ask his pardon and receive his terms. They were obliged to
submit to it for the sake of peace. Would he on any occasion either
have demanded or have received the like humiliation from Spain, or
Britain, or any other POWERFUL nation?

PUBLIUS.




THE FEDERALIST.
No. IV.

The Same Subject Continued

(Concerning Dangers From Foreign Force and Influence)

For the Independent Journal.

JAY


To the People of the State of New York:

My last paper assigned several reasons why the safety of the people
would be best secured by union against the danger it may be exposed to
by JUST causes of war given to other nations; and those reasons show
that such causes would not only be more rarely given, but would also be
more easily accommodated, by a national government than either by the
State governments or the proposed little confederacies.

But the safety of the people of America against dangers from FOREIGN
force depends not only on their forbearing to give JUST causes of war
to other nations, but also on their placing and continuing themselves
in such a situation as not to INVITE hostility or insult; for it need
not be observed that there are PRETENDED as well as just causes of war.

It is too true, however disgraceful it may be to human nature, that
nations in general will make war whenever they have a prospect of
getting anything by it; nay, absolute monarchs will often make war when
their nations are to get nothing by it, but for the purposes and
objects merely personal, such as thirst for military glory, revenge for
personal affronts, ambition, or private compacts to aggrandize or
support their particular families or partisans. These and a variety of
other motives, which affect only the mind of the sovereign, often lead
him to engage in wars not sanctified by justice or the voice and
interests of his people. But, independent of these inducements to war,
which are more prevalent in absolute monarchies, but which well deserve
our attention, there are others which affect nations as often as kings;
and some of them will on examination be found to grow out of our
relative situation and circumstances.

With France and with Britain we are rivals in the fisheries, and can
supply their markets cheaper than they can themselves, notwithstanding
any efforts to prevent it by bounties on their own or duties on foreign
fish.

With them and with most other European nations we are rivals in
navigation and the carrying trade; and we shall deceive ourselves if we
suppose that any of them will rejoice to see it flourish; for, as our
carrying trade cannot increase without in some degree diminishing
theirs, it is more their interest, and will be more their policy, to
restrain than to promote it.

In the trade to China and India, we interfere with more than one
nation, inasmuch as it enables us to partake in advantages which they
had in a manner monopolized, and as we thereby supply ourselves with
commodities which we used to purchase from them.

The extension of our own commerce in our own vessels cannot give
pleasure to any nations who possess territories on or near this
continent, because the cheapness and excellence of our productions,
added to the circumstance of vicinity, and the enterprise and address
of our merchants and navigators, will give us a greater share in the
advantages which those territories afford, than consists with the
wishes or policy of their respective sovereigns.

Spain thinks it convenient to shut the Mississippi against us on the
one side, and Britain excludes us from the Saint Lawrence on the other;
nor will either of them permit the other waters which are between them
and us to become the means of mutual intercourse and traffic.

From these and such like considerations, which might, if consistent
with prudence, be more amplified and detailed, it is easy to see that
jealousies and uneasinesses may gradually slide into the minds and
cabinets of other nations, and that we are not to expect that they
should regard our advancement in union, in power and consequence by
land and by sea, with an eye of indifference and composure.

The people of America are aware that inducements to war may arise out
of these circumstances, as well as from others not so obvious at
present, and that whenever such inducements may find fit time and
opportunity for operation, pretenses to color and justify them will not
be wanting. Wisely, therefore, do they consider union and a good
national government as necessary to put and keep them in SUCH A
SITUATION as, instead of INVITING war, will tend to repress and
discourage it. That situation consists in the best possible state of
defense, and necessarily depends on the government, the arms, and the
resources of the country.

As the safety of the whole is the interest of the whole, and cannot be
provided for without government, either one or more or many, let us
inquire whether one good government is not, relative to the object in
question, more competent than any other given number whatever.

One government can collect and avail itself of the talents and
experience of the ablest men, in whatever part of the Union they may be
found. It can move on uniform principles of policy. It can harmonize,
assimilate, and protect the several parts and members, and extend the
benefit of its foresight and precautions to each. In the formation of
treaties, it will regard the interest of the whole, and the particular
interests of the parts as connected with that of the whole. It can
apply the resources and power of the whole to the defense of any
particular part, and that more easily and expeditiously than State
governments or separate confederacies can possibly do, for want of
concert and unity of system. It can place the militia under one plan of
discipline, and, by putting their officers in a proper line of
subordination to the Chief Magistrate, will, as it were, consolidate
them into one corps, and thereby render them more efficient than if
divided into thirteen or into three or four distinct independent
companies.

What would the militia of Britain be if the English militia obeyed the
government of England, if the Scotch militia obeyed the government of
Scotland, and if the Welsh militia obeyed the government of Wales?
Suppose an invasion; would those three governments (if they agreed at
all) be able, with all their respective forces, to operate against the
enemy so effectually as the single government of Great Britain would?

We have heard much of the fleets of Britain, and the time may come, if
we are wise, when the fleets of America may engage attention. But if
one national government, had not so regulated the navigation of Britain
as to make it a nursery for seamen—if one national government had not
called forth all the national means and materials for forming fleets,
their prowess and their thunder would never have been celebrated. Let
England have its navigation and fleet—let Scotland have its navigation
and fleet—let Wales have its navigation and fleet—let Ireland have its
navigation and fleet—let those four of the constituent parts of the
British empire be under four independent governments, and it is easy to
perceive how soon they would each dwindle into comparative
insignificance.

Apply these facts to our own case. Leave America divided into thirteen
or, if you please, into three or four independent governments—what
armies could they raise and pay—what fleets could they ever hope to
have? If one was attacked, would the others fly to its succor, and
spend their blood and money in its defense? Would there be no danger of
their being flattered into neutrality by its specious promises, or
seduced by a too great fondness for peace to decline hazarding their
tranquillity and present safety for the sake of neighbors, of whom
perhaps they have been jealous, and whose importance they are content
to see diminished? Although such conduct would not be wise, it would,
nevertheless, be natural. The history of the states of Greece, and of
other countries, abounds with such instances, and it is not improbable
that what has so often happened would, under similar circumstances,
happen again.

But admit that they might be willing to help the invaded State or
confederacy. How, and when, and in what proportion shall aids of men
and money be afforded? Who shall command the allied armies, and from
which of them shall he receive his orders? Who shall settle the terms
of peace, and in case of disputes what umpire shall decide between them
and compel acquiescence? Various difficulties and inconveniences would
be inseparable from such a situation; whereas one government, watching
over the general and common interests, and combining and directing the
powers and resources of the whole, would be free from all these
embarrassments, and conduce far more to the safety of the people.

But whatever may be our situation, whether firmly united under one
national government, or split into a number of confederacies, certain
it is, that foreign nations will know and view it exactly as it is; and
they will act toward us accordingly. If they see that our national
government is efficient and well administered, our trade prudently
regulated, our militia properly organized and disciplined, our
resources and finances discreetly managed, our credit re-established,
our people free, contented, and united, they will be much more disposed
to cultivate our friendship than provoke our resentment. If, on the
other hand, they find us either destitute of an effectual government
(each State doing right or wrong, as to its rulers may seem
convenient), or split into three or four independent and probably
discordant republics or confederacies, one inclining to Britain,
another to France, and a third to Spain, and perhaps played off against
each other by the three, what a poor, pitiful figure will America make
in their eyes! How liable would she become not only to their contempt
but to their outrage, and how soon would dear-bought experience
proclaim that when a people or family so divide, it never fails to be
against themselves.

PUBLIUS.




THE FEDERALIST.
No. V.

The Same Subject Continued

(Concerning Dangers From Foreign Force and Influence)

For the Independent Journal.

JAY


To the People of the State of New York:

Queen Anne, in her letter of the 1st July, 1706, to the Scotch
Parliament, makes some observations on the importance of the UNION then
forming between England and Scotland, which merit our attention. I
shall present the public with one or two extracts from it: “An entire
and perfect union will be the solid foundation of lasting peace: It
will secure your religion, liberty, and property; remove the
animosities amongst yourselves, and the jealousies and differences
betwixt our two kingdoms. It must increase your strength, riches, and
trade; and by this union the whole island, being joined in affection
and free from all apprehensions of different interest, will be ENABLED
TO RESIST ALL ITS ENEMIES.” “We most earnestly recommend to you
calmness and unanimity in this great and weighty affair, that the union
may be brought to a happy conclusion, being the only EFFECTUAL way to
secure our present and future happiness, and disappoint the designs of
our and your enemies, who will doubtless, on this occasion, USE THEIR
UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION.”

It was remarked in the preceding paper, that weakness and divisions at
home would invite dangers from abroad; and that nothing would tend more
to secure us from them than union, strength, and good government within
ourselves. This subject is copious and cannot easily be exhausted.

The history of Great Britain is the one with which we are in general
the best acquainted, and it gives us many useful lessons. We may profit
by their experience without paying the price which it cost them.
Although it seems obvious to common sense that the people of such an
island should be but one nation, yet we find that they were for ages
divided into three, and that those three were almost constantly
embroiled in quarrels and wars with one another. Notwithstanding their
true interest with respect to the continental nations was really the
same, yet by the arts and policy and practices of those nations, their
mutual jealousies were perpetually kept inflamed, and for a long series
of years they were far more inconvenient and troublesome than they were
useful and assisting to each other.

Should the people of America divide themselves into three or four
nations, would not the same thing happen? Would not similar jealousies
arise, and be in like manner cherished? Instead of their being “joined
in affection” and free from all apprehension of different “interests,”
envy and jealousy would soon extinguish confidence and affection, and
the partial interests of each confederacy, instead of the general
interests of all America, would be the only objects of their policy and
pursuits. Hence, like most other BORDERING nations, they would always
be either involved in disputes and war, or live in the constant
apprehension of them.

The most sanguine advocates for three or four confederacies cannot
reasonably suppose that they would long remain exactly on an equal
footing in point of strength, even if it was possible to form them so
at first; but, admitting that to be practicable, yet what human
contrivance can secure the continuance of such equality? Independent of
those local circumstances which tend to beget and increase power in one
part and to impede its progress in another, we must advert to the
effects of that superior policy and good management which would
probably distinguish the government of one above the rest, and by which
their relative equality in strength and consideration would be
destroyed. For it cannot be presumed that the same degree of sound
policy, prudence, and foresight would uniformly be observed by each of
these confederacies for a long succession of years.

Whenever, and from whatever causes, it might happen, and happen it
would, that any one of these nations or confederacies should rise on
the scale of political importance much above the degree of her
neighbors, that moment would those neighbors behold her with envy and
with fear. Both those passions would lead them to countenance, if not
to promote, whatever might promise to diminish her importance; and
would also restrain them from measures calculated to advance or even to
secure her prosperity. Much time would not be necessary to enable her
to discern these unfriendly dispositions. She would soon begin, not
only to lose confidence in her neighbors, but also to feel a
disposition equally unfavorable to them. Distrust naturally creates
distrust, and by nothing is good-will and kind conduct more speedily
changed than by invidious jealousies and uncandid imputations, whether
expressed or implied.

The North is generally the region of strength, and many local
circumstances render it probable that the most Northern of the proposed
confederacies would, at a period not very distant, be unquestionably
more formidable than any of the others. No sooner would this become
evident than the NORTHERN HIVE would excite the same ideas and
sensations in the more southern parts of America which it formerly did
in the southern parts of Europe. Nor does it appear to be a rash
conjecture that its young swarms might often be tempted to gather honey
in the more blooming fields and milder air of their luxurious and more
delicate neighbors.

They who well consider the history of similar divisions and
confederacies will find abundant reason to apprehend that those in
contemplation would in no other sense be neighbors than as they would
be borderers; that they would neither love nor trust one another, but
on the contrary would be a prey to discord, jealousy, and mutual
injuries; in short, that they would place us exactly in the situations
in which some nations doubtless wish to see us, viz., FORMIDABLE ONLY
TO EACH OTHER.

From these considerations it appears that those gentlemen are greatly
mistaken who suppose that alliances offensive and defensive might be
formed between these confederacies, and would produce that combination
and union of wills of arms and of resources, which would be necessary
to put and keep them in a formidable state of defense against foreign
enemies.

When did the independent states, into which Britain and Spain were
formerly divided, combine in such alliance, or unite their forces
against a foreign enemy? The proposed confederacies will be DISTINCT
NATIONS. Each of them would have its commerce with foreigners to
regulate by distinct treaties; and as their productions and commodities
are different and proper for different markets, so would those treaties
be essentially different. Different commercial concerns must create
different interests, and of course different degrees of political
attachment to and connection with different foreign nations. Hence it
might and probably would happen that the foreign nation with whom the
SOUTHERN confederacy might be at war would be the one with whom the
NORTHERN confederacy would be the most desirous of preserving peace and
friendship. An alliance so contrary to their immediate interest would
not therefore be easy to form, nor, if formed, would it be observed and
fulfilled with perfect good faith.

Nay, it is far more probable that in America, as in Europe, neighboring
nations, acting under the impulse of opposite interests and unfriendly
passions, would frequently be found taking different sides. Considering
our distance from Europe, it would be more natural for these
confederacies to apprehend danger from one another than from distant
nations, and therefore that each of them should be more desirous to
guard against the others by the aid of foreign alliances, than to guard
against foreign dangers by alliances between themselves. And here let
us not forget how much more easy it is to receive foreign fleets into
our ports, and foreign armies into our country, than it is to persuade
or compel them to depart. How many conquests did the Romans and others
make in the characters of allies, and what innovations did they under
the same character introduce into the governments of those whom they
pretended to protect.

Let candid men judge, then, whether the division of America into any
given number of independent sovereignties would tend to secure us
against the hostilities and improper interference of foreign nations.

PUBLIUS.




THE FEDERALIST.
No. VI.

Concerning Dangers from Dissensions Between the States

For the Independent Journal.

HAMILTON


To the People of the State of New York:

The three last numbers of this paper have been dedicated to an
enumeration of the dangers to which we should be exposed, in a state of
disunion, from the arms and arts of foreign nations. I shall now
proceed to delineate dangers of a different and, perhaps, still more
alarming kind—those which will in all probability flow from dissensions
between the States themselves, and from domestic factions and
convulsions. These have been already in some instances slightly
anticipated; but they deserve a more particular and more full
investigation.

A man must be far gone in Utopian speculations who can seriously doubt
that, if these States should either be wholly disunited, or only united
in partial confederacies, the subdivisions into which they might be
thrown would have frequent and violent contests with each other. To
presume a want of motives for such contests as an argument against
their existence, would be to forget that men are ambitious, vindictive,
and rapacious. To look for a continuation of harmony between a number
of independent, unconnected sovereignties in the same neighborhood,
would be to disregard the uniform course of human events, and to set at
defiance the accumulated experience of ages.

The causes of hostility among nations are innumerable. There are some
which have a general and almost constant operation upon the collective
bodies of society. Of this description are the love of power or the
desire of pre-eminence and dominion—the jealousy of power, or the
desire of equality and safety. There are others which have a more
circumscribed though an equally operative influence within their
spheres. Such are the rivalships and competitions of commerce between
commercial nations. And there are others, not less numerous than either
of the former, which take their origin entirely in private passions; in
the attachments, enmities, interests, hopes, and fears of leading
individuals in the communities of which they are members. Men of this
class, whether the favorites of a king or of a people, have in too many
instances abused the confidence they possessed; and assuming the
pretext of some public motive, have not scrupled to sacrifice the
national tranquillity to personal advantage or personal gratification.

The celebrated Pericles, in compliance with the resentment of a
prostitute,[1] at the expense of much of the blood and treasure of his
countrymen, attacked, vanquished, and destroyed the city of the
SAMNIANS. The same man, stimulated by private pique against the
MEGARENSIANS,[2] another nation of Greece, or to avoid a prosecution
with which he was threatened as an accomplice of a supposed theft of
the statuary Phidias,[3] or to get rid of the accusations prepared to
be brought against him for dissipating the funds of the state in the
purchase of popularity,[4] or from a combination of all these causes,
was the primitive author of that famous and fatal war, distinguished in
the Grecian annals by the name of the PELOPONNESIAN war; which, after
various vicissitudes, intermissions, and renewals, terminated in the
ruin of the Athenian commonwealth.

The ambitious cardinal, who was prime minister to Henry VIII.,
permitting his vanity to aspire to the triple crown,[5] entertained
hopes of succeeding in the acquisition of that splendid prize by the
influence of the Emperor Charles V. To secure the favor and interest of
this enterprising and powerful monarch, he precipitated England into a
war with France, contrary to the plainest dictates of policy, and at
the hazard of the safety and independence, as well of the kingdom over
which he presided by his counsels, as of Europe in general. For if
there ever was a sovereign who bid fair to realize the project of
universal monarchy, it was the Emperor Charles V., of whose intrigues
Wolsey was at once the instrument and the dupe.

The influence which the bigotry of one female,[6] the petulance of
another,[7] and the cabals of a third,[8] had in the contemporary
policy, ferments, and pacifications, of a considerable part of Europe,
are topics that have been too often descanted upon not to be generally
known.

To multiply examples of the agency of personal considerations in the
production of great national events, either foreign or domestic,
according to their direction, would be an unnecessary waste of time.
Those who have but a superficial acquaintance with the sources from
which they are to be drawn, will themselves recollect a variety of
instances; and those who have a tolerable knowledge of human nature
will not stand in need of such lights to form their opinion either of
the reality or extent of that agency. Perhaps, however, a reference,
tending to illustrate the general principle, may with propriety be made
to a case which has lately happened among ourselves. If Shays had not
been a DESPERATE DEBTOR, it is much to be doubted whether Massachusetts
would have been plunged into a civil war.

But notwithstanding the concurring testimony of experience, in this
particular, there are still to be found visionary or designing men, who
stand ready to advocate the paradox of perpetual peace between the
States, though dismembered and alienated from each other. The genius of
republics (say they) is pacific; the spirit of commerce has a tendency
to soften the manners of men, and to extinguish those inflammable
humors which have so often kindled into wars. Commercial republics,
like ours, will never be disposed to waste themselves in ruinous
contentions with each other. They will be governed by mutual interest,
and will cultivate a spirit of mutual amity and concord.

Is it not (we may ask these projectors in politics) the true interest
of all nations to cultivate the same benevolent and philosophic spirit?
If this be their true interest, have they in fact pursued it? Has it
not, on the contrary, invariably been found that momentary passions,
and immediate interest, have a more active and imperious control over
human conduct than general or remote considerations of policy, utility
or justice? Have republics in practice been less addicted to war than
monarchies? Are not the former administered by MEN as well as the
latter? Are there not aversions, predilections, rivalships, and desires
of unjust acquisitions, that affect nations as well as kings? Are not
popular assemblies frequently subject to the impulses of rage,
resentment, jealousy, avarice, and of other irregular and violent
propensities? Is it not well known that their determinations are often
governed by a few individuals in whom they place confidence, and are,
of course, liable to be tinctured by the passions and views of those
individuals? Has commerce hitherto done anything more than change the
objects of war? Is not the love of wealth as domineering and
enterprising a passion as that of power or glory? Have there not been
as many wars founded upon commercial motives since that has become the
prevailing system of nations, as were before occasioned by the cupidity
of territory or dominion? Has not the spirit of commerce, in many
instances, administered new incentives to the appetite, both for the
one and for the other? Let experience, the least fallible guide of
human opinions, be appealed to for an answer to these inquiries.

Sparta, Athens, Rome, and Carthage were all republics; two of them,
Athens and Carthage, of the commercial kind. Yet were they as often
engaged in wars, offensive and defensive, as the neighboring monarchies
of the same times. Sparta was little better than a wellregulated camp;
and Rome was never sated of carnage and conquest.

Carthage, though a commercial republic, was the aggressor in the very
war that ended in her destruction. Hannibal had carried her arms into
the heart of Italy and to the gates of Rome, before Scipio, in turn,
gave him an overthrow in the territories of Carthage, and made a
conquest of the commonwealth.

Venice, in later times, figured more than once in wars of ambition,
till, becoming an object to the other Italian states, Pope Julius II.
found means to accomplish that formidable league,[9] which gave a
deadly blow to the power and pride of this haughty republic.

The provinces of Holland, till they were overwhelmed in debts and
taxes, took a leading and conspicuous part in the wars of Europe. They
had furious contests with England for the dominion of the sea, and were
among the most persevering and most implacable of the opponents of
Louis XIV.

In the government of Britain the representatives of the people compose
one branch of the national legislature. Commerce has been for ages the
predominant pursuit of that country. Few nations, nevertheless, have
been more frequently engaged in war; and the wars in which that kingdom
has been engaged have, in numerous instances, proceeded from the
people.

There have been, if I may so express it, almost as many popular as
royal wars. The cries of the nation and the importunities of their
representatives have, upon various occasions, dragged their monarchs
into war, or continued them in it, contrary to their inclinations, and
sometimes contrary to the real interests of the State. In that
memorable struggle for superiority between the rival houses of AUSTRIA
and BOURBON, which so long kept Europe in a flame, it is well known
that the antipathies of the English against the French, seconding the
ambition, or rather the avarice, of a favorite leader,[10] protracted
the war beyond the limits marked out by sound policy, and for a
considerable time in opposition to the views of the court.

The wars of these two last-mentioned nations have in a great measure
grown out of commercial considerations;—the desire of supplanting and
the fear of being supplanted either in particular branches of traffic,
or in the general advantages of trade and navigation; and sometimes
even the more culpable desire of sharing in the commerce of other
nations, without their consent.

The last war but two between Britain and Spain, sprang from the
attempts of the English merchants, to prosecute an illicit trade with
the Spanish main. These unjustifiable practices on their part, produced
severities on the part of the Spaniards, towards 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 coasts, 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 the
body to the ministry. Letters of reprisal were granted, and a war
ensued; which, in its consequences, overthrew all the alliances that
but twenty years before had been formed, with sanguine expectations of
the most beneficial fruits.

From this summary of what has taken place in other countries, whose
situations have borne the nearest resemblance to our own, what reason
can we have to confide in those reveries which would seduce us into an
expectation of peace and cordiality between the members of the present
confederacy, in a state of separation? Have we not already seen enough
of the fallacy and extravagance of those idle theories which have
amused us with promises of an exemption from the imperfections,
weaknesses and evils incident to society in every shape? Is it not time
to awake from the deceitful dream of a golden age, and to adopt as a
practical maxim for the direction of our political conduct that we, as
well as the other inhabitants of the globe, are yet remote from the
happy empire of perfect wisdom and perfect virtue?

Let the point of extreme depression to which our national dignity and
credit have sunk, let the inconveniences felt everywhere from a lax and
ill administration of government, let the revolt of a part of the State
of North Carolina, the late menacing disturbances in Pennsylvania, and
the actual insurrections and rebellions in Massachusetts, declare—!

So far is the general sense of mankind from corresponding with the
tenets of those who endeavor to lull asleep our apprehensions of
discord and hostility between the States, in the event of disunion,
that it has from long observation of the progress of society become a
sort of axiom in politics, that vicinity or nearness of situation,
constitutes nations natural enemies. An intelligent writer expresses
himself on this subject to this effect: “NEIGHBORING NATIONS (says he)
are naturally enemies of each other unless their common weakness forces
them to league in a CONFEDERATE REPUBLIC, and their constitution
prevents the differences that neighborhood occasions, extinguishing
that secret jealousy which disposes all states to aggrandize themselves
at the expense of their neighbors.”[11] This passage, at the same time,
points out the EVIL and suggests the REMEDY.

PUBLIUS.

 [1] Aspasia, _vide_ Plutarch’s _Life of Pericles_.

 [2] _Ibid_.

 [3] _Ibid_. Phidias was supposed to have stolen some public gold, with
 the connivance of Pericles, for the embellishment of the statue of
 Minerva.

 [4] _Ibid_.

 [5] Worn by the popes.

 [6] Madame de Maintenon.

 [7] Duchess of Marlborough.

 [8] Madame de Pompadour.

 [9] The League of Cambray, comprehending the Emperor, the King of
 France, the King of Aragon, and most of the Italian princes and
 states.

 [10] The Duke of Marlborough.

 [11] _Vide Principes des Négociations_ par l’Abbé de Mably.




THE FEDERALIST.
No. VII.

The Same Subject Continued

(Concerning Dangers from Dissensions Between the States)

For the Independent Journal.

HAMILTON


To the People of the State of New York:

It is sometimes asked, with an air of seeming triumph, what inducements
could the States have, if disunited, to make war upon each other? It
would be a full answer to this question to say—precisely the same
inducements which have, at different times, deluged in blood all the
nations in the world. But, unfortunately for us, the question admits of
a more particular answer. There are causes of differences within our
immediate contemplation, of the tendency of which, even under the
restraints of a federal constitution, we have had sufficient experience
to enable us to form a judgment of what might be expected if those
restraints were removed.

Territorial disputes have at all times been found one of the most
fertile sources of hostility among nations. Perhaps the greatest
proportion of wars that have desolated the earth have sprung from this
origin. This cause would exist among us in full force. We have a vast
tract of unsettled territory within the boundaries of the United
States. There still are discordant and undecided claims between several
of them, and the dissolution of the Union would lay a foundation for
similar claims between them all. It is well known that they have
heretofore had serious and animated discussion concerning the rights to
the lands which were ungranted at the time of the Revolution, and which
usually went under the name of crown lands. The States within the
limits of whose colonial governments they were comprised have claimed
them as their property, the others have contended that the rights of
the crown in this article devolved upon the Union; especially as to all
that part of the Western territory which, either by actual possession,
or through the submission of the Indian proprietors, was subjected to
the jurisdiction of the king of Great Britain, till it was relinquished
in the treaty of peace. This, it has been said, was at all events an
acquisition to the Confederacy by compact with a foreign power. It has
been the prudent policy of Congress to appease this controversy, by
prevailing upon the States to make cessions to the United States for
the benefit of the whole. This has been so far accomplished as, under a
continuation of the Union, to afford a decided prospect of an amicable
termination of the dispute. A dismemberment of the Confederacy,
however, would revive this dispute, and would create others on the same
subject. At present, a large part of the vacant Western territory is,
by cession at least, if not by any anterior right, the common property
of the Union. If that were at an end, the States which made the
cession, on a principle of federal compromise, would be apt when the
motive of the grant had ceased, to reclaim the lands as a reversion.
The other States would no doubt insist on a proportion, by right of
representation. Their argument would be, that a grant, once made, could
not be revoked; and that the justice of participating in territory
acquired or secured by the joint efforts of the Confederacy, remained
undiminished. If, contrary to probability, it should be admitted by all
the States, that each had a right to a share of this common stock,
there would still be a difficulty to be surmounted, as to a proper rule
of apportionment. Different principles would be set up by different
States for this purpose; and as they would affect the opposite
interests of the parties, they might not easily be susceptible of a
pacific adjustment.

In the wide field of Western territory, therefore, we perceive an ample
theatre for hostile pretensions, without any umpire or common judge to
interpose between the contending parties. To reason from the past to
the future, we shall have good ground to apprehend, that the sword
would sometimes be appealed to as the arbiter of their differences. The
circumstances of the dispute between Connecticut and Pennsylvania,
respecting the land at Wyoming, admonish us not to be sanguine in
expecting an easy accommodation of such differences. The articles of
confederation obliged the parties to submit the matter to the decision
of a federal court. The submission was made, and the court decided in
favor of Pennsylvania. But Connecticut gave strong indications of
dissatisfaction with that determination; nor did she appear to be
entirely resigned to it, till, by negotiation and management, something
like an equivalent was found for the loss she supposed herself to have
sustained. Nothing here said is intended to convey the slightest
censure on the conduct of that State. She no doubt sincerely believed
herself to have been injured by the decision; and States, like
individuals, acquiesce with great reluctance in determinations to their
disadvantage.

Those who had an opportunity of seeing the inside of the transactions
which attended the progress of the controversy between this State and
the district of Vermont, can vouch the opposition we experienced, as
well from States not interested as from those which were interested in
the claim; and can attest the danger to which the peace of the
Confederacy might have been exposed, had this State attempted to assert
its rights by force. Two motives preponderated in that opposition: one,
a jealousy entertained of our future power; and the other, the interest
of certain individuals of influence in the neighboring States, who had
obtained grants of lands under the actual government of that district.
Even the States which brought forward claims, in contradiction to ours,
seemed more solicitous to dismember this State, than to establish their
own pretensions. These were New Hampshire, Massachusetts, and
Connecticut. New Jersey and Rhode Island, upon all occasions,
discovered a warm zeal for the independence of Vermont; and Maryland,
till alarmed by the appearance of a connection between Canada and that
State, entered deeply into the same views. These being small States,
saw with an unfriendly eye the perspective of our growing greatness. In
a review of these transactions we may trace some of the causes which
would be likely to embroil the States with each other, if it should be
their unpropitious destiny to become disunited.

The competitions of commerce would be another fruitful source of
contention. The States less favorably circumstanced would be desirous
of escaping from the disadvantages of local situation, and of sharing
in the advantages of their more fortunate neighbors. Each State, or
separate confederacy, would pursue a system of commercial policy
peculiar to itself. This would occasion distinctions, preferences, and
exclusions, which would beget discontent. The habits of intercourse, on
the basis of equal privileges, to which we have been accustomed since
the earliest settlement of the country, would give a keener edge to
those causes of discontent than they would naturally have independent
of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE
THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT
SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise,
which characterizes the commercial part of America, has left no
occasion of displaying itself unimproved. It is not at all probable
that this unbridled spirit would pay much respect to those regulations
of trade by which particular States might endeavor to secure exclusive
benefits to their own citizens. The infractions of these regulations,
on one side, the efforts to prevent and repel them, on the other, would
naturally lead to outrages, and these to reprisals and wars.

The opportunities which some States would have of rendering others
tributary to them by commercial regulations would be impatiently
submitted to by the tributary States. The relative situation of New
York, Connecticut, and New Jersey would afford an example of this kind.
New York, from the necessities of revenue, must lay duties on her
importations. A great part of these duties must be paid by the
inhabitants of the two other States in the capacity of consumers of
what we import. New York would neither be willing nor able to forego
this advantage. Her citizens would not consent that a duty paid by them
should be remitted in favor of the citizens of her neighbors; nor would
it be practicable, if there were not this impediment in the way, to
distinguish the customers in our own markets. Would Connecticut and New
Jersey long submit to be taxed by New York for her exclusive benefit?
Should we be long permitted to remain in the quiet and undisturbed
enjoyment of a metropolis, from the possession of which we derived an
advantage so odious to our neighbors, and, in their opinion, so
oppressive? Should we be able to preserve it against the incumbent
weight of Connecticut on the one side, and the co-operating pressure of
New Jersey on the other? These are questions that temerity alone will
answer in the affirmative.

The public debt of the Union would be a further cause of collision
between the separate States or confederacies. The apportionment, in the
first instance, and the progressive extinguishment afterward, would be
alike productive of ill-humor and animosity. How would it be possible
to agree upon a rule of apportionment satisfactory to all? There is
scarcely any that can be proposed which is entirely free from real
objections. These, as usual, would be exaggerated by the adverse
interest of the parties. There are even dissimilar views among the
States as to the general principle of discharging the public debt. Some
of them, either less impressed with the importance of national credit,
or because their citizens have little, if any, immediate interest in
the question, feel an indifference, if not a repugnance, to the payment
of the domestic debt at any rate. These would be inclined to magnify
the difficulties of a distribution. Others of them, a numerous body of
whose citizens are creditors to the public beyond proportion of the
State in the total amount of the national debt, would be strenuous for
some equitable and effective provision. The procrastinations of the
former would excite the resentments of the latter. The settlement of a
rule would, in the meantime, be postponed by real differences of
opinion and affected delays. The citizens of the States interested
would clamour; foreign powers would urge for the satisfaction of their
just demands, and the peace of the States would be hazarded to the
double contingency of external invasion and internal contention.

Suppose the difficulties of agreeing upon a rule surmounted, and the
apportionment made. Still there is great room to suppose that the rule
agreed upon would, upon experiment, be found to bear harder upon some
States than upon others. Those which were sufferers by it would
naturally seek for a mitigation of the burden. The others would as
naturally be disinclined to a revision, which was likely to end in an
increase of their own incumbrances. Their refusal would be too
plausible a pretext to the complaining States to withhold their
contributions, not to be embraced with avidity; and the non-compliance
of these States with their engagements would be a ground of bitter
discussion and altercation. If even the rule adopted should in practice
justify the equality of its principle, still delinquencies in payments
on the part of some of the States would result from a diversity of
other causes—the real deficiency of resources; the mismanagement of
their finances; accidental disorders in the management of the
government; and, in addition to the rest, the reluctance with which men
commonly part with money for purposes that have outlived the exigencies
which produced them, and interfere with the supply of immediate wants.
Delinquencies, from whatever causes, would be productive of complaints,
recriminations, and quarrels. There is, perhaps, nothing more likely to
disturb the tranquillity of nations than their being bound to mutual
contributions for any common object that does not yield an equal and
coincident benefit. For it is an observation, as true as it is trite,
that there is nothing men differ so readily about as the payment of
money.

Laws in violation of private contracts, as they amount to aggressions
on the rights of those States whose citizens are injured by them, may
be considered as another probable source of hostility. We are not
authorized to expect that a more liberal or more equitable spirit would
preside over the legislations of the individual States hereafter, if
unrestrained by any additional checks, than we have heretofore seen in
too many instances disgracing their several codes. We have observed the
disposition to retaliation excited in Connecticut in consequence of the
enormities perpetrated by the Legislature of Rhode Island; and we
reasonably infer that, in similar cases, under other circumstances, a
war, not of PARCHMENT, but of the sword, would chastise such atrocious
breaches of moral obligation and social justice.

The probability of incompatible alliances between the different States
or confederacies and different foreign nations, and the effects of this
situation upon the peace of the whole, have been sufficiently unfolded
in some preceding papers. From the view they have exhibited of this
part of the subject, this conclusion is to be drawn, that America, if
not connected at all, or only by the feeble tie of a simple league,
offensive and defensive, would, by the operation of such jarring
alliances, be gradually entangled in all the pernicious labyrinths of
European politics and wars; and by the destructive contentions of the
parts into which she was divided, would be likely to become a prey to
the artifices and machinations of powers equally the enemies of them
all. _Divide et impera_[1] must be the motto of every nation that
either hates or fears us.[2]

PUBLIUS.

 [1] Divide and command.

 [2] In order that the whole subject of these papers may as soon as
 possible be laid before the public, it is proposed to publish them
 four times a week—on Tuesday in the New York Packet and on Thursday in
 the Daily Advertiser.




THE FEDERALIST.
No. VIII.

The Consequences of Hostilities Between the States

From the New York Packet.

Tuesday, November 20, 1787.

HAMILTON


To the People of the State of New York:

Assuming it therefore as an established truth that the several States,
in case of disunion, or such combinations of them as might happen to be
formed out of the wreck of the general Confederacy, would be subject to
those vicissitudes of peace and war, of friendship and enmity, with
each other, which have fallen to the lot of all neighboring nations not
united under one government, let us enter into a concise detail of some
of the consequences that would attend such a situation.

War between the States, in the first period of their separate
existence, would be accompanied with much greater distresses than it
commonly is in those countries where regular military establishments
have long obtained. The disciplined armies always kept on foot on the
continent of Europe, though they bear a malignant aspect to liberty and
economy, have, notwithstanding, been productive of the signal advantage
of rendering sudden conquests impracticable, and of preventing that
rapid desolation which used to mark the progress of war prior to their
introduction. The art of fortification has contributed to the same
ends. The nations of Europe are encircled with chains of fortified
places, which mutually obstruct invasion. Campaigns are wasted in
reducing two or three frontier garrisons, to gain admittance into an
enemy’s country. Similar impediments occur at every step, to exhaust
the strength and delay the progress of an invader. Formerly, an
invading army would penetrate into the heart of a neighboring country
almost as soon as intelligence of its approach could be received; but
now a comparatively small force of disciplined troops, acting on the
defensive, with the aid of posts, is able to impede, and finally to
frustrate, the enterprises of one much more considerable. The history
of war, in that quarter of the globe, is no longer a history of nations
subdued and empires overturned, but of towns taken and retaken; of
battles that decide nothing; of retreats more beneficial than
victories; of much effort and little acquisition.

In this country the scene would be altogether reversed. The jealousy of
military establishments would postpone them as long as possible. The
want of fortifications, leaving the frontiers of one state open to
another, would facilitate inroads. The populous States would, with
little difficulty, overrun their less populous neighbors. Conquests
would be as easy to be made as difficult to be retained. War,
therefore, would be desultory and predatory. PLUNDER and devastation
ever march in the train of irregulars. The calamities of individuals
would make the principal figure in the events which would characterize
our military exploits.

This picture is not too highly wrought; though, I confess, it would not
long remain a just one. Safety from external danger is the most
powerful director of national conduct. Even the ardent love of liberty
will, after a time, give way to its dictates. The violent destruction
of life and property incident to war, the continual effort and alarm
attendant on a state of continual danger, will compel nations the most
attached to liberty to resort for repose and security to institutions
which have a tendency to destroy their civil and political rights. To
be more safe, they at length become willing to run the risk of being
less free.

The institutions chiefly alluded to are STANDING ARMIES and the
correspondent appendages of military establishments. Standing armies,
it is said, are not provided against in the new Constitution; and it is
therefore inferred that they may exist under it.[1] Their existence,
however, from the very terms of the proposition, is, at most,
problematical and uncertain. But standing armies, it may be replied,
must inevitably result from a dissolution of the Confederacy. Frequent
war and constant apprehension, which require a state of as constant
preparation, will infallibly produce them. The weaker States or
confederacies would first have recourse to them, to put themselves upon
an equality with their more potent neighbors. They would endeavor to
supply the inferiority of population and resources by a more regular
and effective system of defense, by disciplined troops, and by
fortifications. They would, at the same time, be necessitated to
strengthen the executive arm of government, in doing which their
constitutions would acquire a progressive direction toward monarchy. It
is of the nature of war to increase the executive at the expense of the
legislative authority.

The expedients which have been mentioned would soon give the States or
confederacies that made use of them a superiority over their neighbors.
Small states, or states of less natural strength, under vigorous
governments, and with the assistance of disciplined armies, have often
triumphed over large states, or states of greater natural strength,
which have been destitute of these advantages. Neither the pride nor
the safety of the more important States or confederacies would permit
them long to submit to this mortifying and adventitious superiority.
They would quickly resort to means similar to those by which it had
been effected, to reinstate themselves in their lost pre-eminence.
Thus, we should, in a little time, see established in every part of
this country the same engines of despotism which have been the scourge
of the Old World. This, at least, would be the natural course of
things; and our reasonings will be the more likely to be just, in
proportion as they are accommodated to this standard.

These are not vague inferences drawn from supposed or speculative
defects in a Constitution, the whole power of which is lodged in the
hands of a people, or their representatives and delegates, but they are
solid conclusions, drawn from the natural and necessary progress of
human affairs.

It may, perhaps, be asked, by way of objection to this, why did not
standing armies spring up out of the contentions which so often
distracted the ancient republics of Greece? Different answers, equally
satisfactory, may be given to this question. The industrious habits of
the people of the present day, absorbed in the pursuits of gain, and
devoted to the improvements of agriculture and commerce, are
incompatible with the condition of a nation of soldiers, which was the
true condition of the people of those republics. The means of revenue,
which have been so greatly multiplied by the increase of gold and
silver and of the arts of industry, and the science of finance, which
is the offspring of modern times, concurring with the habits of
nations, have produced an entire revolution in the system of war, and
have rendered disciplined armies, distinct from the body of the
citizens, the inseparable companions of frequent hostility.

There is a wide difference, also, between military establishments in a
country seldom exposed by its situation to internal invasions, and in
one which is often subject to them, and always apprehensive of them.
The rulers of the former can have a good pretext, if they are even so
inclined, to keep on foot armies so numerous as must of necessity be
maintained in the latter. These armies being, in the first case,
rarely, if at all, called into activity for interior defense, the
people are in no danger of being broken to military subordination. The
laws are not accustomed to relaxations, in favor of military
exigencies; the civil state remains in full vigor, neither corrupted,
nor confounded with the principles or propensities of the other state.
The smallness of the army renders the natural strength of the community
an over-match for it; and the citizens, not habituated to look up to
the military power for protection, or to submit to its oppressions,
neither love nor fear the soldiery; they view them with a spirit of
jealous acquiescence in a necessary evil, and stand ready to resist a
power which they suppose may be exerted to the prejudice of their
rights. The army under such circumstances may usefully aid the
magistrate to suppress a small faction, or an occasional mob, or
insurrection; but it will be unable to enforce encroachments against
the united efforts of the great body of the people.

In a country in the predicament last described, the contrary of all
this happens. The perpetual menacings of danger oblige the government
to be always prepared to repel it; its armies must be numerous enough
for instant defense. The continual necessity for their services
enhances the importance of the soldier, and proportionably degrades the
condition of the citizen. The military state becomes elevated above the
civil. The inhabitants of territories, often the theatre of war, are
unavoidably subjected to frequent infringements on their rights, which
serve to weaken their sense of those rights; and by degrees the people
are brought to consider the soldiery not only as their protectors, but
as their superiors. The transition from this disposition to that of
considering them masters, is neither remote nor difficult; but it is
very difficult to prevail upon a people under such impressions, to make
a bold or effectual resistance to usurpations supported by the military
power.

The kingdom of Great Britain falls within the first description. An
insular situation, and a powerful marine, guarding it in a great
measure against the possibility of foreign invasion, supersede the
necessity of a numerous army within the kingdom. A sufficient force to
make head against a sudden descent, till the militia could have time to
rally and embody, is all that has been deemed requisite. No motive of
national policy has demanded, nor would public opinion have tolerated,
a larger number of troops upon its domestic establishment. There has
been, for a long time past, little room for the operation of the other
causes, which have been enumerated as the consequences of internal war.
This peculiar felicity of situation has, in a great degree, contributed
to preserve the liberty which that country to this day enjoys, in spite
of the prevalent venality and corruption. If, on the contrary, Britain
had been situated on the continent, and had been compelled, as she
would have been, by that situation, to make her military establishments
at home coextensive with those of the other great powers of Europe,
she, like them, would in all probability be, at this day, a victim to
the absolute power of a single man. ’T is possible, though not easy,
that the people of that island may be enslaved from other causes; but
it cannot be by the prowess of an army so inconsiderable as that which
has been usually kept up within the kingdom.

If we are wise enough to preserve the Union we may for ages enjoy an
advantage similar to that of an insulated situation. Europe is at a
great distance from us. Her colonies in our vicinity will be likely to
continue too much disproportioned in strength to be able to give us any
dangerous annoyance. Extensive military establishments cannot, in this
position, be necessary to our security. But if we should be disunited,
and the integral parts should either remain separated, or, which is
most probable, should be thrown together into two or three
confederacies, we should be, in a short course of time, in the
predicament of the continental powers of Europe —our liberties would be
a prey to the means of defending ourselves against the ambition and
jealousy of each other.

This is an idea not superficial or futile, but solid and weighty. It
deserves the most serious and mature consideration of every prudent and
honest man of whatever party. If such men will make a firm and solemn
pause, and meditate dispassionately on the importance of this
interesting idea; if they will contemplate it in all its attitudes, and
trace it to all its consequences, they will not hesitate to part with
trivial objections to a Constitution, the rejection of which would in
all probability put a final period to the Union. The airy phantoms that
flit before the distempered imaginations of some of its adversaries
would quickly give place to the more substantial forms of dangers,
real, certain, and formidable.

PUBLIUS.

 [1] This objection will be fully examined in its proper place, and it
 will be shown that the only natural precaution which could have been
 taken on this subject has been taken; and a much better one than is to
 be found in any constitution that has been heretofore framed in
 America, most of which contain no guard at all on this subject.




THE FEDERALIST.
No. IX.

The Union as a Safeguard Against Domestic Faction and Insurrection

For the Independent Journal.

HAMILTON


To the People of the State of New York:

A firm Union will be of the utmost moment to the peace and liberty of
the States, as a barrier against domestic faction and insurrection. It
is impossible to read the history of the petty republics of Greece and
Italy without feeling sensations of horror and disgust at the
distractions with which they were continually agitated, and at the
rapid succession of revolutions by which they were kept in a state of
perpetual vibration between the extremes of tyranny and anarchy. If
they exhibit occasional calms, these only serve as short-lived contrast
to the furious storms that are to succeed. If now and then intervals of
felicity open to view, we behold them with a mixture of regret, arising
from the reflection that the pleasing scenes before us are soon to be
overwhelmed by the tempestuous waves of sedition and party rage. If
momentary rays of glory break forth from the gloom, while they dazzle
us with a transient and fleeting brilliancy, they at the same time
admonish us to lament that the vices of government should pervert the
direction and tarnish the lustre of those bright talents and exalted
endowments for which the favored soils that produced them have been so
justly celebrated.

From the disorders that disfigure the annals of those republics the
advocates of despotism have drawn arguments, not only against the forms
of republican government, but against the very principles of civil
liberty. They have decried all free government as inconsistent with the
order of society, and have indulged themselves in malicious exultation
over its friends and partisans. Happily for mankind, stupendous fabrics
reared on the basis of liberty, which have flourished for ages, have,
in a few glorious instances, refuted their gloomy sophisms. And, I
trust, America will be the broad and solid foundation of other
edifices, not less magnificent, which will be equally permanent
monuments of their errors.

But it is not to be denied that the portraits they have sketched of
republican government were too just copies of the originals from which
they were taken. If it had been found impracticable to have devised
models of a more perfect structure, the enlightened friends to liberty
would have been obliged to abandon the cause of that species of
government as indefensible. The science of politics, however, like most
other sciences, has received great improvement. The efficacy of various
principles is now well understood, which were either not known at all,
or imperfectly known to the ancients. The regular distribution of power
into distinct departments; the introduction of legislative balances and
checks; the institution of courts composed of judges holding their
offices during good behavior; the representation of the people in the
legislature by deputies of their own election: these are wholly new
discoveries, or have made their principal progress towards perfection
in modern times. They are means, and powerful means, by which the
excellences of republican government may be retained and its
imperfections lessened or avoided. To this catalogue of circumstances
that tend to the amelioration of popular systems of civil government, I
shall venture, however novel it may appear to some, to add one more, on
a principle which has been made the foundation of an objection to the
new Constitution; I mean the ENLARGEMENT of the ORBIT within which such
systems are to revolve, either in respect to the dimensions of a single
State or to the consolidation of several smaller States into one great
Confederacy. The latter is that which immediately concerns the object
under consideration. It will, however, be of use to examine the
principle in its application to a single State, which shall be attended
to in another place.

The utility of a Confederacy, as well to suppress faction and to guard
the internal tranquillity of States, as to increase their external
force and security, is in reality not a new idea. It has been practiced
upon in different countries and ages, and has received the sanction of
the most approved writers on the subject of politics. The opponents of
the plan proposed have, with great assiduity, cited and circulated the
observations of Montesquieu on the necessity of a contracted territory
for a republican government. But they seem not to have been apprised of
the sentiments of that great man expressed in another part of his work,
nor to have adverted to the consequences of the principle to which they
subscribe with such ready acquiescence.

When Montesquieu recommends a small extent for republics, the standards
he had in view were of dimensions far short of the limits of almost
every one of these States. Neither Virginia, Massachusetts,
Pennsylvania, New York, North Carolina, nor Georgia can by any means be
compared with the models from which he reasoned and to which the terms
of his description apply. If we therefore take his ideas on this point
as the criterion of truth, we shall be driven to the alternative either
of taking refuge at once in the arms of monarchy, or of splitting
ourselves into an infinity of little, jealous, clashing, tumultuous
commonwealths, the wretched nurseries of unceasing discord, and the
miserable objects of universal pity or contempt. Some of the writers
who have come forward on the other side of the question seem to have
been aware of the dilemma; and have even been bold enough to hint at
the division of the larger States as a desirable thing. Such an
infatuated policy, such a desperate expedient, might, by the
multiplication of petty offices, answer the views of men who possess
not qualifications to extend their influence beyond the narrow circles
of personal intrigue, but it could never promote the greatness or
happiness of the people of America.

Referring the examination of the principle itself to another place, as
has been already mentioned, it will be sufficient to remark here that,
in the sense of the author who has been most emphatically quoted upon
the occasion, it would only dictate a reduction of the SIZE of the more
considerable MEMBERS of the Union, but would not militate against their
being all comprehended in one confederate government. And this is the
true question, in the discussion of which we are at present interested.

So far are the suggestions of Montesquieu from standing in opposition
to a general Union of the States, that he explicitly treats of a
CONFEDERATE REPUBLIC as the expedient for extending the sphere of
popular government, and reconciling the advantages of monarchy with
those of republicanism.

“It is very probable,” (says he[1]) “that mankind would have been
obliged at length to live constantly under the government of a single
person, had they not contrived a kind of constitution that has all the
internal advantages of a republican, together with the external force
of a monarchical government. I mean a CONFEDERATE REPUBLIC.

“This form of government is a convention by which several smaller
STATES agree to become members of a larger ONE, which they intend to
form. It is a kind of assemblage of societies that constitute a new
one, capable of increasing, by means of new associations, till they
arrive to such a degree of power as to be able to provide for the
security of the united body.

“A republic of this kind, able to withstand an external force, may
support itself without any internal corruptions. The form of this
society prevents all manner of inconveniences.

“If a single member should attempt to usurp the supreme authority, he
could not be supposed to have an equal authority and credit in all the
confederate states. Were he to have too great influence over one, this
would alarm the rest. Were he to subdue a part, that which would still
remain free might oppose him with forces independent of those which he
had usurped and overpower him before he could be settled in his
usurpation.

“Should a popular insurrection happen in one of the confederate states
the others are able to quell it. Should abuses creep into one part,
they are reformed by those that remain sound. The state may be
destroyed on one side, and not on the other; the confederacy may be
dissolved, and the confederates preserve their sovereignty.

“As this government is composed of small republics, it enjoys the
internal happiness of each; and with respect to its external situation,
it is possessed, by means of the association, of all the advantages of
large monarchies.”

I have thought it proper to quote at length these interesting passages,
because they contain a luminous abridgment of the principal arguments
in favor of the Union, and must effectually remove the false
impressions which a misapplication of other parts of the work was
calculated to make. They have, at the same time, an intimate connection
with the more immediate design of this paper; which is, to illustrate
the tendency of the Union to repress domestic faction and insurrection.

A distinction, more subtle than accurate, has been raised between a
CONFEDERACY and a CONSOLIDATION of the States. The essential
characteristic of the first is said to be, the restriction of its
authority to the members in their collective capacities, without
reaching to the individuals of whom they are composed. It is contended
that the national council ought to have no concern with any object of
internal administration. An exact equality of suffrage between the
members has also been insisted upon as a leading feature of a
confederate government. These positions are, in the main, arbitrary;
they are supported neither by principle nor precedent. It has indeed
happened, that governments of this kind have generally operated in the
manner which the distinction taken notice of, supposes to be inherent
in their nature; but there have been in most of them extensive
exceptions to the practice, which serve to prove, as far as example
will go, that there is no absolute rule on the subject. And it will be
clearly shown in the course of this investigation that as far as the
principle contended for has prevailed, it has been the cause of
incurable disorder and imbecility in the government.

The definition of a CONFEDERATE REPUBLIC seems simply to be “an
assemblage of societies,” or an association of two or more states into
one state. The extent, modifications, and objects of the federal
authority are mere matters of discretion. So long as the separate
organization of the members be not abolished; so long as it exists, by
a constitutional necessity, for local purposes; though it should be in
perfect subordination to the general authority of the union, it would
still be, in fact and in theory, an association of states, or a
confederacy. The proposed Constitution, so far from implying an
abolition of the State governments, makes them constituent parts of the
national sovereignty, by allowing them a direct representation in the
Senate, and leaves in their possession certain exclusive and very
important portions of sovereign power. This fully corresponds, in every
rational import of the terms, with the idea of a federal government.

In the Lycian confederacy, which consisted of twenty-three CITIES or
republics, the largest were entitled to THREE votes in the COMMON
COUNCIL, those of the middle class to TWO, and the smallest to ONE. The
COMMON COUNCIL had the appointment of all the judges and magistrates of
the respective CITIES. This was certainly the most, delicate species of
interference in their internal administration; for if there be any
thing that seems exclusively appropriated to the local jurisdictions,
it is the appointment of their own officers. Yet Montesquieu, speaking
of this association, says: “Were I to give a model of an excellent
Confederate Republic, it would be that of Lycia.” Thus we perceive that
the distinctions insisted upon were not within the contemplation of
this enlightened civilian; and we shall be led to conclude, that they
are the novel refinements of an erroneous theory.

PUBLIUS.

 [1] _Spirit of Laws_, vol. i., book ix., chap. i.




THE FEDERALIST.
No. X.

The Same Subject Continued

(The Union as a Safeguard Against Domestic Faction and Insurrection)

From the New York Packet.

Friday, November 23, 1787.

MADISON


To the People of the State of New York:

Among the numerous advantages promised by a wellconstructed Union, none
deserves to be more accurately developed than its tendency to break and
control the violence of faction. The friend of popular governments
never finds himself so much alarmed for their character and fate, as
when he contemplates their propensity to this dangerous vice. He will
not fail, therefore, to set a due value on any plan which, without
violating the principles to which he is attached, provides a proper
cure for it. The instability, injustice, and confusion introduced into
the public councils, have, in truth, been the mortal diseases under
which popular governments have everywhere perished; as they continue to
be the favorite and fruitful topics from which the adversaries to
liberty derive their most specious declamations. The valuable
improvements made by the American constitutions on the popular models,
both ancient and modern, cannot certainly be too much admired; but it
would be an unwarrantable partiality, to contend that they have as
effectually obviated the danger on this side, as was wished and
expected. Complaints are everywhere heard from our most considerate and
virtuous citizens, equally the friends of public and private faith, and
of public and personal liberty, that our governments are too unstable,
that the public good is disregarded in the conflicts of rival parties,
and that measures are too often decided, not according to the rules of
justice and the rights of the minor party, but by the superior force of
an interested and overbearing majority. However anxiously we may wish
that these complaints had no foundation, the evidence, of known facts
will not permit us to deny that they are in some degree true. It will
be found, indeed, on a candid review of our situation, that some of the
distresses under which we labor have been erroneously charged on the
operation of our governments; but it will be found, at the same time,
that other causes will not alone account for many of our heaviest
misfortunes; and, particularly, for that prevailing and increasing
distrust of public engagements, and alarm for private rights, which are
echoed from one end of the continent to the other. These must be
chiefly, if not wholly, effects of the unsteadiness and injustice with
which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a
majority or a minority of the whole, who are united and actuated by
some common impulse of passion, or of interest, adversed to the rights
of other citizens, or to the permanent and aggregate interests of the
community.

There are two methods of curing the mischiefs of faction: the one, by
removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one,
by destroying the liberty which is essential to its existence; the
other, by giving to every citizen the same opinions, the same passions,
and the same interests.

It could never be more truly said than of the first remedy, that it was
worse than the disease. Liberty is to faction what air is to fire, an
aliment without which it instantly expires. But it could not be less
folly to abolish liberty, which is essential to political life, because
it nourishes faction, than it would be to wish the annihilation of air,
which is essential to animal life, because it imparts to fire its
destructive agency.

The second expedient is as impracticable as the first would be unwise.
As long as the reason of man continues fallible, and he is at liberty
to exercise it, different opinions will be formed. As long as the
connection subsists between his reason and his self-love, his opinions
and his passions will have a reciprocal influence on each other; and
the former will be objects to which the latter will attach themselves.
The diversity in the faculties of men, from which the rights of
property originate, is not less an insuperable obstacle to a uniformity
of interests. The protection of these faculties is the first object of
government. From the protection of different and unequal faculties of
acquiring property, the possession of different degrees and kinds of
property immediately results; and from the influence of these on the
sentiments and views of the respective proprietors, ensues a division
of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we
see them everywhere brought into different degrees of activity,
according to the different circumstances of civil society. A zeal for
different opinions concerning religion, concerning government, and many
other points, as well of speculation as of practice; an attachment to
different leaders ambitiously contending for pre-eminence and power; or
to persons of other descriptions whose fortunes have been interesting
to the human passions, have, in turn, divided mankind into parties,
inflamed them with mutual animosity, and rendered them much more
disposed to vex and oppress each other than to co-operate for their
common good. So strong is this propensity of mankind to fall into
mutual animosities, that where no substantial occasion presents itself,
the most frivolous and fanciful distinctions have been sufficient to
kindle their unfriendly passions and excite their most violent
conflicts. But the most common and durable source of factions has been
the various and unequal distribution of property. Those who hold and
those who are without property have ever formed distinct interests in
society. Those who are creditors, and those who are debtors, fall under
a like discrimination. A landed interest, a manufacturing interest, a
mercantile interest, a moneyed interest, with many lesser interests,
grow up of necessity in civilized nations, and divide them into
different classes, actuated by different sentiments and views. The
regulation of these various and interfering interests forms the
principal task of modern legislation, and involves the spirit of party
and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest
would certainly bias his judgment, and, not improbably, corrupt his
integrity. With equal, nay with greater reason, a body of men are unfit
to be both judges and parties at the same time; yet what are many of
the most important acts of legislation, but so many judicial
determinations, not indeed concerning the rights of single persons, but
concerning the rights of large bodies of citizens? And what are the
different classes of legislators but advocates and parties to the
causes which they determine? Is a law proposed concerning private
debts? It is a question to which the creditors are parties on one side
and the debtors on the other. Justice ought to hold the balance between
them. Yet the parties are, and must be, themselves the judges; and the
most numerous party, or, in other words, the most powerful faction must
be expected to prevail. Shall domestic manufactures be encouraged, and
in what degree, by restrictions on foreign manufactures? are questions
which would be differently decided by the landed and the manufacturing
classes, and probably by neither with a sole regard to justice and the
public good. The apportionment of taxes on the various descriptions of
property is an act which seems to require the most exact impartiality;
yet there is, perhaps, no legislative act in which greater opportunity
and temptation are given to a predominant party to trample on the rules
of justice. Every shilling with which they overburden the inferior
number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust
these clashing interests, and render them all subservient to the public
good. Enlightened statesmen will not always be at the helm. Nor, in
many cases, can such an adjustment be made at all without taking into
view indirect and remote considerations, which will rarely prevail over
the immediate interest which one party may find in disregarding the
rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of faction
cannot be removed, and that relief is only to be sought in the means of
controlling its EFFECTS.

If a faction consists of less than a majority, relief is supplied by
the republican principle, which enables the majority to defeat its
sinister views by regular vote. It may clog the administration, it may
convulse the society; but it will be unable to execute and mask its
violence under the forms of the Constitution. When a majority is
included in a faction, the form of popular government, on the other
hand, enables it to sacrifice to its ruling passion or interest both
the public good and the rights of other citizens. To secure the public
good and private rights against the danger of such a faction, and at
the same time to preserve the spirit and the form of popular
government, is then the great object to which our inquiries are
directed. Let me add that it is the great desideratum by which this
form of government can be rescued from the opprobrium under which it
has so long labored, and be recommended to the esteem and adoption of
mankind.

By what means is this object attainable? Evidently by one of two only.
Either the existence of the same passion or interest in a majority at
the same time must be prevented, or the majority, having such
coexistent passion or interest, must be rendered, by their number and
local situation, unable to concert and carry into effect schemes of
oppression. If the impulse and the opportunity be suffered to coincide,
we well know that neither moral nor religious motives can be relied on
as an adequate control. They are not found to be such on the injustice
and violence of individuals, and lose their efficacy in proportion to
the number combined together, that is, in proportion as their efficacy
becomes needful.

From this view of the subject it may be concluded that a pure
democracy, by which I mean a society consisting of a small number of
citizens, who assemble and administer the government in person, can
admit of no cure for the mischiefs of faction. A common passion or
interest will, in almost every case, be felt by a majority of the
whole; a communication and concert result from the form of government
itself; and there is nothing to check the inducements to sacrifice the
weaker party or an obnoxious individual. Hence it is that such
democracies have ever been spectacles of turbulence and contention;
have ever been found incompatible with personal security or the rights
of property; and have in general been as short in their lives as they
have been violent in their deaths. Theoretic politicians, who have
patronized this species of government, have erroneously supposed that
by reducing mankind to a perfect equality in their political rights,
they would, at the same time, be perfectly equalized and assimilated in
their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of
representation takes place, opens a different prospect, and promises
the cure for which we are seeking. Let us examine the points in which
it varies from pure democracy, and we shall comprehend both the nature
of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic
are: first, the delegation of the government, in the latter, to a small
number of citizens elected by the rest; secondly, the greater number of
citizens, and greater sphere of country, over which the latter may be
extended.

The effect of the first difference is, on the one hand, to refine and
enlarge the public views, by passing them through the medium of a
chosen body of citizens, whose wisdom may best discern the true
interest of their country, and whose patriotism and love of justice
will be least likely to sacrifice it to temporary or partial
considerations. Under such a regulation, it may well happen that the
public voice, pronounced by the representatives of the people, will be
more consonant to the public good than if pronounced by the people
themselves, convened for the purpose. On the other hand, the effect may
be inverted. Men of factious tempers, of local prejudices, or of
sinister designs, may, by intrigue, by corruption, or by other means,
first obtain the suffrages, and then betray the interests, of the
people. The question resulting is, whether small or extensive republics
are more favorable to the election of proper guardians of the public
weal; and it is clearly decided in favor of the latter by two obvious
considerations:

In the first place, it is to be remarked that, however small the
republic may be, the representatives must be raised to a certain
number, in order to guard against the cabals of a few; and that,
however large it may be, they must be limited to a certain number, in
order to guard against the confusion of a multitude. Hence, the number
of representatives in the two cases not being in proportion to that of
the two constituents, and being proportionally greater in the small
republic, it follows that, if the proportion of fit characters be not
less in the large than in the small republic, the former will present a
greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater
number of citizens in the large than in the small republic, it will be
more difficult for unworthy candidates to practice with success the
vicious arts by which elections are too often carried; and the
suffrages of the people being more free, will be more likely to centre
in men who possess the most attractive merit and the most diffusive and
established characters.

It must be confessed that in this, as in most other cases, there is a
mean, on both sides of which inconveniences will be found to lie. By
enlarging too much the number of electors, you render the
representatives too little acquainted with all their local
circumstances and lesser interests; as by reducing it too much, you
render him unduly attached to these, and too little fit to comprehend
and pursue great and national objects. The federal Constitution forms a
happy combination in this respect; the great and aggregate interests
being referred to the national, the local and particular to the State
legislatures.

The other point of difference is, the greater number of citizens and
extent of territory which may be brought within the compass of
republican than of democratic government; and it is this circumstance
principally which renders factious combinations less to be dreaded in
the former than in the latter. The smaller the society, the fewer
probably will be the distinct parties and interests composing it; the
fewer the distinct parties and interests, the more frequently will a
majority be found of the same party; and the smaller the number of
individuals composing a majority, and the smaller the compass within
which they are placed, the more easily will they concert and execute
their plans of oppression. Extend the sphere, and you take in a greater
variety of parties and interests; you make it less probable that a
majority of the whole will have a common motive to invade the rights of
other citizens; or if such a common motive exists, it will be more
difficult for all who feel it to discover their own strength, and to
act in unison with each other. Besides other impediments, it may be
remarked that, where there is a consciousness of unjust or dishonorable
purposes, communication is always checked by distrust in proportion to
the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has
over a democracy, in controlling the effects of faction, is enjoyed by
a large over a small republic,—is enjoyed by the Union over the States
composing it. Does the advantage consist in the substitution of
representatives whose enlightened views and virtuous sentiments render
them superior to local prejudices and schemes of injustice? It will not
be denied that the representation of the Union will be most likely to
possess these requisite endowments. Does it consist in the greater
security afforded by a greater variety of parties, against the event of
any one party being able to outnumber and oppress the rest? In an equal
degree does the increased variety of parties comprised within the
Union, increase this security. Does it, in fine, consist in the greater
obstacles opposed to the concert and accomplishment of the secret
wishes of an unjust and interested majority? Here, again, the extent of
the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their
particular States, but will be unable to spread a general conflagration
through the other States. A religious sect may degenerate into a
political faction in a part of the Confederacy; but the variety of
sects dispersed over the entire face of it must secure the national
councils against any danger from that source. A rage for paper money,
for an abolition of debts, for an equal division of property, or for
any other improper or wicked project, will be less apt to pervade the
whole body of the Union than a particular member of it; in the same
proportion as such a malady is more likely to taint a particular county
or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a
republican remedy for the diseases most incident to republican
government. And according to the degree of pleasure and pride we feel
in being republicans, ought to be our zeal in cherishing the spirit and
supporting the character of Federalists.

PUBLIUS.




THE FEDERALIST.
No. XI.

The Utility of the Union in Respect to Commercial Relations and a Navy

For the Independent Journal.

HAMILTON


To the People of the State of New York:

The importance of the Union, in a commercial light, is one of those
points about which there is least room to entertain a difference of
opinion, and which has, in fact, commanded the most general assent of
men who have any acquaintance with the subject. This applies as well to
our intercourse with foreign countries as with each other.

There are appearances to authorize a supposition that the adventurous
spirit, which distinguishes the commercial character of America, has
already excited uneasy sensations in several of the maritime powers of
Europe. They seem to be apprehensive of our too great interference in
that carrying trade, which is the support of their navigation and the
foundation of their naval strength. Those of them which have colonies
in America look forward to what this country is capable of becoming,
with painful solicitude. They foresee the dangers that may threaten
their American dominions from the neighborhood of States, which have
all the dispositions, and would possess all the means, requisite to the
creation of a powerful marine. Impressions of this kind will naturally
indicate the policy of fostering divisions among us, and of depriving
us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This
would answer the threefold purpose of preventing our interference in
their navigation, of monopolizing the profits of our trade, and of
clipping the wings by which we might soar to a dangerous greatness. Did
not prudence forbid the detail, it would not be difficult to trace, by
facts, the workings of this policy to the cabinets of ministers.

If we continue united, we may counteract a policy so unfriendly to our
prosperity in a variety of ways. By prohibitory regulations, extending,
at the same time, throughout the States, we may oblige foreign
countries to bid against each other, for the privileges of our markets.
This assertion will not appear chimerical to those who are able to
appreciate the importance of the markets of three millions of
people—increasing in rapid progression, for the most part exclusively
addicted to agriculture, and likely from local circumstances to remain
so—to any manufacturing nation; and the immense difference there would
be to the trade and navigation of such a nation, between a direct
communication in its own ships, and an indirect conveyance of its
products and returns, to and from America, in the ships of another
country. Suppose, for instance, we had a government in America, capable
of excluding Great Britain (with whom we have at present no treaty of
commerce) from all our ports; what would be the probable operation of
this step upon her politics? Would it not enable us to negotiate, with
the fairest prospect of success, for commercial privileges of the most
valuable and extensive kind, in the dominions of that kingdom? When
these questions have been asked, upon other occasions, they have
received a plausible, but not a solid or satisfactory answer. It has
been said that prohibitions on our part would produce no change in the
system of Britain, because she could prosecute her trade with us
through the medium of the Dutch, who would be her immediate customers
and paymasters for those articles which were wanted for the supply of
our markets. But would not her navigation be materially injured by the
loss of the important advantage of being her own carrier in that trade?
Would not the principal part of its profits be intercepted by the
Dutch, as a compensation for their agency and risk? Would not the mere
circumstance of freight occasion a considerable deduction? Would not so
circuitous an intercourse facilitate the competitions of other nations,
by enhancing the price of British commodities in our markets, and by
transferring to other hands the management of this interesting branch
of the British commerce?

A mature consideration of the objects suggested by these questions will
justify a belief that the real disadvantages to Britain from such a
state of things, conspiring with the pre-possessions of a great part of
the nation in favor of the American trade, and with the importunities
of the West India islands, would produce a relaxation in her present
system, and would let us into the enjoyment of privileges in the
markets of those islands elsewhere, from which our trade would derive
the most substantial benefits. Such a point gained from the British
government, and which could not be expected without an equivalent in
exemptions and immunities in our markets, would be likely to have a
correspondent effect on the conduct of other nations, who would not be
inclined to see themselves altogether supplanted in our trade.

A further resource for influencing the conduct of European nations
toward us, in this respect, would arise from the establishment of a
federal navy. There can be no doubt that the continuance of the Union
under an efficient government would put it in our power, at a period
not very distant, to create a navy which, if it could not vie with
those of the great maritime powers, would at least be of respectable
weight if thrown into the scale of either of two contending parties.
This would be more peculiarly the case in relation to operations in the
West Indies. A few ships of the line, sent opportunely to the
reinforcement of either side, would often be sufficient to decide the
fate of a campaign, on the event of which interests of the greatest
magnitude were suspended. Our position is, in this respect, a most
commanding one. And if to this consideration we add that of the
usefulness of supplies from this country, in the prosecution of
military operations in the West Indies, it will readily be perceived
that a situation so favorable would enable us to bargain with great
advantage for commercial privileges. A price would be set not only upon
our friendship, but upon our neutrality. By a steady adherence to the
Union we may hope, erelong, to become the arbiter of Europe in America,
and to be able to incline the balance of European competitions in this
part of the world as our interest may dictate.

But in the reverse of this eligible situation, we shall discover that
the rivalships of the parts would make them checks upon each other, and
would frustrate all the tempting advantages which nature has kindly
placed within our reach. In a state so insignificant our commerce would
be a prey to the wanton intermeddlings of all nations at war with each
other; who, having nothing to fear from us, would with little scruple
or remorse, supply their wants by depredations on our property as often
as it fell in their way. The rights of neutrality will only be
respected when they are defended by an adequate power. A nation,
despicable by its weakness, forfeits even the privilege of being
neutral.

Under a vigorous national government, the natural strength and
resources of the country, directed to a common interest, would baffle
all the combinations of European jealousy to restrain our growth. This
situation would even take away the motive to such combinations, by
inducing an impracticability of success. An active commerce, an
extensive navigation, and a flourishing marine would then be the
offspring of moral and physical necessity. We might defy the little
arts of the little politicians to control or vary the irresistible and
unchangeable course of nature.

But in a state of disunion, these combinations might exist and might
operate with success. It would be in the power of the maritime nations,
availing themselves of our universal impotence, to prescribe the
conditions of our political existence; and as they have a common
interest in being our carriers, and still more in preventing our
becoming theirs, they would in all probability combine to embarrass our
navigation in such a manner as would in effect destroy it, and confine
us to a PASSIVE COMMERCE. We should then be compelled to content
ourselves with the first price of our commodities, and to see the
profits of our trade snatched from us to enrich our enemies and
persecutors. That unequaled spirit of enterprise, which signalizes the
genius of the American merchants and navigators, and which is in itself
an inexhaustible mine of national wealth, would be stifled and lost,
and poverty and disgrace would overspread a country which, with wisdom,
might make herself the admiration and envy of the world.

There are rights of great moment to the trade of America which are
rights of the Union—I allude to the fisheries, to the navigation of the
Western lakes, and to that of the Mississippi. The dissolution of the
Confederacy would give room for delicate questions concerning the
future existence of these rights; which the interest of more powerful
partners would hardly fail to solve to our disadvantage. The
disposition of Spain with regard to the Mississippi needs no comment.
France and Britain are concerned with us in the fisheries, and view
them as of the utmost moment to their navigation. They, of course,
would hardly remain long indifferent to that decided mastery, of which
experience has shown us to be possessed in this valuable branch of
traffic, and by which we are able to undersell those nations in their
own markets. What more natural than that they should be disposed to
exclude from the lists such dangerous competitors?

This branch of trade ought not to be considered as a partial benefit.
All the navigating States may, in different degrees, advantageously
participate in it, and under circumstances of a greater extension of
mercantile capital, would not be unlikely to do it. As a nursery of
seamen, it now is, or when time shall have more nearly assimilated the
principles of navigation in the several States, will become, a
universal resource. To the establishment of a navy, it must be
indispensable.

To this great national object, a NAVY, union will contribute in various
ways. Every institution will grow and flourish in proportion to the
quantity and extent of the means concentred towards its formation and
support. A navy of the United States, as it would embrace the resources
of all, is an object far less remote than a navy of any single State or
partial confederacy, which would only embrace the resources of a single
part. It happens, indeed, that different portions of confederated
America possess each some peculiar advantage for this essential
establishment. The more southern States furnish in greater abundance
certain kinds of naval stores—tar, pitch, and turpentine. Their wood
for the construction of ships is also of a more solid and lasting
texture. The difference in the duration of the ships of which the navy
might be composed, if chiefly constructed of Southern wood, would be of
signal importance, either in the view of naval strength or of national
economy. Some of the Southern and of the Middle States yield a greater
plenty of iron, and of better quality. Seamen must chiefly be drawn
from the Northern hive. The necessity of naval protection to external
or maritime commerce does not require a particular elucidation, no more
than the conduciveness of that species of commerce to the prosperity of
a navy.

An unrestrained intercourse between the States themselves will advance
the trade of each by an interchange of their respective productions,
not only for the supply of reciprocal wants at home, but for
exportation to foreign markets. The veins of commerce in every part
will be replenished, and will acquire additional motion and vigor from
a free circulation of the commodities of every part. Commercial
enterprise will have much greater scope, from the diversity in the
productions of different States. When the staple of one fails from a
bad harvest or unproductive crop, it can call to its aid the staple of
another. The variety, not less than the value, of products for
exportation contributes to the activity of foreign commerce. It can be
conducted upon much better terms with a large number of materials of a
given value than with a small number of materials of the same value;
arising from the competitions of trade and from the fluctations of
markets. Particular articles may be in great demand at certain periods,
and unsalable at others; but if there be a variety of articles, it can
scarcely happen that they should all be at one time in the latter
predicament, and on this account the operations of the merchant would
be less liable to any considerable obstruction or stagnation. The
speculative trader will at once perceive the force of these
observations, and will acknowledge that the aggregate balance of the
commerce of the United States would bid fair to be much more favorable
than that of the thirteen States without union or with partial unions.

It may perhaps be replied to this, that whether the States are united
or disunited, there would still be an intimate intercourse between them
which would answer the same ends; this intercourse would be fettered,
interrupted, and narrowed by a multiplicity of causes, which in the
course of these papers have been amply detailed. A unity of commercial,
as well as political, interests, can only result from a unity of
government.

There are other points of view in which this subject might be placed,
of a striking and animating kind. But they would lead us too far into
the regions of futurity, and would involve topics not proper for a
newspaper discussion. I shall briefly observe, that our situation
invites and our interests prompt us to aim at an ascendant in the
system of American affairs. The world may politically, as well as
geographically, be divided into four parts, each having a distinct set
of interests. Unhappily for the other three, Europe, by her arms and by
her negotiations, by force and by fraud, has, in different degrees,
extended her dominion over them all. Africa, Asia, and America, have
successively felt her domination. The superiority she has long
maintained has tempted her to plume herself as the Mistress of the
World, and to consider the rest of mankind as created for her benefit.
Men admired as profound philosophers have, in direct terms, attributed
to her inhabitants a physical superiority, and have gravely asserted
that all animals, and with them the human species, degenerate in
America—that even dogs cease to bark after having breathed awhile in
our atmosphere.[1] Facts have too long supported these arrogant
pretensions of the Europeans. It belongs to us to vindicate the honor
of the human race, and to teach that assuming brother, moderation.
Union will enable us to do it. Disunion will will add another victim to
his triumphs. Let Americans disdain to be the instruments of European
greatness! Let the thirteen States, bound together in a strict and
indissoluble Union, concur in erecting one great American system,
superior to the control of all transatlantic force or influence, and
able to dictate the terms of the connection between the old and the new
world!

PUBLIUS.

 [1] “Recherches philosophiques sur les Américains.”




THE FEDERALIST.
No. XII.

The Utility of the Union In Respect to Revenue

From the New York Packet.

Tuesday, November 27, 1787.

HAMILTON


To the People of the State of New York:

The effects of Union upon the commercial prosperity of the States have
been sufficiently delineated. Its tendency to promote the interests of
revenue will be the subject of our present inquiry.

The prosperity of commerce is now perceived and acknowledged by all
enlightened statesmen to be the most useful as well as the most
productive source of national wealth, and has accordingly become a
primary object of their political cares. By multiplying the means of
gratification, by promoting the introduction and circulation of the
precious metals, those darling objects of human avarice and enterprise,
it serves to vivify and invigorate the channels of industry, and to
make them flow with greater activity and copiousness. The assiduous
merchant, the laborious husbandman, the active mechanic, and the
industrious manufacturer,—all orders of men, look forward with eager
expectation and growing alacrity to this pleasing reward of their
toils. The often-agitated question between agriculture and commerce
has, from indubitable experience, received a decision which has
silenced the rivalship that once subsisted between them, and has
proved, to the satisfaction of their friends, that their interests are
intimately blended and interwoven. It has been found in various
countries that, in proportion as commerce has flourished, land has
risen in value. And how could it have happened otherwise? Could that
which procures a freer vent for the products of the earth, which
furnishes new incitements to the cultivation of land, which is the most
powerful instrument in increasing the quantity of money in a
state—could that, in fine, which is the faithful handmaid of labor and
industry, in every shape, fail to augment that article, which is the
prolific parent of far the greatest part of the objects upon which they
are exerted? It is astonishing that so simple a truth should ever have
had an adversary; and it is one, among a multitude of proofs, how apt a
spirit of ill-informed jealousy, or of too great abstraction and
refinement, is to lead men astray from the plainest truths of reason
and conviction.

The ability of a country to pay taxes must always be proportioned, in a
great degree, to the quantity of money in circulation, and to the
celerity with which it circulates. Commerce, contributing to both these
objects, must of necessity render the payment of taxes easier, and
facilitate the requisite supplies to the treasury. The hereditary
dominions of the Emperor of Germany contain a great extent of fertile,
cultivated, and populous territory, a large proportion of which is
situated in mild and luxuriant climates. In some parts of this
territory are to be found the best gold and silver mines in Europe. And
yet, from the want of the fostering influence of commerce, that monarch
can boast but slender revenues. He has several times been compelled to
owe obligations to the pecuniary succors of other nations for the
preservation of his essential interests, and is unable, upon the
strength of his own resources, to sustain a long or continued war.

But it is not in this aspect of the subject alone that Union will be
seen to conduce to the purpose of revenue. There are other points of
view, in which its influence will appear more immediate and decisive.
It is evident from the state of the country, from the habits of the
people, from the experience we have had on the point itself, that it is
impracticable to raise any very considerable sums by direct taxation.
Tax laws have in vain been multiplied; new methods to enforce the
collection have in vain been tried; the public expectation has been
uniformly disappointed, and the treasuries of the States have remained
empty. The popular system of administration inherent in the nature of
popular government, coinciding with the real scarcity of money incident
to a languid and mutilated state of trade, has hitherto defeated every
experiment for extensive collections, and has at length taught the
different legislatures the folly of attempting them.

No person acquainted with what happens in other countries will be
surprised at this circumstance. In so opulent a nation as that of
Britain, where direct taxes from superior wealth must be much more
tolerable, and, from the vigor of the government, much more
practicable, than in America, far the greatest part of the national
revenue is derived from taxes of the indirect kind, from imposts, and
from excises. Duties on imported articles form a large branch of this
latter description.

In America, it is evident that we must a long time depend for the means
of revenue chiefly on such duties. In most parts of it, excises must be
confined within a narrow compass. The genius of the people will ill
brook the inquisitive and peremptory spirit of excise laws. The pockets
of the farmers, on the other hand, will reluctantly yield but scanty
supplies, in the unwelcome shape of impositions on their houses and
lands; and personal property is too precarious and invisible a fund to
be laid hold of in any other way than by the inperceptible agency of
taxes on consumption.

If these remarks have any foundation, that state of things which will
best enable us to improve and extend so valuable a resource must be
best adapted to our political welfare. And it cannot admit of a serious
doubt, that this state of things must rest on the basis of a general
Union. As far as this would be conducive to the interests of commerce,
so far it must tend to the extension of the revenue to be drawn from
that source. As far as it would contribute to rendering regulations for
the collection of the duties more simple and efficacious, so far it
must serve to answer the purposes of making the same rate of duties
more productive, and of putting it into the power of the government to
increase the rate without prejudice to trade.

The relative situation of these States; the number of rivers with which
they are intersected, and of bays that wash there shores; the facility
of communication in every direction; the affinity of language and
manners; the familiar habits of intercourse; —all these are
circumstances that would conspire to render an illicit trade between
them a matter of little difficulty, and would insure frequent evasions
of the commercial regulations of each other. The separate States or
confederacies would be necessitated by mutual jealousy to avoid the
temptations to that kind of trade by the lowness of their duties. The
temper of our governments, for a long time to come, would not permit
those rigorous precautions by which the European nations guard the
avenues into their respective countries, as well by land as by water;
and which, even there, are found insufficient obstacles to the
adventurous stratagems of avarice.

In France, there is an army of patrols (as they are called) constantly
employed to secure their fiscal regulations against the inroads of the
dealers in contraband trade. Mr. Neckar computes the number of these
patrols at upwards of twenty thousand. This shows the immense
difficulty in preventing that species of traffic, where there is an
inland communication, and places in a strong light the disadvantages
with which the collection of duties in this country would be
encumbered, if by disunion the States should be placed in a situation,
with respect to each other, resembling that of France with respect to
her neighbors. The arbitrary and vexatious powers with which the
patrols are necessarily armed, would be intolerable in a free country.

If, on the contrary, there be but one government pervading all the
States, there will be, as to the principal part of our commerce, but
ONE SIDE to guard—the ATLANTIC COAST. Vessels arriving directly from
foreign countries, laden with valuable cargoes, would rarely choose to
hazard themselves to the complicated and critical perils which would
attend attempts to unlade prior to their coming into port. They would
have to dread both the dangers of the coast, and of detection, as well
after as before their arrival at the places of their final destination.
An ordinary degree of vigilance would be competent to the prevention of
any material infractions upon the rights of the revenue. A few armed
vessels, judiciously stationed at the entrances of our ports, might at
a small expense be made useful sentinels of the laws. And the
government having the same interest to provide against violations
everywhere, the co-operation of its measures in each State would have a
powerful tendency to render them effectual. Here also we should
preserve by Union, an advantage which nature holds out to us, and which
would be relinquished by separation. The United States lie at a great
distance from Europe, and at a considerable distance from all other
places with which they would have extensive connections of foreign
trade. The passage from them to us, in a few hours, or in a single
night, as between the coasts of France and Britain, and of other
neighboring nations, would be impracticable. This is a prodigious
security against a direct contraband with foreign countries; but a
circuitous contraband to one State, through the medium of another,
would be both easy and safe. The difference between a direct
importation from abroad, and an indirect importation through the
channel of a neighboring State, in small parcels, according to time and
opportunity, with the additional facilities of inland communication,
must be palpable to every man of discernment.

It is therefore evident, that one national government would be able, at
much less expense, to extend the duties on imports, beyond comparison,
further than would be practicable to the States separately, or to any
partial confederacies. Hitherto, I believe, it may safely be asserted,
that these duties have not upon an average exceeded in any State three
per cent. In France they are estimated to be about fifteen per cent.,
and in Britain they exceed this proportion.[1] There seems to be
nothing to hinder their being increased in this country to at least
treble their present amount. The single article of ardent spirits,
under federal regulation, might be made to furnish a considerable
revenue. Upon a ratio to the importation into this State, the whole
quantity imported into the United States may be estimated at four
millions of gallons; which, at a shilling per gallon, would produce two
hundred thousand pounds. That article would well bear this rate of
duty; and if it should tend to diminish the consumption of it, such an
effect would be equally favorable to the agriculture, to the economy,
to the morals, and to the health of the society. There is, perhaps,
nothing so much a subject of national extravagance as these spirits.

What will be the consequence, if we are not able to avail ourselves of
the resource in question in its full extent? A nation cannot long exist
without revenues. Destitute of this essential support, it must resign
its independence, and sink into the degraded condition of a province.
This is an extremity to which no government will of choice accede.
Revenue, therefore, must be had at all events. In this country, if the
principal part be not drawn from commerce, it must fall with oppressive
weight upon land. It has been already intimated that excises, in their
true signification, are too little in unison with the feelings of the
people, to admit of great use being made of that mode of taxation; nor,
indeed, in the States where almost the sole employment is agriculture,
are the objects proper for excise sufficiently numerous to permit very
ample collections in that way. Personal estate (as has been before
remarked), from the difficulty in tracing it, cannot be subjected to
large contributions, by any other means than by taxes on consumption.
In populous cities, it may be enough the subject of conjecture, to
occasion the oppression of individuals, without much aggregate benefit
to the State; but beyond these circles, it must, in a great measure,
escape the eye and the hand of the tax-gatherer. As the necessities of
the State, nevertheless, must be satisfied in some mode or other, the
defect of other resources must throw the principal weight of public
burdens on the possessors of land. And as, on the other hand, the wants
of the government can never obtain an adequate supply, unless all the
sources of revenue are open to its demands, the finances of the
community, under such embarrassments, cannot be put into a situation
consistent with its respectability or its security. Thus we shall not
even have the consolations of a full treasury, to atone for the
oppression of that valuable class of the citizens who are employed in
the cultivation of the soil. But public and private distress will keep
pace with each other in gloomy concert; and unite in deploring the
infatuation of those counsels which led to disunion.

PUBLIUS.

 [1] If my memory be right they amount to twenty per cent.




THE FEDERALIST.
No. XIII.

Advantage of the Union in Respect to Economy in Government

For the Independent Journal.

HAMILTON


To the People of the State of New York:

As connected with the subject of revenue, we may with propriety
consider that of economy. The money saved from one object may be
usefully applied to another, and there will be so much the less to be
drawn from the pockets of the people. If the States are united under
one government, there will be but one national civil list to support;
if they are divided into several confederacies, there will be as many
different national civil lists to be provided for—and each of them, as
to the principal departments, coextensive with that which would be
necessary for a government of the whole. The entire separation of the
States into thirteen unconnected sovereignties is a project too
extravagant and too replete with danger to have many advocates. The
ideas of men who speculate upon the dismemberment of the empire seem
generally turned toward three confederacies—one consisting of the four
Northern, another of the four Middle, and a third of the five Southern
States. There is little probability that there would be a greater
number. According to this distribution, each confederacy would comprise
an extent of territory larger than that of the kingdom of Great
Britain. No well-informed man will suppose that the affairs of such a
confederacy can be properly regulated by a government less
comprehensive in its organs or institutions than that which has been
proposed by the convention. When the dimensions of a State attain to a
certain magnitude, it requires the same energy of government and the
same forms of administration which are requisite in one of much greater
extent. This idea admits not of precise demonstration, because there is
no rule by which we can measure the momentum of civil power necessary
to the government of any given number of individuals; but when we
consider that the island of Britain, nearly commensurate with each of
the supposed confederacies, contains about eight millions of people,
and when we reflect upon the degree of authority required to direct the
passions of so large a society to the public good, we shall see no
reason to doubt that the like portion of power would be sufficient to
perform the same task in a society far more numerous. Civil power,
properly organized and exerted, is capable of diffusing its force to a
very great extent; and can, in a manner, reproduce itself in every part
of a great empire by a judicious arrangement of subordinate
institutions.

The supposition that each confederacy into which the States would be
likely to be divided would require a government not less comprehensive
than the one proposed, will be strengthened by another supposition,
more probable than that which presents us with three confederacies as
the alternative to a general Union. If we attend carefully to
geographical and commercial considerations, in conjunction with the
habits and prejudices of the different States, we shall be led to
conclude that in case of disunion they will most naturally league
themselves under two governments. The four Eastern States, from all the
causes that form the links of national sympathy and connection, may
with certainty be expected to unite. New York, situated as she is,
would never be unwise enough to oppose a feeble and unsupported flank
to the weight of that confederacy. There are other obvious reasons that
would facilitate her accession to it. New Jersey is too small a State
to think of being a frontier, in opposition to this still more powerful
combination; nor do there appear to be any obstacles to her admission
into it. Even Pennsylvania would have strong inducements to join the
Northern league. An active foreign commerce, on the basis of her own
navigation, is her true policy, and coincides with the opinions and
dispositions of her citizens. The more Southern States, from various
circumstances, may not think themselves much interested in the
encouragement of navigation. They may prefer a system which would give
unlimited scope to all nations to be the carriers as well as the
purchasers of their commodities. Pennsylvania may not choose to
confound her interests in a connection so adverse to her policy. As she
must at all events be a frontier, she may deem it most consistent with
her safety to have her exposed side turned towards the weaker power of
the Southern, rather than towards the stronger power of the Northern,
Confederacy. This would give her the fairest chance to avoid being the
Flanders of America. Whatever may be the determination of Pennsylvania,
if the Northern Confederacy includes New Jersey, there is no likelihood
of more than one confederacy to the south of that State.

Nothing can be more evident than that the thirteen States will be able
to support a national government better than one half, or one third, or
any number less than the whole. This reflection must have great weight
in obviating that objection to the proposed plan, which is founded on
the principle of expense; an objection, however, which, when we come to
take a nearer view of it, will appear in every light to stand on
mistaken ground.

If, in addition to the consideration of a plurality of civil lists, we
take into view the number of persons who must necessarily be employed
to guard the inland communication between the different confederacies
against illicit trade, and who in time will infallibly spring up out of
the necessities of revenue; and if we also take into view the military
establishments which it has been shown would unavoidably result from
the jealousies and conflicts of the several nations into which the
States would be divided, we shall clearly discover that a separation
would be not less injurious to the economy, than to the tranquillity,
commerce, revenue, and liberty of every part.

PUBLIUS.




THE FEDERALIST.
No. XIV.

Objections to the Proposed Constitution From Extent of Territory
Answered

From the New York Packet.

Friday, November 30, 1787.

MADISON


To the People of the State of New York:

We have seen the necessity of the Union, as our bulwark against foreign
danger, as the conservator of peace among ourselves, as the guardian of
our commerce and other common interests, as the only substitute for
those military establishments which have subverted the liberties of the
Old World, and as the proper antidote for the diseases of faction,
which have proved fatal to other popular governments, and of which
alarming symptoms have been betrayed by our own. All that remains,
within this branch of our inquiries, is to take notice of an objection
that may be drawn from the great extent of country which the Union
embraces. A few observations on this subject will be the more proper,
as it is perceived that the adversaries of the new Constitution are
availing themselves of the prevailing prejudice with regard to the
practicable sphere of republican administration, in order to supply, by
imaginary difficulties, the want of those solid objections which they
endeavor in vain to find.

The error which limits republican government to a narrow district has
been unfolded and refuted in preceding papers. I remark here only that
it seems to owe its rise and prevalence chiefly to the confounding of a
republic with a democracy, applying to the former reasonings drawn from
the nature of the latter. The true distinction between these forms was
also adverted to on a former occasion. It is, that in a democracy, the
people meet and exercise the government in person; in a republic, they
assemble and administer it by their representatives and agents. A
democracy, consequently, will be confined to a small spot. A republic
may be extended over a large region.

To this accidental source of the error may be added the artifice of
some celebrated authors, whose writings have had a great share in
forming the modern standard of political opinions. Being subjects
either of an absolute or limited monarchy, they have endeavored to
heighten the advantages, or palliate the evils of those forms, by
placing in comparison the vices and defects of the republican, and by
citing as specimens of the latter the turbulent democracies of ancient
Greece and modern Italy. Under the confusion of names, it has been an
easy task to transfer to a republic observations applicable to a
democracy only; and among others, the observation that it can never be
established but among a small number of people, living within a small
compass of territory.

Such a fallacy may have been the less perceived, as most of the popular
governments of antiquity were of the democratic species; and even in
modern Europe, to which we owe the great principle of representation,
no example is seen of a government wholly popular, and founded, at the
same time, wholly on that principle. If Europe has the merit of
discovering this great mechanical power in government, by the simple
agency of which the will of the largest political body may be
concentred, and its force directed to any object which the public good
requires, America can claim the merit of making the discovery the basis
of unmixed and extensive republics. It is only to be lamented that any
of her citizens should wish to deprive her of the additional merit of
displaying its full efficacy in the establishment of the comprehensive
system now under her consideration.

As the natural limit of a democracy is that distance from the central
point which will just permit the most remote citizens to assemble as
often as their public functions demand, and will include no greater
number than can join in those functions; so the natural limit of a
republic is that distance from the centre which will barely allow the
representatives to meet as often as may be necessary for the
administration of public affairs. Can it be said that the limits of the
United States exceed this distance? It will not be said by those who
recollect that the Atlantic coast is the longest side of the Union,
that during the term of thirteen years, the representatives of the
States have been almost continually assembled, and that the members
from the most distant States are not chargeable with greater
intermissions of attendance than those from the States in the
neighborhood of Congress.

That we may form a juster estimate with regard to this interesting
subject, let us resort to the actual dimensions of the Union. The
limits, as fixed by the treaty of peace, are: on the east the Atlantic,
on the south the latitude of thirty-one degrees, on the west the
Mississippi, and on the north an irregular line running in some
instances beyond the forty-fifth degree, in others falling as low as
the forty-second. The southern shore of Lake Erie lies below that
latitude. Computing the distance between the thirty-first and
forty-fifth degrees, it amounts to nine hundred and seventy-three
common miles; computing it from thirty-one to forty-two degrees, to
seven hundred and sixty-four miles and a half. Taking the mean for the
distance, the amount will be eight hundred and sixty-eight miles and
three-fourths. The mean distance from the Atlantic to the Mississippi
does not probably exceed seven hundred and fifty miles. On a comparison
of this extent with that of several countries in Europe, the
practicability of rendering our system commensurate to it appears to be
demonstrable. It is not a great deal larger than Germany, where a diet
representing the whole empire is continually assembled; or than Poland
before the late dismemberment, where another national diet was the
depositary of the supreme power. Passing by France and Spain, we find
that in Great Britain, inferior as it may be in size, the
representatives of the northern extremity of the island have as far to
travel to the national council as will be required of those of the most
remote parts of the Union.

Favorable as this view of the subject may be, some observations remain
which will place it in a light still more satisfactory.

In the first place it is to be remembered that the general government
is not to be charged with the whole power of making and administering
laws. Its jurisdiction is limited to certain enumerated objects, which
concern all the members of the republic, but which are not to be
attained by the separate provisions of any. The subordinate
governments, which can extend their care to all those other subjects
which can be separately provided for, will retain their due authority
and activity. Were it proposed by the plan of the convention to abolish
the governments of the particular States, its adversaries would have
some ground for their objection; though it would not be difficult to
show that if they were abolished the general government would be
compelled, by the principle of self-preservation, to reinstate them in
their proper jurisdiction.

A second observation to be made is that the immediate object of the
federal Constitution is to secure the union of the thirteen primitive
States, which we know to be practicable; and to add to them such other
States as may arise in their own bosoms, or in their neighborhoods,
which we cannot doubt to be equally practicable. The arrangements that
may be necessary for those angles and fractions of our territory which
lie on our northwestern frontier, must be left to those whom further
discoveries and experience will render more equal to the task.

Let it be remarked, in the third place, that the intercourse throughout
the Union will be facilitated by new improvements. Roads will
everywhere be shortened, and kept in better order; accommodations for
travelers will be multiplied and meliorated; an interior navigation on
our eastern side will be opened throughout, or nearly throughout, the
whole extent of the thirteen States. The communication between the
Western and Atlantic districts, and between different parts of each,
will be rendered more and more easy by those numerous canals with which
the beneficence of nature has intersected our country, and which art
finds it so little difficult to connect and complete.

A fourth and still more important consideration is, that as almost
every State will, on one side or other, be a frontier, and will thus
find, in regard to its safety, an inducement to make some sacrifices
for the sake of the general protection; so the States which lie at the
greatest distance from the heart of the Union, and which, of course,
may partake least of the ordinary circulation of its benefits, will be
at the same time immediately contiguous to foreign nations, and will
consequently stand, on particular occasions, in greatest need of its
strength and resources. It may be inconvenient for Georgia, or the
States forming our western or northeastern borders, to send their
representatives to the seat of government; but they would find it more
so to struggle alone against an invading enemy, or even to support
alone the whole expense of those precautions which may be dictated by
the neighborhood of continual danger. If they should derive less
benefit, therefore, from the Union in some respects than the less
distant States, they will derive greater benefit from it in other
respects, and thus the proper equilibrium will be maintained
throughout.

I submit to you, my fellow-citizens, these considerations, in full
confidence that the good sense which has so often marked your decisions
will allow them their due weight and effect; and that you will never
suffer difficulties, however formidable in appearance, or however
fashionable the error on which they may be founded, to drive you into
the gloomy and perilous scene into which the advocates for disunion
would conduct you. Hearken not to the unnatural voice which tells you
that the people of America, knit together as they are by so many cords
of affection, can no longer live together as members of the same
family; can no longer continue the mutual guardians of their mutual
happiness; can no longer be fellowcitizens of one great, respectable,
and flourishing empire. Hearken not to the voice which petulantly tells
you that the form of government recommended for your adoption is a
novelty in the political world; that it has never yet had a place in
the theories of the wildest projectors; that it rashly attempts what it
is impossible to accomplish. No, my countrymen, shut your ears against
this unhallowed language. Shut your hearts against the poison which it
conveys; the kindred blood which flows in the veins of American
citizens, the mingled blood which they have shed in defense of their
sacred rights, consecrate their Union, and excite horror at the idea of
their becoming aliens, rivals, enemies. And if novelties are to be
shunned, believe me, the most alarming of all novelties, the most wild
of all projects, the most rash of all attempts, is that of rendering us
in pieces, in order to preserve our liberties and promote our
happiness. But why is the experiment of an extended republic to be
rejected, merely because it may comprise what is new? Is it not the
glory of the people of America, that, whilst they have paid a decent
regard to the opinions of former times and other nations, they have not
suffered a blind veneration for antiquity, for custom, or for names, to
overrule the suggestions of their own good sense, the knowledge of
their own situation, and the lessons of their own experience? To this
manly spirit, posterity will be indebted for the possession, and the
world for the example, of the numerous innovations displayed on the
American theatre, in favor of private rights and public happiness. Had
no important step been taken by the leaders of the Revolution for which
a precedent could not be discovered, no government established of which
an exact model did not present itself, the people of the United States
might, at this moment have been numbered among the melancholy victims
of misguided councils, must at best have been laboring under the weight
of some of those forms which have crushed the liberties of the rest of
mankind. Happily for America, happily, we trust, for the whole human
race, they pursued a new and more noble course. They accomplished a
revolution which has no parallel in the annals of human society. They
reared the fabrics of governments which have no model on the face of
the globe. They formed the design of a great Confederacy, which it is
incumbent on their successors to improve and perpetuate. If their works
betray imperfections, we wonder at the fewness of them. If they erred
most in the structure of the Union, this was the work most difficult to
be executed; this is the work which has been new modelled by the act of
your convention, and it is that act on which you are now to deliberate
and to decide.

PUBLIUS.




THE FEDERALIST.
No. XV.

The Insufficiency of the Present Confederation to Preserve the Union

For the Independent Journal.

HAMILTON


To the People of the State of New York.

In the course of the preceding papers, I have endeavored, my
fellow-citizens, to place before you, in a clear and convincing light,
the importance of Union to your political safety and happiness. I have
unfolded to you a complication of dangers to which you would be
exposed, should you permit that sacred knot which binds the people of
America together be severed or dissolved by ambition or by avarice, by
jealousy or by misrepresentation. In the sequel of the inquiry through
which I propose to accompany you, the truths intended to be inculcated
will receive further confirmation from facts and arguments hitherto
unnoticed. If the road over which you will still have to pass should in
some places appear to you tedious or irksome, you will recollect that
you are in quest of information on a subject the most momentous which
can engage the attention of a free people, that the field through which
you have to travel is in itself spacious, and that the difficulties of
the journey have been unnecessarily increased by the mazes with which
sophistry has beset the way. It will be my aim to remove the obstacles
from your progress in as compendious a manner as it can be done,
without sacrificing utility to despatch.

In pursuance of the plan which I have laid down for the discussion of
the subject, the point next in order to be examined is the
“insufficiency of the present Confederation to the preservation of the
Union.” It may perhaps be asked what need there is of reasoning or
proof to illustrate a position which is not either controverted or
doubted, to which the understandings and feelings of all classes of men
assent, and which in substance is admitted by the opponents as well as
by the friends of the new Constitution. It must in truth be
acknowledged that, however these may differ in other respects, they in
general appear to harmonize in this sentiment, at least, that there are
material imperfections in our national system, and that something is
necessary to be done to rescue us from impending anarchy. The facts
that support this opinion are no longer objects of speculation. They
have forced themselves upon the sensibility of the people at large, and
have at length extorted from those, whose mistaken policy has had the
principal share in precipitating the extremity at which we are arrived,
a reluctant confession of the reality of those defects in the scheme of
our federal government, which have been long pointed out and regretted
by the intelligent friends of the Union.

We may indeed with propriety be said to have reached almost the last
stage of national humiliation. There is scarcely anything that can
wound the pride or degrade the character of an independent nation which
we do not experience. Are there engagements to the performance of which
we are held by every tie respectable among men? These are the subjects
of constant and unblushing violation. Do we owe debts to foreigners and
to our own citizens contracted in a time of imminent peril for the
preservation of our political existence? These remain without any
proper or satisfactory provision for their discharge. Have we valuable
territories and important posts in the possession of a foreign power
which, by express stipulations, ought long since to have been
surrendered? These are still retained, to the prejudice of our
interests, not less than of our rights. Are we in a condition to resent
or to repel the aggression? We have neither troops, nor treasury, nor
government.[1] Are we even in a condition to remonstrate with dignity?
The just imputations on our own faith, in respect to the same treaty,
ought first to be removed. Are we entitled by nature and compact to a
free participation in the navigation of the Mississippi? Spain excludes
us from it. Is public credit an indispensable resource in time of
public danger? We seem to have abandoned its cause as desperate and
irretrievable. Is commerce of importance to national wealth? Ours is at
the lowest point of declension. Is respectability in the eyes of
foreign powers a safeguard against foreign encroachments? The
imbecility of our government even forbids them to treat with us. Our
ambassadors abroad are the mere pageants of mimic sovereignty. Is a
violent and unnatural decrease in the value of land a symptom of
national distress? The price of improved land in most parts of the
country is much lower than can be accounted for by the quantity of
waste land at market, and can only be fully explained by that want of
private and public confidence, which are so alarmingly prevalent among
all ranks, and which have a direct tendency to depreciate property of
every kind. Is private credit the friend and patron of industry? That
most useful kind which relates to borrowing and lending is reduced
within the narrowest limits, and this still more from an opinion of
insecurity than from the scarcity of money. To shorten an enumeration
of particulars which can afford neither pleasure nor instruction, it
may in general be demanded, what indication is there of national
disorder, poverty, and insignificance that could befall a community so
peculiarly blessed with natural advantages as we are, which does not
form a part of the dark catalogue of our public misfortunes?

This is the melancholy situation to which we have been brought by those
very maxims and councils which would now deter us from adopting the
proposed Constitution; and which, not content with having conducted us
to the brink of a precipice, seem resolved to plunge us into the abyss
that awaits us below. Here, my countrymen, impelled by every motive
that ought to influence an enlightened people, let us make a firm stand
for our safety, our tranquillity, our dignity, our reputation. Let us
at last break the fatal charm which has too long seduced us from the
paths of felicity and prosperity.

It is true, as has been before observed that facts, too stubborn to be
resisted, have produced a species of general assent to the abstract
proposition that there exist material defects in our national system;
but the usefulness of the concession, on the part of the old
adversaries of federal measures, is destroyed by a strenuous opposition
to a remedy, upon the only principles that can give it a chance of
success. While they admit that the government of the United States is
destitute of energy, they contend against conferring upon it those
powers which are requisite to supply that energy. They seem still to
aim at things repugnant and irreconcilable; at an augmentation of
federal authority, without a diminution of State authority; at
sovereignty in the Union, and complete independence in the members.
They still, in fine, seem to cherish with blind devotion the political
monster of an imperium in imperio. This renders a full display of the
principal defects of the Confederation necessary, in order to show that
the evils we experience do not proceed from minute or partial
imperfections, but from fundamental errors in the structure of the
building, which cannot be amended otherwise than by an alteration in
the first principles and main pillars of the fabric.

The great and radical vice in the construction of the existing
Confederation is in the principle of LEGISLATION for STATES or
GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as
contradistinguished from the INDIVIDUALS of which they consist. Though
this principle does not run through all the powers delegated to the
Union, yet it pervades and governs those on which the efficacy of the
rest depends. Except as to the rule of appointment, the United States
has an indefinite discretion to make requisitions for men and money;
but they have no authority to raise either, by regulations extending to
the individual citizens of America. The consequence of this is, that
though in theory their resolutions concerning those objects are laws,
constitutionally binding on the members of the Union, yet in practice
they are mere recommendations which the States observe or disregard at
their option.

It is a singular instance of the capriciousness of the human mind, that
after all the admonitions we have had from experience on this head,
there should still be found men who object to the new Constitution, for
deviating from a principle which has been found the bane of the old,
and which is in itself evidently incompatible with the idea of
GOVERNMENT; a principle, in short, which, if it is to be executed at
all, must substitute the violent and sanguinary agency of the sword to
the mild influence of the magistracy.

There is nothing absurd or impracticable in the idea of a league or
alliance between independent nations for certain defined purposes
precisely stated in a treaty regulating all the details of time, place,
circumstance, and quantity; leaving nothing to future discretion; and
depending for its execution on the good faith of the parties. Compacts
of this kind exist among all civilized nations, subject to the usual
vicissitudes of peace and war, of observance and non-observance, as the
interests or passions of the contracting powers dictate. In the early
part of the present century there was an epidemical rage in Europe for
this species of compacts, from which the politicians of the times
fondly hoped for benefits which were never realized. With a view to
establishing the equilibrium of power and the peace of that part of the
world, all the resources of negotiation were exhausted, and triple and
quadruple alliances were formed; but they were scarcely formed before
they were broken, giving an instructive but afflicting lesson to
mankind, how little dependence is to be placed on treaties which have
no other sanction than the obligations of good faith, and which oppose
general considerations of peace and justice to the impulse of any
immediate interest or passion.

If the particular States in this country are disposed to stand in a
similar relation to each other, and to drop the project of a general
DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious,
and would entail upon us all the mischiefs which have been enumerated
under the first head; but it would have the merit of being, at least,
consistent and practicable Abandoning all views towards a confederate
government, this would bring us to a simple alliance offensive and
defensive; and would place us in a situation to be alternate friends
and enemies of each other, as our mutual jealousies and rivalships,
nourished by the intrigues of foreign nations, should prescribe to us.

But if we are unwilling to be placed in this perilous situation; if we
still will adhere to the design of a national government, or, which is
the same thing, of a superintending power, under the direction of a
common council, we must resolve to incorporate into our plan those
ingredients which may be considered as forming the characteristic
difference between a league and a government; we must extend the
authority of the Union to the persons of the citizens, —the only proper
objects of government.

Government implies the power of making laws. It is essential to the
idea of a law, that it be attended with a sanction; or, in other words,
a penalty or punishment for disobedience. If there be no penalty
annexed to disobedience, the resolutions or commands which pretend to
be laws will, in fact, amount to nothing more than advice or
recommendation. This penalty, whatever it may be, can only be inflicted
in two ways: by the agency of the courts and ministers of justice, or
by military force; by the COERCION of the magistracy, or by the
COERCION of arms. The first kind can evidently apply only to men; the
last kind must of necessity, be employed against bodies politic, or
communities, or States. It is evident that there is no process of a
court by which the observance of the laws can, in the last resort, be
enforced. Sentences may be denounced against them for violations of
their duty; but these sentences can only be carried into execution by
the sword. In an association where the general authority is confined to
the collective bodies of the communities, that compose it, every breach
of the laws must involve a state of war; and military execution must
become the only instrument of civil obedience. Such a state of things
can certainly not deserve the name of government, nor would any prudent
man choose to commit his happiness to it.

There was a time when we were told that breaches, by the States, of the
regulations of the federal authority were not to be expected; that a
sense of common interest would preside over the conduct of the
respective members, and would beget a full compliance with all the
constitutional requisitions of the Union. This language, at the present
day, would appear as wild as a great part of what we now hear from the
same quarter will be thought, when we shall have received further
lessons from that best oracle of wisdom, experience. It at all times
betrayed an ignorance of the true springs by which human conduct is
actuated, and belied the original inducements to the establishment of
civil power. Why has government been instituted at all? Because the
passions of men will not conform to the dictates of reason and justice,
without constraint. Has it been found that bodies of men act with more
rectitude or greater disinterestedness than individuals? The contrary
of this has been inferred by all accurate observers of the conduct of
mankind; and the inference is founded upon obvious reasons. Regard to
reputation has a less active influence, when the infamy of a bad action
is to be divided among a number than when it is to fall singly upon
one. A spirit of faction, which is apt to mingle its poison in the
deliberations of all bodies of men, will often hurry the persons of
whom they are composed into improprieties and excesses, for which they
would blush in a private capacity.

In addition to all this, there is, in the nature of sovereign power, an
impatience of control, that disposes those who are invested with the
exercise of it, to look with an evil eye upon all external attempts to
restrain or direct its operations. From this spirit it happens, that in
every political association which is formed upon the principle of
uniting in a common interest a number of lesser sovereignties, there
will be found a kind of eccentric tendency in the subordinate or
inferior orbs, by the operation of which there will be a perpetual
effort in each to fly off from the common centre. This tendency is not
difficult to be accounted for. It has its origin in the love of power.
Power controlled or abridged is almost always the rival and enemy of
that power by which it is controlled or abridged. This simple
proposition will teach us how little reason there is to expect, that
the persons intrusted with the administration of the affairs of the
particular members of a confederacy will at all times be ready, with
perfect good-humor, and an unbiased regard to the public weal, to
execute the resolutions or decrees of the general authority. The
reverse of this results from the constitution of human nature.

If, therefore, the measures of the Confederacy cannot be executed
without the intervention of the particular administrations, there will
be little prospect of their being executed at all. The rulers of the
respective members, whether they have a constitutional right to do it
or not, will undertake to judge of the propriety of the measures
themselves. They will consider the conformity of the thing proposed or
required to their immediate interests or aims; the momentary
conveniences or inconveniences that would attend its adoption. All this
will be done; and in a spirit of interested and suspicious scrutiny,
without that knowledge of national circumstances and reasons of state,
which is essential to a right judgment, and with that strong
predilection in favor of local objects, which can hardly fail to
mislead the decision. The same process must be repeated in every member
of which the body is constituted; and the execution of the plans,
framed by the councils of the whole, will always fluctuate on the
discretion of the ill-informed and prejudiced opinion of every part.
Those who have been conversant in the proceedings of popular
assemblies; who have seen how difficult it often is, where there is no
exterior pressure of circumstances, to bring them to harmonious
resolutions on important points, will readily conceive how impossible
it must be to induce a number of such assemblies, deliberating at a
distance from each other, at different times, and under different
impressions, long to co-operate in the same views and pursuits.

In our case, the concurrence of thirteen distinct sovereign wills is
requisite, under the Confederation, to the complete execution of every
important measure that proceeds from the Union. It has happened as was
to have been foreseen. The measures of the Union have not been
executed; the delinquencies of the States have, step by step, matured
themselves to an extreme, which has, at length, arrested all the wheels
of the national government, and brought them to an awful stand.
Congress at this time scarcely possess the means of keeping up the
forms of administration, till the States can have time to agree upon a
more substantial substitute for the present shadow of a federal
government. Things did not come to this desperate extremity at once.
The causes which have been specified produced at first only unequal and
disproportionate degrees of compliance with the requisitions of the
Union. The greater deficiencies of some States furnished the pretext of
example and the temptation of interest to the complying, or to the
least delinquent States. Why should we do more in proportion than those
who are embarked with us in the same political voyage? Why should we
consent to bear more than our proper share of the common burden? These
were suggestions which human selfishness could not withstand, and which
even speculative men, who looked forward to remote consequences, could
not, without hesitation, combat. Each State, yielding to the persuasive
voice of immediate interest or convenience, has successively withdrawn
its support, till the frail and tottering edifice seems ready to fall
upon our heads, and to crush us beneath its ruins.

PUBLIUS.

 [1] “I mean for the Union.”




THE FEDERALIST.
No. XVI.

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

From the New York Packet.

Tuesday, December 4, 1787.

HAMILTON


To the People of the State of New York:

The tendency of the principle of legislation for States, or
communities, in their political capacities, as it has been exemplified
by the experiment we have made of it, is equally attested by the events
which have befallen all other governments of the confederate kind, of
which we have any account, in exact proportion to its prevalence in
those systems. The confirmations of this fact will be worthy of a
distinct and particular examination. I shall content myself with barely
observing here, that of all the confederacies of antiquity, which
history has handed down to us, the Lycian and Achaean leagues, as far
as there remain vestiges of them, appear to have been most free from
the fetters of that mistaken principle, and were accordingly those
which have best deserved, and have most liberally received, the
applauding suffrages of political writers.

This exceptionable principle may, as truly as emphatically, be styled
the parent of anarchy: It has been seen that delinquencies in the
members of the Union are its natural and necessary offspring; and that
whenever they happen, the only constitutional remedy is force, and the
immediate effect of the use of it, civil war.

It remains to inquire how far so odious an engine of government, in its
application to us, would even be capable of answering its end. If there
should not be a large army constantly at the disposal of the national
government it would either not be able to employ force at all, or, when
this could be done, it would amount to a war between parts of the
Confederacy concerning the infractions of a league, in which the
strongest combination would be most likely to prevail, whether it
consisted of those who supported or of those who resisted the general
authority. It would rarely happen that the delinquency to be redressed
would be confined to a single member, and if there were more than one
who had neglected their duty, similarity of situation would induce them
to unite for common defense. Independent of this motive of sympathy, if
a large and influential State should happen to be the aggressing
member, it would commonly have weight enough with its neighbors to win
over some of them as associates to its cause. Specious arguments of
danger to the common liberty could easily be contrived; plausible
excuses for the deficiencies of the party could, without difficulty, be
invented to alarm the apprehensions, inflame the passions, and
conciliate the good-will, even of those States which were not
chargeable with any violation or omission of duty. This would be the
more likely to take place, as the delinquencies of the larger members
might be expected sometimes to proceed from an ambitious premeditation
in their rulers, with a view to getting rid of all external control
upon their designs of personal aggrandizement; the better to effect
which it is presumable they would tamper beforehand with leading
individuals in the adjacent States. If associates could not be found at
home, recourse would be had to the aid of foreign powers, who would
seldom be disinclined to encouraging the dissensions of a Confederacy,
from the firm union of which they had so much to fear. When the sword
is once drawn, the passions of men observe no bounds of moderation. The
suggestions of wounded pride, the instigations of irritated resentment,
would be apt to carry the States against which the arms of the Union
were exerted, to any extremes necessary to avenge the affront or to
avoid the disgrace of submission. The first war of this kind would
probably terminate in a dissolution of the Union.

This may be considered as the violent death of the Confederacy. Its
more natural death is what we now seem to be on the point of
experiencing, if the federal system be not speedily renovated in a more
substantial form. It is not probable, considering the genius of this
country, that the complying States would often be inclined to support
the authority of the Union by engaging in a war against the
non-complying States. They would always be more ready to pursue the
milder course of putting themselves upon an equal footing with the
delinquent members by an imitation of their example. And the guilt of
all would thus become the security of all. Our past experience has
exhibited the operation of this spirit in its full light. There would,
in fact, be an insuperable difficulty in ascertaining when force could
with propriety be employed. In the article of pecuniary contribution,
which would be the most usual source of delinquency, it would often be
impossible to decide whether it had proceeded from disinclination or
inability. The pretense of the latter would always be at hand. And the
case must be very flagrant in which its fallacy could be detected with
sufficient certainty to justify the harsh expedient of compulsion. It
is easy to see that this problem alone, as often as it should occur,
would open a wide field for the exercise of factious views, of
partiality, and of oppression, in the majority that happened to prevail
in the national council.

It seems to require no pains to prove that the States ought not to
prefer a national Constitution which could only be kept in motion by
the instrumentality of a large army continually on foot to execute the
ordinary requisitions or decrees of the government. And yet this is the
plain alternative involved by those who wish to deny it the power of
extending its operations to individuals. Such a scheme, if practicable
at all, would instantly degenerate into a military despotism; but it
will be found in every light impracticable. The resources of the Union
would not be equal to the maintenance of an army considerable enough to
confine the larger States within the limits of their duty; nor would
the means ever be furnished of forming such an army in the first
instance. Whoever considers the populousness and strength of several of
these States singly at the present juncture, and looks forward to what
they will become, even at the distance of half a century, will at once
dismiss as idle and visionary any scheme which aims at regulating their
movements by laws to operate upon them in their collective capacities,
and to be executed by a coercion applicable to them in the same
capacities. A project of this kind is little less romantic than the
monster-taming spirit which is attributed to the fabulous heroes and
demi-gods of antiquity.

Even in those confederacies which have been composed of members smaller
than many of our counties, the principle of legislation for sovereign
States, supported by military coercion, has never been found effectual.
It has rarely been attempted to be employed, but against the weaker
members; and in most instances attempts to coerce the refractory and
disobedient have been the signals of bloody wars, in which one half of
the confederacy has displayed its banners against the other half.

The result of these observations to an intelligent mind must be clearly
this, that if it be possible at any rate to construct a federal
government capable of regulating the common concerns and preserving the
general tranquillity, it must be founded, as to the objects committed
to its care, upon the reverse of the principle contended for by the
opponents of the proposed Constitution. It must carry its agency to the
persons of the citizens. It must stand in need of no intermediate
legislations; but must itself be empowered to employ the arm of the
ordinary magistrate to execute its own resolutions. The majesty of the
national authority must be manifested through the medium of the courts
of justice. The government of the Union, like that of each State, must
be able to address itself immediately to the hopes and fears of
individuals; and to attract to its support those passions which have
the strongest influence upon the human heart. It must, in short,
possess all the means, and have aright to resort to all the methods, of
executing the powers with which it is intrusted, that are possessed and
exercised by the government of the particular States.

To this reasoning it may perhaps be objected, that if any State should
be disaffected to the authority of the Union, it could at any time
obstruct the execution of its laws, and bring the matter to the same
issue of force, with the necessity of which the opposite scheme is
reproached.

The plausibility of this objection will vanish the moment we advert to
the essential difference between a mere NON-COMPLIANCE and a DIRECT and
ACTIVE RESISTANCE. If the interposition of the State legislatures be
necessary to give effect to a measure of the Union, they have only NOT
TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect
of duty may be disguised under affected but unsubstantial provisions,
so as not to appear, and of course not to excite any alarm in the
people for the safety of the Constitution. The State leaders may even
make a merit of their surreptitious invasions of it on the ground of
some temporary convenience, exemption, or advantage.

But if the execution of the laws of the national government should not
require the intervention of the State legislatures, if they were to
pass into immediate operation upon the citizens themselves, the
particular governments could not interrupt their progress without an
open and violent exertion of an unconstitutional power. No omissions
nor evasions would answer the end. They would be obliged to act, and in
such a manner as would leave no doubt that they had encroached on the
national rights. An experiment of this nature would always be hazardous
in the face of a constitution in any degree competent to its own
defense, and of a people enlightened enough to distinguish between a
legal exercise and an illegal usurpation of authority. The success of
it would require not merely a factious majority in the legislature, but
the concurrence of the courts of justice and of the body of the people.
If the judges were not embarked in a conspiracy with the legislature,
they would pronounce the resolutions of such a majority to be contrary
to the supreme law of the land, unconstitutional, and void. If the
people were not tainted with the spirit of their State representatives,
they, as the natural guardians of the Constitution, would throw their
weight into the national scale and give it a decided preponderancy in
the contest. Attempts of this kind would not often be made with levity
or rashness, because they could seldom be made without danger to the
authors, unless in cases of a tyrannical exercise of the federal
authority.

If opposition to the national government should arise from the
disorderly conduct of refractory or seditious individuals, it could be
overcome by the same means which are daily employed against the same
evil under the State governments. The magistracy, being equally the
ministers of the law of the land, from whatever source it might
emanate, would doubtless be as ready to guard the national as the local
regulations from the inroads of private licentiousness. As to those
partial commotions and insurrections, which sometimes disquiet society,
from the intrigues of an inconsiderable faction, or from sudden or
occasional illhumors that do not infect the great body of the community
the general government could command more extensive resources for the
suppression of disturbances of that kind than would be in the power of
any single member. And as to those mortal feuds which, in certain
conjunctures, spread a conflagration through a whole nation, or through
a very large proportion of it, proceeding either from weighty causes of
discontent given by the government or from the contagion of some
violent popular paroxysm, they do not fall within any ordinary rules of
calculation. When they happen, they commonly amount to revolutions and
dismemberments of empire. No form of government can always either avoid
or control them. It is in vain to hope to guard against events too
mighty for human foresight or precaution, and it would be idle to
object to a government because it could not perform impossibilities.

PUBLIUS.




THE FEDERALIST.
No. XVII.

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

For the Independent Journal.

HAMILTON


To the People of the State of New York:

An objection, of a nature different from that which has been stated and
answered, in my last address, may perhaps be likewise urged against the
principle of legislation for the individual citizens of America. It may
be said that it would tend to render the government of the Union too
powerful, and to enable it to absorb those residuary authorities, which
it might be judged proper to leave with the States for local purposes.
Allowing the utmost latitude to the love of power which any reasonable
man can require, I confess I am at a loss to discover what temptation
the persons intrusted with the administration of the general government
could ever feel to divest the States of the authorities of that
description. The regulation of the mere domestic police of a State
appears to me to hold out slender allurements to ambition. Commerce,
finance, negotiation, and war seem to comprehend all the objects which
have charms for minds governed by that passion; and all the powers
necessary to those objects ought, in the first instance, to be lodged
in the national depository. The administration of private justice
between the citizens of the same State, the supervision of agriculture
and of other concerns of a similar nature, all those things, in short,
which are proper to be provided for by local legislation, can never be
desirable cares of a general jurisdiction. It is therefore improbable
that there should exist a disposition in the federal councils to usurp
the powers with which they are connected; because the attempt to
exercise those powers would be as troublesome as it would be nugatory;
and the possession of them, for that reason, would contribute nothing
to the dignity, to the importance, or to the splendor of the national
government.

But let it be admitted, for argument’s sake, that mere wantonness and
lust of domination would be sufficient to beget that disposition; still
it may be safely affirmed, that the sense of the constituent body of
the national representatives, or, in other words, the people of the
several States, would control the indulgence of so extravagant an
appetite. It will always be far more easy for the State governments to
encroach upon the national authorities than for the national government
to encroach upon the State authorities. The proof of this proposition
turns upon the greater degree of influence which the State governments
if they administer their affairs with uprightness and prudence, will
generally possess over the people; a circumstance which at the same
time teaches us that there is an inherent and intrinsic weakness in all
federal constitutions; and that too much pains cannot be taken in their
organization, to give them all the force which is compatible with the
principles of liberty.

The superiority of influence in favor of the particular governments
would result partly from the diffusive construction of the national
government, but chiefly from the nature of the objects to which the
attention of the State administrations would be directed.

It is a known fact in human nature, that its affections are commonly
weak in proportion to the distance or diffusiveness of the object. Upon
the same principle that a man is more attached to his family than to
his neighborhood, to his neighborhood than to the community at large,
the people of each State would be apt to feel a stronger bias towards
their local governments than towards the government of the Union;
unless the force of that principle should be destroyed by a much better
administration of the latter.

This strong propensity of the human heart would find powerful
auxiliaries in the objects of State regulation.

The variety of more minute interests, which will necessarily fall under
the superintendence of the local administrations, and which will form
so many rivulets of influence, running through every part of the
society, cannot be particularized, without involving a detail too
tedious and uninteresting to compensate for the instruction it might
afford.

There is one transcendant advantage belonging to the province of the
State governments, which alone suffices to place the matter in a clear
and satisfactory light,—I mean the ordinary administration of criminal
and civil justice. This, of all others, is the most powerful, most
universal, and most attractive source of popular obedience and
attachment. It is that which, being the immediate and visible guardian
of life and property, having its benefits and its terrors in constant
activity before the public eye, regulating all those personal interests
and familiar concerns to which the sensibility of individuals is more
immediately awake, contributes, more than any other circumstance, to
impressing upon the minds of the people, affection, esteem, and
reverence towards the government. This great cement of society, which
will diffuse itself almost wholly through the channels of the
particular governments, independent of all other causes of influence,
would insure them so decided an empire over their respective citizens
as to render them at all times a complete counterpoise, and, not
unfrequently, dangerous rivals to the power of the Union.

The operations of the national government, on the other hand, falling
less immediately under the observation of the mass of the citizens, the
benefits derived from it will chiefly be perceived and attended to by
speculative men. Relating to more general interests, they will be less
apt to come home to the feelings of the people; and, in proportion,
less likely to inspire an habitual sense of obligation, and an active
sentiment of attachment.

The reasoning on this head has been abundantly exemplified by the
experience of all federal constitutions with which we are acquainted,
and of all others which have borne the least analogy to them.

Though the ancient feudal systems were not, strictly speaking,
confederacies, yet they partook of the nature of that species of
association. There was a common head, chieftain, or sovereign, whose
authority extended over the whole nation; and a number of subordinate
vassals, or feudatories, who had large portions of land allotted to
them, and numerous trains of INFERIOR vassals or retainers, who
occupied and cultivated that land upon the tenure of fealty or
obedience, to the persons of whom they held it. Each principal vassal
was a kind of sovereign, within his particular demesnes. The
consequences of this situation were a continual opposition to authority
of the sovereign, and frequent wars between the great barons or chief
feudatories themselves. The power of the head of the nation was
commonly too weak, either to preserve the public peace, or to protect
the people against the oppressions of their immediate lords. This
period of European affairs is emphatically styled by historians, the
times of feudal anarchy.

When the sovereign happened to be a man of vigorous and warlike temper
and of superior abilities, he would acquire a personal weight and
influence, which answered, for the time, the purpose of a more regular
authority. But in general, the power of the barons triumphed over that
of the prince; and in many instances his dominion was entirely thrown
off, and the great fiefs were erected into independent principalities
or States. In those instances in which the monarch finally prevailed
over his vassals, his success was chiefly owing to the tyranny of those
vassals over their dependents. The barons, or nobles, equally the
enemies of the sovereign and the oppressors of the common people, were
dreaded and detested by both; till mutual danger and mutual interest
effected a union between them fatal to the power of the aristocracy.
Had the nobles, by a conduct of clemency and justice, preserved the
fidelity and devotion of their retainers and followers, the contests
between them and the prince must almost always have ended in their
favor, and in the abridgment or subversion of the royal authority.

This is not an assertion founded merely in speculation or conjecture.
Among other illustrations of its truth which might be cited, Scotland
will furnish a cogent example. The spirit of clanship which was, at an
early day, introduced into that kingdom, uniting the nobles and their
dependants by ties equivalent to those of kindred, rendered the
aristocracy a constant overmatch for the power of the monarch, till the
incorporation with England subdued its fierce and ungovernable spirit,
and reduced it within those rules of subordination which a more
rational and more energetic system of civil polity had previously
established in the latter kingdom.

The separate governments in a confederacy may aptly be compared with
the feudal baronies; with this advantage in their favor, that from the
reasons already explained, they will generally possess the confidence
and good-will of the people, and with so important a support, will be
able effectually to oppose all encroachments of the national
government. It will be well if they are not able to counteract its
legitimate and necessary authority. The points of similitude consist in
the rivalship of power, applicable to both, and in the CONCENTRATION of
large portions of the strength of the community into particular
DEPOSITS, in one case at the disposal of individuals, in the other case
at the disposal of political bodies.

A concise review of the events that have attended confederate
governments will further illustrate this important doctrine; an
inattention to which has been the great source of our political
mistakes, and has given our jealousy a direction to the wrong side.
This review shall form the subject of some ensuing papers.

PUBLIUS.




THE FEDERALIST.
No. XVIII.

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

For the Independent Journal.

HAMILTON AND MADISON


To the People of the State of New York:

Among the confederacies of antiquity, the most considerable was that of
the Grecian republics, associated under the Amphictyonic council. From
the best accounts transmitted of this celebrated institution, it bore a
very instructive analogy to the present Confederation of the American
States.

The members retained the character of independent and sovereign states,
and had equal votes in the federal council. This council had a general
authority to propose and resolve whatever it judged necessary for the
common welfare of Greece; to declare and carry on war; to decide, in
the last resort, all controversies between the members; to fine the
aggressing party; to employ the whole force of the confederacy against
the disobedient; to admit new members. The Amphictyons were the
guardians of religion, and of the immense riches belonging to the
temple of Delphos, where they had the right of jurisdiction in
controversies between the inhabitants and those who came to consult the
oracle. As a further provision for the efficacy of the federal powers,
they took an oath mutually to defend and protect the united cities, to
punish the violators of this oath, and to inflict vengeance on
sacrilegious despoilers of the temple.

In theory, and upon paper, this apparatus of powers seems amply
sufficient for all general purposes. In several material instances,
they exceed the powers enumerated in the articles of confederation. The
Amphictyons had in their hands the superstition of the times, one of
the principal engines by which government was then maintained; they had
a declared authority to use coercion against refractory cities, and
were bound by oath to exert this authority on the necessary occasions.

Very different, nevertheless, was the experiment from the theory. The
powers, like those of the present Congress, were administered by
deputies appointed wholly by the cities in their political capacities;
and exercised over them in the same capacities. Hence the weakness, the
disorders, and finally the destruction of the confederacy. The more
powerful members, instead of being kept in awe and subordination,
tyrannized successively over all the rest. Athens, as we learn from
Demosthenes, was the arbiter of Greece seventy-three years. The
Lacedaemonians next governed it twenty-nine years; at a subsequent
period, after the battle of Leuctra, the Thebans had their turn of
domination.

It happened but too often, according to Plutarch, that the deputies of
the strongest cities awed and corrupted those of the weaker; and that
judgment went in favor of the most powerful party.

Even in the midst of defensive and dangerous wars with Persia and
Macedon, the members never acted in concert, and were, more or fewer of
them, eternally the dupes or the hirelings of the common enemy. The
intervals of foreign war were filled up by domestic vicissitudes
convulsions, and carnage.

After the conclusion of the war with Xerxes, it appears that the
Lacedaemonians required that a number of the cities should be turned
out of the confederacy for the unfaithful part they had acted. The
Athenians, finding that the Lacedaemonians would lose fewer partisans
by such a measure than themselves, and would become masters of the
public deliberations, vigorously opposed and defeated the attempt. This
piece of history proves at once the inefficiency of the union, the
ambition and jealousy of its most powerful members, and the dependent
and degraded condition of the rest. The smaller members, though
entitled by the theory of their system to revolve in equal pride and
majesty around the common center, had become, in fact, satellites of
the orbs of primary magnitude.

Had the Greeks, says the Abbe Milot, been as wise as they were
courageous, they would have been admonished by experience of the
necessity of a closer union, and would have availed themselves of the
peace which followed their success against the Persian arms, to
establish such a reformation. Instead of this obvious policy, Athens
and Sparta, inflated with the victories and the glory they had
acquired, became first rivals and then enemies; and did each other
infinitely more mischief than they had suffered from Xerxes. Their
mutual jealousies, fears, hatreds, and injuries ended in the celebrated
Peloponnesian war; which itself ended in the ruin and slavery of the
Athenians who had begun it.

As a weak government, when not at war, is ever agitated by internal
dissentions, so these never fail to bring on fresh calamities from
abroad. The Phocians having ploughed up some consecrated ground
belonging to the temple of Apollo, the Amphictyonic council, according
to the superstition of the age, imposed a fine on the sacrilegious
offenders. The Phocians, being abetted by Athens and Sparta, refused to
submit to the decree. The Thebans, with others of the cities, undertook
to maintain the authority of the Amphictyons, and to avenge the
violated god. The latter, being the weaker party, invited the
assistance of Philip of Macedon, who had secretly fostered the contest.
Philip gladly seized the opportunity of executing the designs he had
long planned against the liberties of Greece. By his intrigues and
bribes he won over to his interests the popular leaders of several
cities; by their influence and votes, gained admission into the
Amphictyonic council; and by his arts and his arms, made himself master
of the confederacy.

Such were the consequences of the fallacious principle on which this
interesting establishment was founded. Had Greece, says a judicious
observer on her fate, been united by a stricter confederation, and
persevered in her union, she would never have worn the chains of
Macedon; and might have proved a barrier to the vast projects of Rome.

The Achaean league, as it is called, was another society of Grecian
republics, which supplies us with valuable instruction.

The Union here was far more intimate, and its organization much wiser,
than in the preceding instance. It will accordingly appear, that though
not exempt from a similar catastrophe, it by no means equally deserved
it.

The cities composing this league retained their municipal jurisdiction,
appointed their own officers, and enjoyed a perfect equality. The
senate, in which they were represented, had the sole and exclusive
right of peace and war; of sending and receiving ambassadors; of
entering into treaties and alliances; of appointing a chief magistrate
or praetor, as he was called, who commanded their armies, and who, with
the advice and consent of ten of the senators, not only administered
the government in the recess of the senate, but had a great share in
its deliberations, when assembled. According to the primitive
constitution, there were two praetors associated in the administration;
but on trial a single one was preferred.

It appears that the cities had all the same laws and customs, the same
weights and measures, and the same money. But how far this effect
proceeded from the authority of the federal council is left in
uncertainty. It is said only that the cities were in a manner compelled
to receive the same laws and usages. When Lacedaemon was brought into
the league by Philopoemen, it was attended with an abolition of the
institutions and laws of Lycurgus, and an adoption of those of the
Achaeans. The Amphictyonic confederacy, of which she had been a member,
left her in the full exercise of her government and her legislation.
This circumstance alone proves a very material difference in the genius
of the two systems.

It is much to be regretted that such imperfect monuments remain of this
curious political fabric. Could its interior structure and regular
operation be ascertained, it is probable that more light would be
thrown by it on the science of federal government, than by any of the
like experiments with which we are acquainted.

One important fact seems to be witnessed by all the historians who take
notice of Achaean affairs. It is, that as well after the renovation of
the league by Aratus, as before its dissolution by the arts of Macedon,
there was infinitely more of moderation and justice in the
administration of its government, and less of violence and sedition in
the people, than were to be found in any of the cities exercising
SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his
observations on Greece, says that the popular government, which was so
tempestuous elsewhere, caused no disorders in the members of the
Achaean republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL
AUTHORITY AND LAWS OF THE CONFEDERACY.

We are not to conclude too hastily, however, that faction did not, in a
certain degree, agitate the particular cities; much less that a due
subordination and harmony reigned in the general system. The contrary
is sufficiently displayed in the vicissitudes and fate of the republic.

Whilst the Amphictyonic confederacy remained, that of the Achaeans,
which comprehended the less important cities only, made little figure
on the theatre of Greece. When the former became a victim to Macedon,
the latter was spared by the policy of Philip and Alexander. Under the
successors of these princes, however, a different policy prevailed. The
arts of division were practiced among the Achaeans. Each city was
seduced into a separate interest; the union was dissolved. Some of the
cities fell under the tyranny of Macedonian garrisons; others under
that of usurpers springing out of their own confusions. Shame and
oppression erelong awaken their love of liberty. A few cities reunited.
Their example was followed by others, as opportunities were found of
cutting off their tyrants. The league soon embraced almost the whole
Peloponnesus. Macedon saw its progress; but was hindered by internal
dissensions from stopping it. All Greece caught the enthusiasm and
seemed ready to unite in one confederacy, when the jealousy and envy in
Sparta and Athens, of the rising glory of the Achaeans, threw a fatal
damp on the enterprise. The dread of the Macedonian power induced the
league to court the alliance of the Kings of Egypt and Syria, who, as
successors of Alexander, were rivals of the king of Macedon. This
policy was defeated by Cleomenes, king of Sparta, who was led by his
ambition to make an unprovoked attack on his neighbors, the Achaeans,
and who, as an enemy to Macedon, had interest enough with the Egyptian
and Syrian princes to effect a breach of their engagements with the
league.

The Achaeans were now reduced to the dilemma of submitting to
Cleomenes, or of supplicating the aid of Macedon, its former oppressor.
The latter expedient was adopted. The contests of the Greeks always
afforded a pleasing opportunity to that powerful neighbor of
intermeddling in their affairs. A Macedonian army quickly appeared.
Cleomenes was vanquished. The Achaeans soon experienced, as often
happens, that a victorious and powerful ally is but another name for a
master. All that their most abject compliances could obtain from him
was a toleration of the exercise of their laws. Philip, who was now on
the throne of Macedon, soon provoked by his tyrannies, fresh
combinations among the Greeks. The Achaeans, though weakened by
internal dissensions and by the revolt of Messene, one of its members,
being joined by the AEtolians and Athenians, erected the standard of
opposition. Finding themselves, though thus supported, unequal to the
undertaking, they once more had recourse to the dangerous expedient of
introducing the succor of foreign arms. The Romans, to whom the
invitation was made, eagerly embraced it. Philip was conquered; Macedon
subdued. A new crisis ensued to the league. Dissensions broke out among
it members. These the Romans fostered. Callicrates and other popular
leaders became mercenary instruments for inveigling their countrymen.
The more effectually to nourish discord and disorder the Romans had, to
the astonishment of those who confided in their sincerity, already
proclaimed universal liberty[1] throughout Greece. With the same
insidious views, they now seduced the members from the league, by
representing to their pride the violation it committed on their
sovereignty. By these arts this union, the last hope of Greece, the
last hope of ancient liberty, was torn into pieces; and such imbecility
and distraction introduced, that the arms of Rome found little
difficulty in completing the ruin which their arts had commenced. The
Achaeans were cut to pieces, and Achaia loaded with chains, under which
it is groaning at this hour.

I have thought it not superfluous to give the outlines of this
important portion of history; both because it teaches more than one
lesson, and because, as a supplement to the outlines of the Achaean
constitution, it emphatically illustrates the tendency of federal
bodies rather to anarchy among the members, than to tyranny in the
head.

PUBLIUS.

 [1] This was but another name more specious for the independence of
 the members on the federal head.




THE FEDERALIST.
No. XIX.

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

For the Independent Journal.

HAMILTON AND MADISON


To the People of the State of New York:

The examples of ancient confederacies, cited in my last paper, have not
exhausted the source of experimental instruction on this subject. There
are existing institutions, founded on a similar principle, which merit
particular consideration. The first which presents itself is the
Germanic body.

In the early ages of Christianity, Germany was occupied by seven
distinct nations, who had no common chief. The Franks, one of the
number, having conquered the Gauls, established the kingdom which has
taken its name from them. In the ninth century Charlemagne, its warlike
monarch, carried his victorious arms in every direction; and Germany
became a part of his vast dominions. On the dismemberment, which took
place under his sons, this part was erected into a separate and
independent empire. Charlemagne and his immediate descendants possessed
the reality, as well as the ensigns and dignity of imperial power. But
the principal vassals, whose fiefs had become hereditary, and who
composed the national diets which Charlemagne had not abolished,
gradually threw off the yoke and advanced to sovereign jurisdiction and
independence. The force of imperial sovereignty was insufficient to
restrain such powerful dependants; or to preserve the unity and
tranquillity of the empire. The most furious private wars, accompanied
with every species of calamity, were carried on between the different
princes and states. The imperial authority, unable to maintain the
public order, declined by degrees till it was almost extinct in the
anarchy, which agitated the long interval between the death of the last
emperor of the Suabian, and the accession of the first emperor of the
Austrian lines. In the eleventh century the emperors enjoyed full
sovereignty: In the fifteenth they had little more than the symbols and
decorations of power.

Out of this feudal system, which has itself many of the important
features of a confederacy, has grown the federal system which
constitutes the Germanic empire. Its powers are vested in a diet
representing the component members of the confederacy; in the emperor,
who is the executive magistrate, with a negative on the decrees of the
diet; and in the imperial chamber and the aulic council, two judiciary
tribunals having supreme jurisdiction in controversies which concern
the empire, or which happen among its members.

The diet possesses the general power of legislating for the empire; of
making war and peace; contracting alliances; assessing quotas of troops
and money; constructing fortresses; regulating coin; admitting new
members; and subjecting disobedient members to the ban of the empire,
by which the party is degraded from his sovereign rights and his
possessions forfeited. The members of the confederacy are expressly
restricted from entering into compacts prejudicial to the empire; from
imposing tolls and duties on their mutual intercourse, without the
consent of the emperor and diet; from altering the value of money; from
doing injustice to one another; or from affording assistance or retreat
to disturbers of the public peace. And the ban is denounced against
such as shall violate any of these restrictions. The members of the
diet, as such, are subject in all cases to be judged by the emperor and
diet, and in their private capacities by the aulic council and imperial
chamber.

The prerogatives of the emperor are numerous. The most important of
them are: his exclusive right to make propositions to the diet; to
negative its resolutions; to name ambassadors; to confer dignities and
titles; to fill vacant electorates; to found universities; to grant
privileges not injurious to the states of the empire; to receive and
apply the public revenues; and generally to watch over the public
safety. In certain cases, the electors form a council to him. In
quality of emperor, he possesses no territory within the empire, nor
receives any revenue for his support. But his revenue and dominions, in
other qualities, constitute him one of the most powerful princes in
Europe.

From such a parade of constitutional powers, in the representatives and
head of this confederacy, the natural supposition would be, that it
must form an exception to the general character which belongs to its
kindred systems. Nothing would be further from the reality. The
fundamental principle on which it rests, that the empire is a community
of sovereigns, that the diet is a representation of sovereigns and that
the laws are addressed to sovereigns, renders the empire a nerveless
body, incapable of regulating its own members, insecure against
external dangers, and agitated with unceasing fermentations in its own
bowels.

The history of Germany is a history of wars between the emperor and the
princes and states; of wars among the princes and states themselves; of
the licentiousness of the strong, and the oppression of the weak; of
foreign intrusions, and foreign intrigues; of requisitions of men and
money disregarded, or partially complied with; of attempts to enforce
them, altogether abortive, or attended with slaughter and desolation,
involving the innocent with the guilty; of general inbecility,
confusion, and misery.

In the sixteenth century, the emperor, with one part of the empire on
his side, was seen engaged against the other princes and states. In one
of the conflicts, the emperor himself was put to flight, and very near
being made prisoner by the elector of Saxony. The late king of Prussia
was more than once pitted against his imperial sovereign; and commonly
proved an overmatch for him. Controversies and wars among the members
themselves have been so common, that the German annals are crowded with
the bloody pages which describe them. Previous to the peace of
Westphalia, Germany was desolated by a war of thirty years, in which
the emperor, with one half of the empire, was on one side, and Sweden,
with the other half, on the opposite side. Peace was at length
negotiated, and dictated by foreign powers; and the articles of it, to
which foreign powers are parties, made a fundamental part of the
Germanic constitution.

If the nation happens, on any emergency, to be more united by the
necessity of self-defense, its situation is still deplorable. Military
preparations must be preceded by so many tedious discussions, arising
from the jealousies, pride, separate views, and clashing pretensions of
sovereign bodies, that before the diet can settle the arrangements, the
enemy are in the field; and before the federal troops are ready to take
it, are retiring into winter quarters.

The small body of national troops, which has been judged necessary in
time of peace, is defectively kept up, badly paid, infected with local
prejudices, and supported by irregular and disproportionate
contributions to the treasury.

The impossibility of maintaining order and dispensing justice among
these sovereign subjects, produced the experiment of dividing the
empire into nine or ten circles or districts; of giving them an
interior organization, and of charging them with the military execution
of the laws against delinquent and contumacious members. This
experiment has only served to demonstrate more fully the radical vice
of the constitution. Each circle is the miniature picture of the
deformities of this political monster. They either fail to execute
their commissions, or they do it with all the devastation and carnage
of civil war. Sometimes whole circles are defaulters; and then they
increase the mischief which they were instituted to remedy.

We may form some judgment of this scheme of military coercion from a
sample given by Thuanus. In Donawerth, a free and imperial city of the
circle of Suabia, the Abb 300 de St. Croix enjoyed certain immunities
which had been reserved to him. In the exercise of these, on some
public occasions, outrages were committed on him by the people of the
city. The consequence was that the city was put under the ban of the
empire, and the Duke of Bavaria, though director of another circle,
obtained an appointment to enforce it. He soon appeared before the city
with a corps of ten thousand troops, and finding it a fit occasion, as
he had secretly intended from the beginning, to revive an antiquated
claim, on the pretext that his ancestors had suffered the place to be
dismembered from his territory,[1] he took possession of it in his own
name, disarmed, and punished the inhabitants, and reannexed the city to
his domains.

It may be asked, perhaps, what has so long kept this disjointed machine
from falling entirely to pieces? The answer is obvious: The weakness of
most of the members, who are unwilling to expose themselves to the
mercy of foreign powers; the weakness of most of the principal members,
compared with the formidable powers all around them; the vast weight
and influence which the emperor derives from his separate and
heriditary dominions; and the interest he feels in preserving a system
with which his family pride is connected, and which constitutes him the
first prince in Europe; —these causes support a feeble and precarious
Union; whilst the repellant quality, incident to the nature of
sovereignty, and which time continually strengthens, prevents any
reform whatever, founded on a proper consolidation. Nor is it to be
imagined, if this obstacle could be surmounted, that the neighboring
powers would suffer a revolution to take place which would give to the
empire the force and preeminence to which it is entitled. Foreign
nations have long considered themselves as interested in the changes
made by events in this constitution; and have, on various occasions,
betrayed their policy of perpetuating its anarchy and weakness.

If more direct examples were wanting, Poland, as a government over
local sovereigns, might not improperly be taken notice of. Nor could
any proof more striking be given of the calamities flowing from such
institutions. Equally unfit for self-government and self-defense, it
has long been at the mercy of its powerful neighbors; who have lately
had the mercy to disburden it of one third of its people and
territories.

The connection among the Swiss cantons scarcely amounts to a
confederacy; though it is sometimes cited as an instance of the
stability of such institutions.

They have no common treasury; no common troops even in war; no common
coin; no common judicatory; nor any other common mark of sovereignty.

They are kept together by the peculiarity of their topographical
position; by their individual weakness and insignificancy; by the fear
of powerful neighbors, to one of which they were formerly subject; by
the few sources of contention among a people of such simple and
homogeneous manners; by their joint interest in their dependent
possessions; by the mutual aid they stand in need of, for suppressing
insurrections and rebellions, an aid expressly stipulated and often
required and afforded; and by the necessity of some regular and
permanent provision for accomodating disputes among the cantons. The
provision is, that the parties at variance shall each choose four
judges out of the neutral cantons, who, in case of disagreement, choose
an umpire. This tribunal, under an oath of impartiality, pronounces
definitive sentence, which all the cantons are bound to enforce. The
competency of this regulation may be estimated by a clause in their
treaty of 1683, with Victor Amadeus of Savoy; in which he obliges
himself to interpose as mediator in disputes between the cantons, and
to employ force, if necessary, against the contumacious party.

So far as the peculiarity of their case will admit of comparison with
that of the United States, it serves to confirm the principle intended
to be established. Whatever efficacy the union may have had in ordinary
cases, it appears that the moment a cause of difference sprang up,
capable of trying its strength, it failed. The controversies on the
subject of religion, which in three instances have kindled violent and
bloody contests, may be said, in fact, to have severed the league. The
Protestant and Catholic cantons have since had their separate diets,
where all the most important concerns are adjusted, and which have left
the general diet little other business than to take care of the common
bailages.

That separation had another consequence, which merits attention. It
produced opposite alliances with foreign powers: of Berne, at the head
of the Protestant association, with the United Provinces; and of
Luzerne, at the head of the Catholic association, with France.

PUBLIUS.

 [1] Pfeffel, “Nouvel Abrég. Chronol. de l’Hist., etc., d’Allemagne,”
 says the pretext was to indemnify himself for the expense of the
 expedition.




THE FEDERALIST.
No. XX.

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

From the New York Packet.

Tuesday, December 11, 1787.

HAMILTON AND MADISON


To the People of the State of New York:

The United Netherlands are a confederacy of republics, or rather of
aristocracies of a very remarkable texture, yet confirming all the
lessons derived from those which we have already reviewed.

The union is composed of seven coequal and sovereign states, and each
state or province is a composition of equal and independent cities. In
all important cases, not only the provinces but the cities must be
unanimous.

The sovereignty of the Union is represented by the States-General,
consisting usually of about fifty deputies appointed by the provinces.
They hold their seats, some for life, some for six, three, and one
years; from two provinces they continue in appointment during pleasure.

The States-General have authority to enter into treaties and alliances;
to make war and peace; to raise armies and equip fleets; to ascertain
quotas and demand contributions. In all these cases, however, unanimity
and the sanction of their constituents are requisite. They have
authority to appoint and receive ambassadors; to execute treaties and
alliances already formed; to provide for the collection of duties on
imports and exports; to regulate the mint, with a saving to the
provincial rights; to govern as sovereigns the dependent territories.
The provinces are restrained, unless with the general consent, from
entering into foreign treaties; from establishing imposts injurious to
others, or charging their neighbors with higher duties than their own
subjects. A council of state, a chamber of accounts, with five colleges
of admiralty, aid and fortify the federal administration.

The executive magistrate of the union is the stadtholder, who is now an
hereditary prince. His principal weight and influence in the republic
are derived from this independent title; from his great patrimonial
estates; from his family connections with some of the chief potentates
of Europe; and, more than all, perhaps, from his being stadtholder in
the several provinces, as well as for the union; in which provincial
quality he has the appointment of town magistrates under certain
regulations, executes provincial decrees, presides when he pleases in
the provincial tribunals, and has throughout the power of pardon.

As stadtholder of the union, he has, however, considerable
prerogatives.

In his political capacity he has authority to settle disputes between
the provinces, when other methods fail; to assist at the deliberations
of the States-General, and at their particular conferences; to give
audiences to foreign ambassadors, and to keep agents for his particular
affairs at foreign courts.

In his military capacity he commands the federal troops, provides for
garrisons, and in general regulates military affairs; disposes of all
appointments, from colonels to ensigns, and of the governments and
posts of fortified towns.

In his marine capacity he is admiral-general, and superintends and
directs every thing relative to naval forces and other naval affairs;
presides in the admiralties in person or by proxy; appoints
lieutenant-admirals and other officers; and establishes councils of
war, whose sentences are not executed till he approves them.

His revenue, exclusive of his private income, amounts to three hundred
thousand florins. The standing army which he commands consists of about
forty thousand men.

Such is the nature of the celebrated Belgic confederacy, as delineated
on parchment. What are the characters which practice has stamped upon
it? Imbecility in the government; discord among the provinces; foreign
influence and indignities; a precarious existence in peace, and
peculiar calamities from war.

It was long ago remarked by Grotius, that nothing but the hatred of his
countrymen to the house of Austria kept them from being ruined by the
vices of their constitution.

The union of Utrecht, says another respectable writer, reposes an
authority in the States-General, seemingly sufficient to secure
harmony, but the jealousy in each province renders the practice very
different from the theory.

The same instrument, says another, obliges each province to levy
certain contributions; but this article never could, and probably never
will, be executed; because the inland provinces, who have little
commerce, cannot pay an equal quota.

In matters of contribution, it is the practice to waive the articles of
the constitution. The danger of delay obliges the consenting provinces
to furnish their quotas, without waiting for the others; and then to
obtain reimbursement from the others, by deputations, which are
frequent, or otherwise, as they can. The great wealth and influence of
the province of Holland enable her to effect both these purposes.

It has more than once happened, that the deficiencies had to be
ultimately collected at the point of the bayonet; a thing practicable,
though dreadful, in a confedracy where one of the members exceeds in
force all the rest, and where several of them are too small to meditate
resistance; but utterly impracticable in one composed of members,
several of which are equal to each other in strength and resources, and
equal singly to a vigorous and persevering defense.

Foreign ministers, says Sir William Temple, who was himself a foreign
minister, elude matters taken ad referendum, by tampering with the
provinces and cities. In 1726, the treaty of Hanover was delayed by
these means a whole year. Instances of a like nature are numerous and
notorious.

In critical emergencies, the States-General are often compelled to
overleap their constitutional bounds. In 1688, they concluded a treaty
of themselves at the risk of their heads. The treaty of Westphalia, in
1648, by which their independence was formerly and finally recognized,
was concluded without the consent of Zealand. Even as recently as the
last treaty of peace with Great Britain, the constitutional principle
of unanimity was departed from. A weak constitution must necessarily
terminate in dissolution, for want of proper powers, or the usurpation
of powers requisite for the public safety. Whether the usurpation, when
once begun, will stop at the salutary point, or go forward to the
dangerous extreme, must depend on the contingencies of the moment.
Tyranny has perhaps oftener grown out of the assumptions of power,
called for, on pressing exigencies, by a defective constitution, than
out of the full exercise of the largest constitutional authorities.

Notwithstanding the calamities produced by the stadtholdership, it has
been supposed that without his influence in the individual provinces,
the causes of anarchy manifest in the confederacy would long ago have
dissolved it. “Under such a government,” says the Abbe Mably, “the
Union could never have subsisted, if the provinces had not a spring
within themselves, capable of quickening their tardiness, and
compelling them to the same way of thinking. This spring is the
stadtholder.” It is remarked by Sir William Temple, “that in the
intermissions of the stadtholdership, Holland, by her riches and her
authority, which drew the others into a sort of dependence, supplied
the place.”

These are not the only circumstances which have controlled the tendency
to anarchy and dissolution. The surrounding powers impose an absolute
necessity of union to a certain degree, at the same time that they
nourish by their intrigues the constitutional vices which keep the
republic in some degree always at their mercy.

The true patriots have long bewailed the fatal tendency of these vices,
and have made no less than four regular experiments by EXTRAORDINARY
ASSEMBLIES, convened for the special purpose, to apply a remedy. As
many times has their laudable zeal found it impossible to UNITE THE
PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal
evils of the existing constitution. Let us pause, my fellow-citizens,
for one moment, over this melancholy and monitory lesson of history;
and with the tear that drops for the calamities brought on mankind by
their adverse opinions and selfish passions, let our gratitude mingle
an ejaculation to Heaven, for the propitious concord which has
distinguished the consultations for our political happiness.

A design was also conceived of establishing a general tax to be
administered by the federal authority. This also had its adversaries
and failed.

This unhappy people seem to be now suffering from popular convulsions,
from dissensions among the states, and from the actual invasion of
foreign arms, the crisis of their destiny. All nations have their eyes
fixed on the awful spectacle. The first wish prompted by humanity is,
that this severe trial may issue in such a revolution of their
government as will establish their union, and render it the parent of
tranquillity, freedom and happiness: The next, that the asylum under
which, we trust, the enjoyment of these blessings will speedily be
secured in this country, may receive and console them for the
catastrophe of their own.

I make no apology for having dwelt so long on the contemplation of
these federal precedents. Experience is the oracle of truth; and where
its responses are unequivocal, they ought to be conclusive and sacred.
The important truth, which it unequivocally pronounces in the present
case, is that a sovereignty over sovereigns, a government over
governments, a legislation for communities, as contradistinguished from
individuals, as it is a solecism in theory, so in practice it is
subversive of the order and ends of civil polity, by substituting
VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in
place of the mild and salutary COERCION of the MAGISTRACY.

PUBLIUS.




THE FEDERALIST.
No. XXI.

Other Defects of the Present Confederation

For the Independent Journal.

HAMILTON


To the People of the State of New York:

Having in the three last numbers taken a summary review of the
principal circumstances and events which have depicted the genius and
fate of other confederate governments, I shall now proceed in the
enumeration of the most important of those defects which have hitherto
disappointed our hopes from the system established among ourselves. To
form a safe and satisfactory judgment of the proper remedy, it is
absolutely necessary that we should be well acquainted with the extent
and malignity of the disease.

The next most palpable defect of the subsisting Confederation, is the
total want of a SANCTION to its laws. The United States, as now
composed, have no powers to exact obedience, or punish disobedience to
their resolutions, either by pecuniary mulcts, by a suspension or
divestiture of privileges, or by any other constitutional mode. There
is no express delegation of authority to them to use force against
delinquent members; and if such a right should be ascribed to the
federal head, as resulting from the nature of the social compact
between the States, it must be by inference and construction, in the
face of that part of the second article, by which it is declared, “that
each State shall retain every power, jurisdiction, and right, not
EXPRESSLY delegated to the United States in Congress assembled.” There
is, doubtless, a striking absurdity in supposing that a right of this
kind does not exist, but we are reduced to the dilemma either of
embracing that supposition, preposterous as it may seem, or of
contravening or explaining away a provision, which has been of late a
repeated theme of the eulogies of those who oppose the new
Constitution; and the want of which, in that plan, has been the subject
of much plausible animadversion, and severe criticism. If we are
unwilling to impair the force of this applauded provision, we shall be
obliged to conclude, that the United States afford the extraordinary
spectacle of a government destitute even of the shadow of
constitutional power to enforce the execution of its own laws. It will
appear, from the specimens which have been cited, that the American
Confederacy, in this particular, stands discriminated from every other
institution of a similar kind, and exhibits a new and unexampled
phenomenon in the political world.

The want of a mutual guaranty of the State governments is another
capital imperfection in the federal plan. There is nothing of this kind
declared in the articles that compose it; and to imply a tacit guaranty
from considerations of utility, would be a still more flagrant
departure from the clause which has been mentioned, than to imply a
tacit power of coercion from the like considerations. The want of a
guaranty, though it might in its consequences endanger the Union, does
not so immediately attack its existence as the want of a constitutional
sanction to its laws.

Without a guaranty the assistance to be derived from the Union in
repelling those domestic dangers which may sometimes threaten the
existence of the State constitutions, must be renounced. Usurpation may
rear its crest in each State, and trample upon the liberties of the
people, while the national government could legally do nothing more
than behold its encroachments with indignation and regret. A successful
faction may erect a tyranny on the ruins of order and law, while no
succor could constitutionally be afforded by the Union to the friends
and supporters of the government. The tempestuous situation from which
Massachusetts has scarcely emerged, evinces that dangers of this kind
are not merely speculative. Who can determine what might have been the
issue of her late convulsions, if the malcontents had been headed by a
Caesar or by a Cromwell? Who can predict what effect a despotism,
established in Massachusetts, would have upon the liberties of New
Hampshire or Rhode Island, of Connecticut or New York?

The inordinate pride of State importance has suggested to some minds an
objection to the principle of a guaranty in the federal government, as
involving an officious interference in the domestic concerns of the
members. A scruple of this kind would deprive us of one of the
principal advantages to be expected from union, and can only flow from
a misapprehension of the nature of the provision itself. It could be no
impediment to reforms of the State constitution by a majority of the
people in a legal and peaceable mode. This right would remain
undiminished. The guaranty could only operate against changes to be
effected by violence. Towards the preventions of calamities of this
kind, too many checks cannot be provided. The peace of society and the
stability of government depend absolutely on the efficacy of the
precautions adopted on this head. Where the whole power of the
government is in the hands of the people, there is the less pretense
for the use of violent remedies in partial or occasional distempers of
the State. The natural cure for an ill-administration, in a popular or
representative constitution, is a change of men. A guaranty by the
national authority would be as much levelled against the usurpations of
rulers as against the ferments and outrages of faction and sedition in
the community.

The principle of regulating the contributions of the States to the
common treasury by QUOTAS is another fundamental error in the
Confederation. Its repugnancy to an adequate supply of the national
exigencies has been already pointed out, and has sufficiently appeared
from the trial which has been made of it. I speak of it now solely with
a view to equality among the States. Those who have been accustomed to
contemplate the circumstances which produce and constitute national
wealth, must be satisfied that there is no common standard or barometer
by which the degrees of it can be ascertained. Neither the value of
lands, nor the numbers of the people, which have been successively
proposed as the rule of State contributions, has any pretension to
being a just representative. If we compare the wealth of the United
Netherlands with that of Russia or Germany, or even of France, and if
we at the same time compare the total value of the lands and the
aggregate population of that contracted district with the total value
of the lands and the aggregate population of the immense regions of
either of the three last-mentioned countries, we shall at once discover
that there is no comparison between the proportion of either of these
two objects and that of the relative wealth of those nations. If the
like parallel were to be run between several of the American States, it
would furnish a like result. Let Virginia be contrasted with North
Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey,
and we shall be convinced that the respective abilities of those
States, in relation to revenue, bear little or no analogy to their
comparative stock in lands or to their comparative population. The
position may be equally illustrated by a similar process between the
counties of the same State. No man who is acquainted with the State of
New York will doubt that the active wealth of King’s County bears a
much greater proportion to that of Montgomery than it would appear to
be if we should take either the total value of the lands or the total
number of the people as a criterion!

The wealth of nations depends upon an infinite variety of causes.
Situation, soil, climate, the nature of the productions, the nature of
the government, the genius of the citizens, the degree of information
they possess, the state of commerce, of arts, of industry, these
circumstances and many more, too complex, minute, or adventitious to
admit of a particular specification, occasion differences hardly
conceivable in the relative opulence and riches of different countries.
The consequence clearly is that there can be no common measure of
national wealth, and, of course, no general or stationary rule by which
the ability of a state to pay taxes can be determined. The attempt,
therefore, to regulate the contributions of the members of a
confederacy by any such rule, cannot fail to be productive of glaring
inequality and extreme oppression.

This inequality would of itself be sufficient in America to work the
eventual destruction of the Union, if any mode of enforcing a
compliance with its requisitions could be devised. The suffering States
would not long consent to remain associated upon a principle which
distributes the public burdens with so unequal a hand, and which was
calculated to impoverish and oppress the citizens of some States, while
those of others would scarcely be conscious of the small proportion of
the weight they were required to sustain. This, however, is an evil
inseparable from the principle of quotas and requisitions.

There is no method of steering clear of this inconvenience, but by
authorizing the national government to raise its own revenues in its
own way. Imposts, excises, and, in general, all duties upon articles of
consumption, may be compared to a fluid, which will, in time, find its
level with the means of paying them. The amount to be contributed by
each citizen will in a degree be at his own option, and can be
regulated by an attention to his resources. The rich may be
extravagant, the poor can be frugal; and private oppression may always
be avoided by a judicious selection of objects proper for such
impositions. If inequalities should arise in some States from duties on
particular objects, these will, in all probability, be counterbalanced
by proportional inequalities in other States, from the duties on other
objects. In the course of time and things, an equilibrium, as far as it
is attainable in so complicated a subject, will be established
everywhere. Or, if inequalities should still exist, they would neither
be so great in their degree, so uniform in their operation, nor so
odious in their appearance, as those which would necessarily spring
from quotas, upon any scale that can possibly be devised.

It is a signal advantage of taxes on articles of consumption, that they
contain in their own nature a security against excess. They prescribe
their own limit; which cannot be exceeded without defeating the end
proposed, that is, an extension of the revenue. When applied to this
object, the saying is as just as it is witty, that, “in political
arithmetic, two and two do not always make four.”

If duties are too high, they lessen the consumption; the collection is
eluded; and the product to the treasury is not so great as when they
are confined within proper and moderate bounds. This forms a complete
barrier against any material oppression of the citizens by taxes of
this class, and is itself a natural limitation of the power of imposing
them.

Impositions of this kind usually fall under the denomination of
indirect taxes, and must for a long time constitute the chief part of
the revenue raised in this country. Those of the direct kind, which
principally relate to land and buildings, may admit of a rule of
apportionment. Either the value of land, or the number of the people,
may serve as a standard. The state of agriculture and the populousness
of a country have been considered as nearly connected with each other.
And, as a rule, for the purpose intended, numbers, in the view of
simplicity and certainty, are entitled to a preference. In every
country it is a herculean task to obtain a valuation of the land; in a
country imperfectly settled and progressive in improvement, the
difficulties are increased almost to impracticability. The expense of
an accurate valuation is, in all situations, a formidable objection. In
a branch of taxation where no limits to the discretion of the
government are to be found in the nature of things, the establishment
of a fixed rule, not incompatible with the end, may be attended with
fewer inconveniences than to leave that discretion altogether at large.

PUBLIUS.




THE FEDERALIST.
No. XXII.

The Same Subject Continued

(Other Defects of the Present Confederation)

From the New York Packet.

Friday, December 14, 1787.

HAMILTON


To the People of the State of New York:

In addition to the defects already enumerated in the existing federal
system, there are others of not less importance, which concur in
rendering it altogether unfit for the administration of the affairs of
the Union.

The want of a power to regulate commerce is by all parties allowed to
be of the number. The utility of such a power has been anticipated
under the first head of our inquiries; and for this reason, as well as
from the universal conviction entertained upon the subject, little need
be added in this place. It is indeed evident, on the most superficial
view, that there is no object, either as it respects the interests of
trade or finance, that more strongly demands a federal superintendence.
The want of it has already operated as a bar to the formation of
beneficial treaties with foreign powers, and has given occasions of
dissatisfaction between the States. No nation acquainted with the
nature of our political association would be unwise enough to enter
into stipulations with the United States, by which they conceded
privileges of any importance to them, while they were apprised that the
engagements on the part of the Union might at any moment be violated by
its members, and while they found from experience that they might enjoy
every advantage they desired in our markets, without granting us any
return but such as their momentary convenience might suggest. It is
not, therefore, to be wondered at that Mr. Jenkinson, in ushering into
the House of Commons a bill for regulating the temporary intercourse
between the two countries, should preface its introduction by a
declaration that similar provisions in former bills had been found to
answer every purpose to the commerce of Great Britain, and that it
would be prudent to persist in the plan until it should appear whether
the American government was likely or not to acquire greater
consistency.[1]

Several States have endeavored, by separate prohibitions, restrictions,
and exclusions, to influence the conduct of that kingdom in this
particular, but the want of concert, arising from the want of a general
authority and from clashing and dissimilar views in the State, has
hitherto frustrated every experiment of the kind, and will continue to
do so as long as the same obstacles to a uniformity of measures
continue to exist.

The interfering and unneighborly regulations of some States, contrary
to the true spirit of the Union, have, in different instances, given
just cause of umbrage and complaint to others, and it is to be feared
that examples of this nature, if not restrained by a national control,
would be multiplied and extended till they became not less serious
sources of animosity and discord than injurious impediments to the
intercourse between the different parts of the Confederacy. “The
commerce of the German empire[2] is in continual trammels from the
multiplicity of the duties which the several princes and states exact
upon the merchandises passing through their territories, by means of
which the fine streams and navigable rivers with which Germany is so
happily watered are rendered almost useless.” Though the genius of the
people of this country might never permit this description to be
strictly applicable to us, yet we may reasonably expect, from the
gradual conflicts of State regulations, that the citizens of each would
at length come to be considered and treated by the others in no better
light than that of foreigners and aliens.

The power of raising armies, by the most obvious construction of the
articles of the Confederation, is merely a power of making requisitions
upon the States for quotas of men. This practice in the course of the
late war, was found replete with obstructions to a vigorous and to an
economical system of defense. It gave birth to a competition between
the States which created a kind of auction for men. In order to furnish
the quotas required of them, they outbid each other till bounties grew
to an enormous and insupportable size. The hope of a still further
increase afforded an inducement to those who were disposed to serve to
procrastinate their enlistment, and disinclined them from engaging for
any considerable periods. Hence, slow and scanty levies of men, in the
most critical emergencies of our affairs; short enlistments at an
unparalleled expense; continual fluctuations in the troops, ruinous to
their discipline and subjecting the public safety frequently to the
perilous crisis of a disbanded army. Hence, also, those oppressive
expedients for raising men which were upon several occasions practiced,
and which nothing but the enthusiasm of liberty would have induced the
people to endure.

This method of raising troops is not more unfriendly to economy and
vigor than it is to an equal distribution of the burden. The States
near the seat of war, influenced by motives of self-preservation, made
efforts to furnish their quotas, which even exceeded their abilities;
while those at a distance from danger were, for the most part, as
remiss as the others were diligent, in their exertions. The immediate
pressure of this inequality was not in this case, as in that of the
contributions of money, alleviated by the hope of a final liquidation.
The States which did not pay their proportions of money might at least
be charged with their deficiencies; but no account could be formed of
the deficiencies in the supplies of men. We shall not, however, see
much reason to reget the want of this hope, when we consider how little
prospect there is, that the most delinquent States will ever be able to
make compensation for their pecuniary failures. The system of quotas
and requisitions, whether it be applied to men or money, is, in every
view, a system of imbecility in the Union, and of inequality and
injustice among the members.

The right of equal suffrage among the States is another exceptionable
part of the Confederation. Every idea of proportion and every rule of
fair representation conspire to condemn a principle, which gives to
Rhode Island an equal weight in the scale of power with Massachusetts,
or Connecticut, or New York; and to Deleware an equal voice in the
national deliberations with Pennsylvania, or Virginia, or North
Carolina. Its operation contradicts the fundamental maxim of republican
government, which requires that the sense of the majority should
prevail. Sophistry may reply, that sovereigns are equal, and that a
majority of the votes of the States will be a majority of confederated
America. But this kind of logical legerdemain will never counteract the
plain suggestions of justice and common-sense. It may happen that this
majority of States is a small minority of the people of America;[3] and
two thirds of the people of America could not long be persuaded, upon
the credit of artificial distinctions and syllogistic subtleties, to
submit their interests to the management and disposal of one third. The
larger States would after a while revolt from the idea of receiving the
law from the smaller. To acquiesce in such a privation of their due
importance in the political scale, would be not merely to be insensible
to the love of power, but even to sacrifice the desire of equality. It
is neither rational to expect the first, nor just to require the last.
The smaller States, considering how peculiarly their safety and welfare
depend on union, ought readily to renounce a pretension which, if not
relinquished, would prove fatal to its duration.

It may be objected to this, that not seven but nine States, or two
thirds of the whole number, must consent to the most important
resolutions; and it may be thence inferred that nine States would
always comprehend a majority of the Union. But this does not obviate
the impropriety of an equal vote between States of the most unequal
dimensions and populousness; nor is the inference accurate in point of
fact; for we can enumerate nine States which contain less than a
majority of the people;[4] and it is constitutionally possible that
these nine may give the vote. Besides, there are matters of
considerable moment determinable by a bare majority; and there are
others, concerning which doubts have been entertained, which, if
interpreted in favor of the sufficiency of a vote of seven States,
would extend its operation to interests of the first magnitude. In
addition to this, it is to be observed that there is a probability of
an increase in the number of States, and no provision for a
proportional augmentation of the ratio of votes.

But this is not all: what at first sight may seem a remedy, is, in
reality, a poison. To give a minority a negative upon the majority
(which is always the case where more than a majority is requisite to a
decision), is, in its tendency, to subject the sense of the greater
number to that of the lesser. Congress, from the nonattendance of a few
States, have been frequently in the situation of a Polish diet, where a
single VOTE has been sufficient to put a stop to all their movements. A
sixtieth part of the Union, which is about the proportion of Delaware
and Rhode Island, has several times been able to oppose an entire bar
to its operations. This is one of those refinements which, in practice,
has an effect the reverse of what is expected from it in theory. The
necessity of unanimity in public bodies, or of something approaching
towards it, has been founded upon a supposition that it would
contribute to security. But its real operation is to embarrass the
administration, to destroy the energy of the government, and to
substitute the pleasure, caprice, or artifices of an insignificant,
turbulent, or corrupt junto, to the regular deliberations and decisions
of a respectable majority. In those emergencies of a nation, in which
the goodness or badness, the weakness or strength of its government, is
of the greatest importance, there is commonly a necessity for action.
The public business must, in some way or other, go forward. If a
pertinacious minority can control the opinion of a majority, respecting
the best mode of conducting it, the majority, in order that something
may be done, must conform to the views of the minority; and thus the
sense of the smaller number will overrule that of the greater, and give
a tone to the national proceedings. Hence, tedious delays; continual
negotiation and intrigue; contemptible compromises of the public good.
And yet, in such a system, it is even happy when such compromises can
take place: for upon some occasions things will not admit of
accommodation; and then the measures of government must be injuriously
suspended, or fatally defeated. It is often, by the impracticability of
obtaining the concurrence of the necessary number of votes, kept in a
state of inaction. Its situation must always savor of weakness,
sometimes border upon anarchy.

It is not difficult to discover, that a principle of this kind gives
greater scope to foreign corruption, as well as to domestic faction,
than that which permits the sense of the majority to decide; though the
contrary of this has been presumed. The mistake has proceeded from not
attending with due care to the mischiefs that may be occasioned by
obstructing the progress of government at certain critical seasons.
When the concurrence of a large number is required by the Constitution
to the doing of any national act, we are apt to rest satisfied that all
is safe, because nothing improper will be likely TO BE DONE, but we
forget how much good may be prevented, and how much ill may be
produced, by the power of hindering the doing what may be necessary,
and of keeping affairs in the same unfavorable posture in which they
may happen to stand at particular periods.

Suppose, for instance, we were engaged in a war, in conjunction with
one foreign nation, against another. Suppose the necessity of our
situation demanded peace, and the interest or ambition of our ally led
him to seek the prosecution of the war, with views that might justify
us in making separate terms. In such a state of things, this ally of
ours would evidently find it much easier, by his bribes and intrigues,
to tie up the hands of government from making peace, where two thirds
of all the votes were requisite to that object, than where a simple
majority would suffice. In the first case, he would have to corrupt a
smaller number; in the last, a greater number. Upon the same principle,
it would be much easier for a foreign power with which we were at war
to perplex our councils and embarrass our exertions. And, in a
commercial view, we may be subjected to similar inconveniences. A
nation, with which we might have a treaty of commerce, could with much
greater facility prevent our forming a connection with her competitor
in trade, though such a connection should be ever so beneficial to
ourselves.

Evils of this description ought not to be regarded as imaginary. One of
the weak sides of republics, among their numerous advantages, is that
they afford too easy an inlet to foreign corruption. An hereditary
monarch, though often disposed to sacrifice his subjects to his
ambition, has so great a personal interest in the government and in the
external glory of the nation, that it is not easy for a foreign power
to give him an equivalent for what he would sacrifice by treachery to
the state. The world has accordingly been witness to few examples of
this species of royal prostitution, though there have been abundant
specimens of every other kind.

In republics, persons elevated from the mass of the community, by the
suffrages of their fellow-citizens, to stations of great pre-eminence
and power, may find compensations for betraying their trust, which, to
any but minds animated and guided by superior virtue, may appear to
exceed the proportion of interest they have in the common stock, and to
overbalance the obligations of duty. Hence it is that history furnishes
us with so many mortifying examples of the prevalency of foreign
corruption in republican governments. How much this contributed to the
ruin of the ancient commonwealths has been already delineated. It is
well known that the deputies of the United Provinces have, in various
instances, been purchased by the emissaries of the neighboring
kingdoms. The Earl of Chesterfield (if my memory serves me right), in a
letter to his court, intimates that his success in an important
negotiation must depend on his obtaining a major’s commission for one
of those deputies. And in Sweden the parties were alternately bought by
France and England in so barefaced and notorious a manner that it
excited universal disgust in the nation, and was a principal cause that
the most limited monarch in Europe, in a single day, without tumult,
violence, or opposition, became one of the most absolute and
uncontrolled.

A circumstance which crowns the defects of the Confederation remains
yet to be mentioned, the want of a judiciary power. Laws are a dead
letter without courts to expound and define their true meaning and
operation. The treaties of the United States, to have any force at all,
must be considered as part of the law of the land. Their true import,
as far as respects individuals, must, like all other laws, be
ascertained by judicial determinations. To produce uniformity in these
determinations, they ought to be submitted, in the last resort, to one
SUPREME TRIBUNAL. And this tribunal ought to be instituted under the
same authority which forms the treaties themselves. These ingredients
are both indispensable. If there is in each State a court of final
jurisdiction, there may be as many different final determinations on
the same point as there are courts. There are endless diversities in
the opinions of men. We often see not only different courts but the
judges of the came court differing from each other. To avoid the
confusion which would unavoidably result from the contradictory
decisions of a number of independent judicatories, all nations have
found it necessary to establish one court paramount to the rest,
possessing a general superintendence, and authorized to settle and
declare in the last resort a uniform rule of civil justice.

This is the more necessary where the frame of the government is so
compounded that the laws of the whole are in danger of being
contravened by the laws of the parts. In this case, if the particular
tribunals are invested with a right of ultimate jurisdiction, besides
the contradictions to be expected from difference of opinion, there
will be much to fear from the bias of local views and prejudices, and
from the interference of local regulations. As often as such an
interference was to happen, there would be reason to apprehend that the
provisions of the particular laws might be preferred to those of the
general laws; for nothing is more natural to men in office than to look
with peculiar deference towards that authority to which they owe their
official existence. The treaties of the United States, under the
present Constitution, are liable to the infractions of thirteen
different legislatures, and as many different courts of final
jurisdiction, acting under the authority of those legislatures. The
faith, the reputation, the peace of the whole Union, are thus
continually at the mercy of the prejudices, the passions, and the
interests of every member of which it is composed. Is it possible that
foreign nations can either respect or confide in such a government? Is
it possible that the people of America will longer consent to trust
their honor, their happiness, their safety, on so precarious a
foundation?

In this review of the Confederation, I have confined myself to the
exhibition of its most material defects; passing over those
imperfections in its details by which even a great part of the power
intended to be conferred upon it has been in a great measure rendered
abortive. It must be by this time evident to all men of reflection, who
can divest themselves of the prepossessions of preconceived opinions,
that it is a system so radically vicious and unsound, as to admit not
of amendment but by an entire change in its leading features and
characters.

The organization of Congress is itself utterly improper for the
exercise of those powers which are necessary to be deposited in the
Union. A single assembly may be a proper receptacle of those slender,
or rather fettered, authorities, which have been heretofore delegated
to the federal head; but it would be inconsistent with all the
principles of good government, to intrust it with those additional
powers which, even the moderate and more rational adversaries of the
proposed Constitution admit, ought to reside in the United States. If
that plan should not be adopted, and if the necessity of the Union
should be able to withstand the ambitious aims of those men who may
indulge magnificent schemes of personal aggrandizement from its
dissolution, the probability would be, that we should run into the
project of conferring supplementary powers upon Congress, as they are
now constituted; and either the machine, from the intrinsic feebleness
of its structure, will moulder into pieces, in spite of our ill-judged
efforts to prop it; or, by successive augmentations of its force an
energy, as necessity might prompt, we shall finally accumulate, in a
single body, all the most important prerogatives of sovereignty, and
thus entail upon our posterity one of the most execrable forms of
government that human infatuation ever contrived. Thus, we should
create in reality that very tyranny which the adversaries of the new
Constitution either are, or affect to be, solicitous to avert.

It has not a little contributed to the infirmities of the existing
federal system, that it never had a ratification by the PEOPLE. Resting
on no better foundation than the consent of the several legislatures,
it has been exposed to frequent and intricate questions concerning the
validity of its powers, and has, in some instances, given birth to the
enormous doctrine of a right of legislative repeal. Owing its
ratification to the law of a State, it has been contended that the same
authority might repeal the law by which it was ratified. However gross
a heresy it may be to maintain that a PARTY to a COMPACT has a right to
revoke that COMPACT, the doctrine itself has had respectable advocates.
The possibility of a question of this nature proves the necessity of
laying the foundations of our national government deeper than in the
mere sanction of delegated authority. The fabric of American empire
ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
streams of national power ought to flow immediately from that pure,
original fountain of all legitimate authority.

PUBLIUS.

 [1] This, as nearly as I can recollect, was the sense of his speech on
 introducing the last bill.

 [2] Encyclopedia, article “Empire.”

 [3] New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South
 Carolina, and Maryland are a majority of the whole number of the
 States, but they do not contain one third of the people.

 [4] Add New York and Connecticut to the foregoing seven, and they will
 be less than a majority.




THE FEDERALIST.
No. XXIII.

The Necessity of a Government as Energetic as the One Proposed to the
Preservation of the Union

From the New York Packet.

Tuesday, December 18, 1787.

HAMILTON


To the People of the State of New York:

The necessity of a Constitution, at least equally energetic with the
one proposed, to the preservation of the Union, is the point at the
examination of which we are now arrived.

This inquiry will naturally divide itself into three branches the
objects to be provided for by the federal government, the quantity of
power necessary to the accomplishment of those objects, the persons
upon whom that power ought to operate. Its distribution and
organization will more properly claim our attention under the
succeeding head.

The principal purposes to be answered by union are these the common
defense of the members; the preservation of the public peace as well
against internal convulsions as external attacks; the regulation of
commerce with other nations and between the States; the superintendence
of our intercourse, political and commercial, with foreign countries.

The authorities essential to the common defense are these: to raise
armies; to build and equip fleets; to prescribe rules for the
government of both; to direct their operations; to provide for their
support. These powers ought to exist without limitation, BECAUSE IT IS
IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL
EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH
MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the
safety of nations are infinite, and for this reason no constitutional
shackles can wisely be imposed on the power to which the care of it is
committed. This power ought to be coextensive with all the possible
combinations of such circumstances; and ought to be under the direction
of the same councils which are appointed to preside over the common
defense.

This is one of those truths which, to a correct and unprejudiced mind,
carries its own evidence along with it; and may be obscured, but cannot
be made plainer by argument or reasoning. It rests upon axioms as
simple as they are universal; the MEANS ought to be proportioned to the
END; the persons, from whose agency the attainment of any END is
expected, ought to possess the MEANS by which it is to be attained.

Whether there ought to be a federal government intrusted with the care
of the common defense, is a question in the first instance, open for
discussion; but the moment it is decided in the affirmative, it will
follow, that that government ought to be clothed with all the powers
requisite to complete execution of its trust. And unless it can be
shown that the circumstances which may affect the public safety are
reducible within certain determinate limits; unless the contrary of
this position can be fairly and rationally disputed, it must be
admitted, as a necessary consequence, that there can be no limitation
of that authority which is to provide for the defense and protection of
the community, in any matter essential to its efficacy that is, in any
matter essential to the FORMATION, DIRECTION, or SUPPORT of the
NATIONAL FORCES.

Defective as the present Confederation has been proved to be, this
principle appears to have been fully recognized by the framers of it;
though they have not made proper or adequate provision for its
exercise. Congress have an unlimited discretion to make requisitions of
men and money; to govern the army and navy; to direct their operations.
As their requisitions are made constitutionally binding upon the
States, who are in fact under the most solemn obligations to furnish
the supplies required of them, the intention evidently was that the
United States should command whatever resources were by them judged
requisite to the “common defense and general welfare.” It was presumed
that a sense of their true interests, and a regard to the dictates of
good faith, would be found sufficient pledges for the punctual
performance of the duty of the members to the federal head.

The experiment has, however, demonstrated that this expectation was
ill-founded and illusory; and the observations, made under the last
head, will, I imagine, have sufficed to convince the impartial and
discerning, that there is an absolute necessity for an entire change in
the first principles of the system; that if we are in earnest about
giving the Union energy and duration, we must abandon the vain project
of legislating upon the States in their collective capacities; we must
extend the laws of the federal government to the individual citizens of
America; we must discard the fallacious scheme of quotas and
requisitions, as equally impracticable and unjust. The result from all
this is that the Union ought to be invested with full power to levy
troops; to build and equip fleets; and to raise the revenues which will
be required for the formation and support of an army and navy, in the
customary and ordinary modes practiced in other governments.

If the circumstances of our country are such as to demand a compound
instead of a simple, a confederate instead of a sole, government, the
essential point which will remain to be adjusted will be to
discriminate the OBJECTS, as far as it can be done, which shall
appertain to the different provinces or departments of power; allowing
to each the most ample authority for fulfilling the objects committed
to its charge. Shall the Union be constituted the guardian of the
common safety? Are fleets and armies and revenues necessary to this
purpose? The government of the Union must be empowered to pass all
laws, and to make all regulations which have relation to them. The same
must be the case in respect to commerce, and to every other matter to
which its jurisdiction is permitted to extend. Is the administration of
justice between the citizens of the same State the proper department of
the local governments? These must possess all the authorities which are
connected with this object, and with every other that may be allotted
to their particular cognizance and direction. Not to confer in each
case a degree of power commensurate to the end, would be to violate the
most obvious rules of prudence and propriety, and improvidently to
trust the great interests of the nation to hands which are disabled
from managing them with vigor and success.

Who is likely to make suitable provisions for the public defense, as
that body to which the guardianship of the public safety is confided;
which, as the centre of information, will best understand the extent
and urgency of the dangers that threaten; as the representative of the
WHOLE, will feel itself most deeply interested in the preservation of
every part; which, from the responsibility implied in the duty assigned
to it, will be most sensibly impressed with the necessity of proper
exertions; and which, by the extension of its authority throughout the
States, can alone establish uniformity and concert in the plans and
measures by which the common safety is to be secured? Is there not a
manifest inconsistency in devolving upon the federal government the
care of the general defense, and leaving in the State governments the
EFFECTIVE powers by which it is to be provided for? Is not a want of
co-operation the infallible consequence of such a system? And will not
weakness, disorder, an undue distribution of the burdens and calamities
of war, an unnecessary and intolerable increase of expense, be its
natural and inevitable concomitants? Have we not had unequivocal
experience of its effects in the course of the revolution which we have
just accomplished?

Every view we may take of the subject, as candid inquirers after truth,
will serve to convince us, that it is both unwise and dangerous to deny
the federal government an unconfined authority, as to all those objects
which are intrusted to its management. It will indeed deserve the most
vigilant and careful attention of the people, to see that it be modeled
in such a manner as to admit of its being safely vested with the
requisite powers. If any plan which has been, or may be, offered to our
consideration, should not, upon a dispassionate inspection, be found to
answer this description, it ought to be rejected. A government, the
constitution of which renders it unfit to be trusted with all the
powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would
be an unsafe and improper depositary of the NATIONAL INTERESTS.
Wherever THESE can with propriety be confided, the coincident powers
may safely accompany them. This is the true result of all just
reasoning upon the subject. And the adversaries of the plan promulgated
by the convention ought to have confined themselves to showing, that
the internal structure of the proposed government was such as to render
it unworthy of the confidence of the people. They ought not to have
wandered into inflammatory declamations and unmeaning cavils about the
extent of the powers. The POWERS are not too extensive for the OBJECTS
of federal administration, or, in other words, for the management of
our NATIONAL INTERESTS; nor can any satisfactory argument be framed to
show that they are chargeable with such an excess. If it be true, as
has been insinuated by some of the writers on the other side, that the
difficulty arises from the nature of the thing, and that the extent of
the country will not permit us to form a government in which such ample
powers can safely be reposed, it would prove that we ought to contract
our views, and resort to the expedient of separate confederacies, which
will move within more practicable spheres. For the absurdity must
continually stare us in the face of confiding to a government the
direction of the most essential national interests, without daring to
trust it to the authorities which are indispensible to their proper and
efficient management. Let us not attempt to reconcile contradictions,
but firmly embrace a rational alternative.

I trust, however, that the impracticability of one general system
cannot be shown. I am greatly mistaken, if any thing of weight has yet
been advanced of this tendency; and I flatter myself, that the
observations which have been made in the course of these papers have
served to place the reverse of that position in as clear a light as any
matter still in the womb of time and experience can be susceptible of.
This, at all events, must be evident, that the very difficulty itself,
drawn from the extent of the country, is the strongest argument in
favor of an energetic government; for any other can certainly never
preserve the Union of so large an empire. If we embrace the tenets of
those who oppose the adoption of the proposed Constitution, as the
standard of our political creed, we cannot fail to verify the gloomy
doctrines which predict the impracticability of a national system
pervading entire limits of the present Confederacy.

PUBLIUS.




THE FEDERALIST.
No. XXIV.

The Powers Necessary to the Common Defense Further Considered

For the Independent Journal.

HAMILTON


To the People of the State of New York:

To the powers proposed to be conferred upon the federal government, in
respect to the creation and direction of the national forces, I have
met with but one specific objection, which, if I understand it right,
is this, that proper provision has not been made against the existence
of standing armies in time of peace; an objection which, I shall now
endeavor to show, rests on weak and unsubstantial foundations.

It has indeed been brought forward in the most vague and general form,
supported only by bold assertions, without the appearance of argument;
without even the sanction of theoretical opinions; in contradiction to
the practice of other free nations, and to the general sense of
America, as expressed in most of the existing constitutions. The
proprietory of this remark will appear, the moment it is recollected
that the objection under consideration turns upon a supposed necessity
of restraining the LEGISLATIVE authority of the nation, in the article
of military establishments; a principle unheard of, except in one or
two of our State constitutions, and rejected in all the rest.

A stranger to our politics, who was to read our newspapers at the
present juncture, without having previously inspected the plan reported
by the convention, would be naturally led to one of two conclusions:
either that it contained a positive injunction, that standing armies
should be kept up in time of peace; or that it vested in the EXECUTIVE
the whole power of levying troops, without subjecting his discretion,
in any shape, to the control of the legislature.

If he came afterwards to peruse the plan itself, he would be surprised
to discover, that neither the one nor the other was the case; that the
whole power of raising armies was lodged in the LEGISLATURE, not in the
EXECUTIVE; that this legislature was to be a popular body, consisting
of the representatives of the people periodically elected; and that
instead of the provision he had supposed in favor of standing armies,
there was to be found, in respect to this object, an important
qualification even of the legislative discretion, in that clause which
forbids the appropriation of money for the support of an army for any
longer period than two years a precaution which, upon a nearer view of
it, will appear to be a great and real security against the keeping up
of troops without evident necessity.

Disappointed in his first surmise, the person I have supposed would be
apt to pursue his conjectures a little further. He would naturally say
to himself, it is impossible that all this vehement and pathetic
declamation can be without some colorable pretext. It must needs be
that this people, so jealous of their liberties, have, in all the
preceding models of the constitutions which they have established,
inserted the most precise and rigid precautions on this point, the
omission of which, in the new plan, has given birth to all this
apprehension and clamor.

If, under this impression, he proceeded to pass in review the several
State constitutions, how great would be his disappointment to find that
TWO only of them[1] contained an interdiction of standing armies in
time of peace; that the other eleven had either observed a profound
silence on the subject, or had in express terms admitted the right of
the Legislature to authorize their existence.

Still, however he would be persuaded that there must be some plausible
foundation for the cry raised on this head. He would never be able to
imagine, while any source of information remained unexplored, that it
was nothing more than an experiment upon the public credulity, dictated
either by a deliberate intention to deceive, or by the overflowings of
a zeal too intemperate to be ingenuous. It would probably occur to him,
that he would be likely to find the precautions he was in search of in
the primitive compact between the States. Here, at length, he would
expect to meet with a solution of the enigma. No doubt, he would
observe to himself, the existing Confederation must contain the most
explicit provisions against military establishments in time of peace;
and a departure from this model, in a favorite point, has occasioned
the discontent which appears to influence these political champions.

If he should now apply himself to a careful and critical survey of the
articles of Confederation, his astonishment would not only be
increased, but would acquire a mixture of indignation, at the
unexpected discovery, that these articles, instead of containing the
prohibition he looked for, and though they had, with jealous
circumspection, restricted the authority of the State legislatures in
this particular, had not imposed a single restraint on that of the
United States. If he happened to be a man of quick sensibility, or
ardent temper, he could now no longer refrain from regarding these
clamors as the dishonest artifices of a sinister and unprincipled
opposition to a plan which ought at least to receive a fair and candid
examination from all sincere lovers of their country! How else, he
would say, could the authors of them have been tempted to vent such
loud censures upon that plan, about a point in which it seems to have
conformed itself to the general sense of America as declared in its
different forms of government, and in which it has even superadded a
new and powerful guard unknown to any of them? If, on the contrary, he
happened to be a man of calm and dispassionate feelings, he would
indulge a sigh for the frailty of human nature, and would lament, that
in a matter so interesting to the happiness of millions, the true
merits of the question should be perplexed and entangled by expedients
so unfriendly to an impartial and right determination. Even such a man
could hardly forbear remarking, that a conduct of this kind has too
much the appearance of an intention to mislead the people by alarming
their passions, rather than to convince them by arguments addressed to
their understandings.

But however little this objection may be countenanced, even by
precedents among ourselves, it may be satisfactory to take a nearer
view of its intrinsic merits. From a close examination it will appear
that restraints upon the discretion of the legislature in respect to
military establishments in time of peace, would be improper to be
imposed, and if imposed, from the necessities of society, would be
unlikely to be observed.

Though a wide ocean separates the United States from Europe, yet there
are various considerations that warn us against an excess of confidence
or security. On one side of us, and stretching far into our rear, are
growing settlements subject to the dominion of Britain. On the other
side, and extending to meet the British settlements, are colonies and
establishments subject to the dominion of Spain. This situation and the
vicinity of the West India Islands, belonging to these two powers
create between them, in respect to their American possessions and in
relation to us, a common interest. The savage tribes on our Western
frontier ought to be regarded as our natural enemies, their natural
allies, because they have most to fear from us, and most to hope from
them. The improvements in the art of navigation have, as to the
facility of communication, rendered distant nations, in a great
measure, neighbors. Britain and Spain are among the principal maritime
powers of Europe. A future concert of views between these nations ought
not to be regarded as improbable. The increasing remoteness of
consanguinity is every day diminishing the force of the family compact
between France and Spain. And politicians have ever with great reason
considered the ties of blood as feeble and precarious links of
political connection. These circumstances combined, admonish us not to
be too sanguine in considering ourselves as entirely out of the reach
of danger.

Previous to the Revolution, and ever since the peace, there has been a
constant necessity for keeping small garrisons on our Western frontier.
No person can doubt that these will continue to be indispensable, if it
should only be against the ravages and depredations of the Indians.
These garrisons must either be furnished by occasional detachments from
the militia, or by permanent corps in the pay of the government. The
first is impracticable; and if practicable, would be pernicious. The
militia would not long, if at all, submit to be dragged from their
occupations and families to perform that most disagreeable duty in
times of profound peace. And if they could be prevailed upon or
compelled to do it, the increased expense of a frequent rotation of
service, and the loss of labor and disconcertion of the industrious
pursuits of individuals, would form conclusive objections to the
scheme. It would be as burdensome and injurious to the public as
ruinous to private citizens. The latter resource of permanent corps in
the pay of the government amounts to a standing army in time of peace;
a small one, indeed, but not the less real for being small. Here is a
simple view of the subject, that shows us at once the impropriety of a
constitutional interdiction of such establishments, and the necessity
of leaving the matter to the discretion and prudence of the
legislature.

In proportion to our increase in strength, it is probable, nay, it may
be said certain, that Britain and Spain would augment their military
establishments in our neighborhood. If we should not be willing to be
exposed, in a naked and defenseless condition, to their insults and
encroachments, we should find it expedient to increase our frontier
garrisons in some ratio to the force by which our Western settlements
might be annoyed. There are, and will be, particular posts, the
possession of which will include the command of large districts of
territory, and facilitate future invasions of the remainder. It may be
added that some of those posts will be keys to the trade with the
Indian nations. Can any man think it would be wise to leave such posts
in a situation to be at any instant seized by one or the other of two
neighboring and formidable powers? To act this part would be to desert
all the usual maxims of prudence and policy.

If we mean to be a commercial people, or even to be secure on our
Atlantic side, we must endeavor, as soon as possible, to have a navy.
To this purpose there must be dock-yards and arsenals; and for the
defense of these, fortifications, and probably garrisons. When a nation
has become so powerful by sea that it can protect its dock-yards by its
fleets, this supersedes the necessity of garrisons for that purpose;
but where naval establishments are in their infancy, moderate garrisons
will, in all likelihood, be found an indispensable security against
descents for the destruction of the arsenals and dock-yards, and
sometimes of the fleet itself.

PUBLIUS.

 [1] This statement of the matter is taken from the printed collection
 of State constitutions. Pennsylvania and North Carolina are the two
 which contain the interdiction in these words: “As standing armies in
 time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.”
 This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire,
 Massachusetts, Delaware, and Maryland have, in each of their bils of
 rights, a clause to this effect: “Standing armies are dangerous to
 liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF
 THE LEGISLATURE”; which is a formal admission of the authority of the
 Legislature. New York has no bills of rights, and her constitution
 says not a word about the matter. No bills of rights appear annexed to
 the constitutions of the other States, except the foregoing, and their
 constitutions are equally silent. I am told, however that one or two
 States have bills of rights which do not appear in this collection;
 but that those also recognize the right of the legislative authority
 in this respect.




THE FEDERALIST.
No. XXV.

The Same Subject Continued

(The Powers Necessary to the Common Defense Further Considered)

From the New York Packet.

Friday, December 21, 1787.

HAMILTON


To the People of the State of New York:

It may perhaps be urged that the objects enumerated in the preceding
number ought to be provided for by the State governments, under the
direction of the Union. But this would be, in reality, an inversion of
the primary principle of our political association, as it would in
practice transfer the care of the common defense from the federal head
to the individual members: a project oppressive to some States,
dangerous to all, and baneful to the Confederacy.

The territories of Britain, Spain, and of the Indian nations in our
neighborhood do not border on particular States, but encircle the Union
from Maine to Georgia. The danger, though in different degrees, is
therefore common. And the means of guarding against it ought, in like
manner, to be the objects of common councils and of a common treasury.
It happens that some States, from local situation, are more directly
exposed. New York is of this class. Upon the plan of separate
provisions, New York would have to sustain the whole weight of the
establishments requisite to her immediate safety, and to the mediate or
ultimate protection of her neighbors. This would neither be equitable
as it respected New York nor safe as it respected the other States.
Various inconveniences would attend such a system. The States, to whose
lot it might fall to support the necessary establishments, would be as
little able as willing, for a considerable time to come, to bear the
burden of competent provisions. The security of all would thus be
subjected to the parsimony, improvidence, or inability of a part. If
the resources of such part becoming more abundant and extensive, its
provisions should be proportionally enlarged, the other States would
quickly take the alarm at seeing the whole military force of the Union
in the hands of two or three of its members, and those probably amongst
the most powerful. They would each choose to have some counterpoise,
and pretenses could easily be contrived. In this situation, military
establishments, nourished by mutual jealousy, would be apt to swell
beyond their natural or proper size; and being at the separate disposal
of the members, they would be engines for the abridgment or demolition
of the national authority.

Reasons have been already given to induce a supposition that the State
governments will too naturally be prone to a rivalship with that of the
Union, the foundation of which will be the love of power; and that in
any contest between the federal head and one of its members the people
will be most apt to unite with their local government. If, in addition
to this immense advantage, the ambition of the members should be
stimulated by the separate and independent possession of military
forces, it would afford too strong a temptation and too great a
facility to them to make enterprises upon, and finally to subvert, the
constitutional authority of the Union. On the other hand, the liberty
of the people would be less safe in this state of things than in that
which left the national forces in the hands of the national government.
As far as an army may be considered as a dangerous weapon of power, it
had better be in those hands of which the people are most likely to be
jealous than in those of which they are least likely to be jealous. For
it is a truth, which the experience of ages has attested, that the
people are always most in danger when the means of injuring their
rights are in the possession of those of whom they entertain the least
suspicion.

The framers of the existing Confederation, fully aware of the danger to
the Union from the separate possession of military forces by the
States, have, in express terms, prohibited them from having either
ships or troops, unless with the consent of Congress. The truth is,
that the existence of a federal government and military establishments
under State authority are not less at variance with each other than a
due supply of the federal treasury and the system of quotas and
requisitions.

There are other lights besides those already taken notice of, in which
the impropriety of restraints on the discretion of the national
legislature will be equally manifest. The design of the objection,
which has been mentioned, is to preclude standing armies in time of
peace, though we have never been informed how far it is designed the
prohibition should extend; whether to raising armies as well as to
KEEPING THEM UP in a season of tranquillity or not. If it be confined
to the latter it will have no precise signification, and it will be
ineffectual for the purpose intended. When armies are once raised what
shall be denominated “keeping them up,” contrary to the sense of the
Constitution? What time shall be requisite to ascertain the violation?
Shall it be a week, a month, a year? Or shall we say they may be
continued as long as the danger which occasioned their being raised
continues? This would be to admit that they might be kept up IN TIME OF
PEACE, against threatening or impending danger, which would be at once
to deviate from the literal meaning of the prohibition, and to
introduce an extensive latitude of construction. Who shall judge of the
continuance of the danger? This must undoubtedly be submitted to the
national government, and the matter would then be brought to this
issue, that the national government, to provide against apprehended
danger, might in the first instance raise troops, and might afterwards
keep them on foot as long as they supposed the peace or safety of the
community was in any degree of jeopardy. It is easy to perceive that a
discretion so latitudinary as this would afford ample room for eluding
the force of the provision.

The supposed utility of a provision of this kind can only be founded on
the supposed probability, or at least possibility, of a combination
between the executive and the legislative, in some scheme of
usurpation. Should this at any time happen, how easy would it be to
fabricate pretenses of approaching danger! Indian hostilities,
instigated by Spain or Britain, would always be at hand. Provocations
to produce the desired appearances might even be given to some foreign
power, and appeased again by timely concessions. If we can reasonably
presume such a combination to have been formed, and that the enterprise
is warranted by a sufficient prospect of success, the army, when once
raised, from whatever cause, or on whatever pretext, may be applied to
the execution of the project.

If, to obviate this consequence, it should be resolved to extend the
prohibition to the RAISING of armies in time of peace, the United
States would then exhibit the most extraordinary spectacle which the
world has yet seen, that of a nation incapacitated by its Constitution
to prepare for defense, before it was actually invaded. As the ceremony
of a formal denunciation of war has of late fallen into disuse, the
presence of an enemy within our territories must be waited for, as the
legal warrant to the government to begin its levies of men for the
protection of the State. We must receive the blow, before we could even
prepare to return it. All that kind of policy by which nations
anticipate distant danger, and meet the gathering storm, must be
abstained from, as contrary to the genuine maxims of a free government.
We must expose our property and liberty to the mercy of foreign
invaders, and invite them by our weakness to seize the naked and
defenseless prey, because we are afraid that rulers, created by our
choice, dependent on our will, might endanger that liberty, by an abuse
of the means necessary to its preservation.

Here I expect we shall be told that the militia of the country is its
natural bulwark, and would be at all times equal to the national
defense. This doctrine, in substance, had like to have lost us our
independence. It cost millions to the United States that might have
been saved. The facts which, from our own experience, forbid a reliance
of this kind, are too recent to permit us to be the dupes of such a
suggestion. The steady operations of war against a regular and
disciplined army can only be successfully conducted by a force of the
same kind. Considerations of economy, not less than of stability and
vigor, confirm this position. The American militia, in the course of
the late war, have, by their valor on numerous occasions, erected
eternal monuments to their fame; but the bravest of them feel and know
that the liberty of their country could not have been established by
their efforts alone, however great and valuable they were. War, like
most other things, is a science to be acquired and perfected by
diligence, by perserverance, by time, and by practice.

All violent policy, as it is contrary to the natural and experienced
course of human affairs, defeats itself. Pennsylvania, at this instant,
affords an example of the truth of this remark. The Bill of Rights of
that State declares that standing armies are dangerous to liberty, and
ought not to be kept up in time of peace. Pennsylvania, nevertheless,
in a time of profound peace, from the existence of partial disorders in
one or two of her counties, has resolved to raise a body of troops; and
in all probability will keep them up as long as there is any appearance
of danger to the public peace. The conduct of Massachusetts affords a
lesson on the same subject, though on different ground. That State
(without waiting for the sanction of Congress, as the articles of the
Confederation require) was compelled to raise troops to quell a
domestic insurrection, and still keeps a corps in pay to prevent a
revival of the spirit of revolt. The particular constitution of
Massachusetts opposed no obstacle to the measure; but the instance is
still of use to instruct us that cases are likely to occur under our
government, as well as under those of other nations, which will
sometimes render a military force in time of peace essential to the
security of the society, and that it is therefore improper in this
respect to control the legislative discretion. It also teaches us, in
its application to the United States, how little the rights of a feeble
government are likely to be respected, even by its own constituents.
And it teaches us, in addition to the rest, how unequal parchment
provisions are to a struggle with public necessity.

It was a fundamental maxim of the Lacedaemonian commonwealth, that the
post of admiral should not be conferred twice on the same person. The
Peloponnesian confederates, having suffered a severe defeat at sea from
the Athenians, demanded Lysander, who had before served with success in
that capacity, to command the combined fleets. The Lacedaemonians, to
gratify their allies, and yet preserve the semblance of an adherence to
their ancient institutions, had recourse to the flimsy subterfuge of
investing Lysander with the real power of admiral, under the nominal
title of vice-admiral. This instance is selected from among a multitude
that might be cited to confirm the truth already advanced and
illustrated by domestic examples; which is, that nations pay little
regard to rules and maxims calculated in their very nature to run
counter to the necessities of society. Wise politicians will be
cautious about fettering the government with restrictions that cannot
be observed, because they know that every breach of the fundamental
laws, though dictated by necessity, impairs that sacred reverence which
ought to be maintained in the breast of rulers towards the constitution
of a country, and forms a precedent for other breaches where the same
plea of necessity does not exist at all, or is less urgent and
palpable.

PUBLIUS.




THE FEDERALIST.
No. XXVI.

The Idea of Restraining the Legislative Authority in Regard to the
Common Defense Considered

For the Independent Journal.

HAMILTON


To the People of the State of New York:

It was a thing hardly to be expected that in a popular revolution the
minds of men should stop at that happy mean which marks the salutary
boundary between POWER and PRIVILEGE, and combines the energy of
government with the security of private rights. A failure in this
delicate and important point is the great source of the inconveniences
we experience, and if we are not cautious to avoid a repetition of the
error, in our future attempts to rectify and ameliorate our system, we
may travel from one chimerical project to another; we may try change
after change; but we shall never be likely to make any material change
for the better.

The idea of restraining the legislative authority, in the means of
providing for the national defense, is one of those refinements which
owe their origin to a zeal for liberty more ardent than enlightened. We
have seen, however, that it has not had thus far an extensive
prevalency; that even in this country, where it made its first
appearance, Pennsylvania and North Carolina are the only two States by
which it has been in any degree patronized; and that all the others
have refused to give it the least countenance; wisely judging that
confidence must be placed somewhere; that the necessity of doing it, is
implied in the very act of delegating power; and that it is better to
hazard the abuse of that confidence than to embarrass the government
and endanger the public safety by impolitic restrictions on the
legislative authority. The opponents of the proposed Constitution
combat, in this respect, the general decision of America; and instead
of being taught by experience the propriety of correcting any extremes
into which we may have heretofore run, they appear disposed to conduct
us into others still more dangerous, and more extravagant. As if the
tone of government had been found too high, or too rigid, the doctrines
they teach are calculated to induce us to depress or to relax it, by
expedients which, upon other occasions, have been condemned or
forborne. It may be affirmed without the imputation of invective, that
if the principles they inculcate, on various points, could so far
obtain as to become the popular creed, they would utterly unfit the
people of this country for any species of government whatever. But a
danger of this kind is not to be apprehended. The citizens of America
have too much discernment to be argued into anarchy. And I am much
mistaken, if experience has not wrought a deep and solemn conviction in
the public mind, that greater energy of government is essential to the
welfare and prosperity of the community.

It may not be amiss in this place concisely to remark the origin and
progress of the idea, which aims at the exclusion of military
establishments in time of peace. Though in speculative minds it may
arise from a contemplation of the nature and tendency of such
institutions, fortified by the events that have happened in other ages
and countries, yet as a national sentiment, it must be traced to those
habits of thinking which we derive from the nation from whom the
inhabitants of these States have in general sprung.

In England, for a long time after the Norman Conquest, the authority of
the monarch was almost unlimited. Inroads were gradually made upon the
prerogative, in favor of liberty, first by the barons, and afterwards
by the people, till the greatest part of its most formidable
pretensions became extinct. But it was not till the revolution in 1688,
which elevated the Prince of Orange to the throne of Great Britain,
that English liberty was completely triumphant. As incident to the
undefined power of making war, an acknowledged prerogative of the
crown, Charles II. had, by his own authority, kept on foot in time of
peace a body of 5,000 regular troops. And this number James II.
increased to 30,000; who were paid out of his civil list. At the
revolution, to abolish the exercise of so dangerous an authority, it
became an article of the Bill of Rights then framed, that “the raising
or keeping a standing army within the kingdom in time of peace, UNLESS
WITH THE CONSENT OF PARLIAMENT, was against law.”

In that kingdom, when the pulse of liberty was at its highest pitch, no
security against the danger of standing armies was thought requisite,
beyond a prohibition of their being raised or kept up by the mere
authority of the executive magistrate. The patriots, who effected that
memorable revolution, were too temperate, too wellinformed, to think of
any restraint on the legislative discretion. They were aware that a
certain number of troops for guards and garrisons were indispensable;
that no precise bounds could be set to the national exigencies; that a
power equal to every possible contingency must exist somewhere in the
government: and that when they referred the exercise of that power to
the judgment of the legislature, they had arrived at the ultimate point
of precaution which was reconcilable with the safety of the community.

From the same source, the people of America may be said to have derived
an hereditary impression of danger to liberty, from standing armies in
time of peace. The circumstances of a revolution quickened the public
sensibility on every point connected with the security of popular
rights, and in some instances raise the warmth of our zeal beyond the
degree which consisted with the due temperature of the body politic.
The attempts of two of the States to restrict the authority of the
legislature in the article of military establishments, are of the
number of these instances. The principles which had taught us to be
jealous of the power of an hereditary monarch were by an injudicious
excess extended to the representatives of the people in their popular
assemblies. Even in some of the States, where this error was not
adopted, we find unnecessary declarations that standing armies ought
not to be kept up, in time of peace, WITHOUT THE CONSENT OF THE
LEGISLATURE. I call them unnecessary, because the reason which had
introduced a similar provision into the English Bill of Rights is not
applicable to any of the State constitutions. The power of raising
armies at all, under those constitutions, can by no construction be
deemed to reside anywhere else, than in the legislatures themselves;
and it was superfluous, if not absurd, to declare that a matter should
not be done without the consent of a body, which alone had the power of
doing it. Accordingly, in some of these constitutions, and among
others, in that of this State of New York, which has been justly
celebrated, both in Europe and America, as one of the best of the forms
of government established in this country, there is a total silence
upon the subject.

It is remarkable, that even in the two States which seem to have
meditated an interdiction of military establishments in time of peace,
the mode of expression made use of is rather cautionary than
prohibitory. It is not said, that standing armies SHALL NOT BE kept up,
but that they OUGHT NOT to be kept up, in time of peace. This ambiguity
of terms appears to have been the result of a conflict between jealousy
and conviction; between the desire of excluding such establishments at
all events, and the persuasion that an absolute exclusion would be
unwise and unsafe.

Can it be doubted that such a provision, whenever the situation of
public affairs was understood to require a departure from it, would be
interpreted by the legislature into a mere admonition, and would be
made to yield to the necessities or supposed necessities of the State?
Let the fact already mentioned, with respect to Pennsylvania, decide.
What then (it may be asked) is the use of such a provision, if it cease
to operate the moment there is an inclination to disregard it?

Let us examine whether there be any comparison, in point of efficacy,
between the provision alluded to and that which is contained in the new
Constitution, for restraining the appropriations of money for military
purposes to the period of two years. The former, by aiming at too much,
is calculated to effect nothing; the latter, by steering clear of an
imprudent extreme, and by being perfectly compatible with a proper
provision for the exigencies of the nation, will have a salutary and
powerful operation.

The legislature of the United States will be OBLIGED, by this
provision, once at least in every two years, to deliberate upon the
propriety of keeping a military force on foot; to come to a new
resolution on the point; and to declare their sense of the matter, by a
formal vote in the face of their constituents. They are not AT LIBERTY
to vest in the executive department permanent funds for the support of
an army, if they were even incautious enough to be willing to repose in
it so improper a confidence. As the spirit of party, in different
degrees, must be expected to infect all political bodies, there will
be, no doubt, persons in the national legislature willing enough to
arraign the measures and criminate the views of the majority. The
provision for the support of a military force will always be a
favorable topic for declamation. As often as the question comes
forward, the public attention will be roused and attracted to the
subject, by the party in opposition; and if the majority should be
really disposed to exceed the proper limits, the community will be
warned of the danger, and will have an opportunity of taking measures
to guard against it. Independent of parties in the national legislature
itself, as often as the period of discussion arrived, the State
legislatures, who will always be not only vigilant but suspicious and
jealous guardians of the rights of the citizens against encroachments
from the federal government, will constantly have their attention awake
to the conduct of the national rulers, and will be ready enough, if any
thing improper appears, to sound the alarm to the people, and not only
to be the VOICE, but, if necessary, the ARM of their discontent.

Schemes to subvert the liberties of a great community REQUIRE TIME to
mature them for execution. An army, so large as seriously to menace
those liberties, could only be formed by progressive augmentations;
which would suppose, not merely a temporary combination between the
legislature and executive, but a continued conspiracy for a series of
time. Is it probable that such a combination would exist at all? Is it
probable that it would be persevered in, and transmitted along through
all the successive variations in a representative body, which biennial
elections would naturally produce in both houses? Is it presumable,
that every man, the instant he took his seat in the national Senate or
House of Representatives, would commence a traitor to his constituents
and to his country? Can it be supposed that there would not be found
one man, discerning enough to detect so atrocious a conspiracy, or bold
or honest enough to apprise his constituents of their danger? If such
presumptions can fairly be made, there ought at once to be an end of
all delegated authority. The people should resolve to recall all the
powers they have heretofore parted with out of their own hands, and to
divide themselves into as many States as there are counties, in order
that they may be able to manage their own concerns in person.

If such suppositions could even be reasonably made, still the
concealment of the design, for any duration, would be impracticable. It
would be announced, by the very circumstance of augmenting the army to
so great an extent in time of profound peace. What colorable reason
could be assigned, in a country so situated, for such vast
augmentations of the military force? It is impossible that the people
could be long deceived; and the destruction of the project, and of the
projectors, would quickly follow the discovery.

It has been said that the provision which limits the appropriation of
money for the support of an army to the period of two years would be
unavailing, because the Executive, when once possessed of a force large
enough to awe the people into submission, would find resources in that
very force sufficient to enable him to dispense with supplies from the
acts of the legislature. But the question again recurs, upon what
pretense could he be put in possession of a force of that magnitude in
time of peace? If we suppose it to have been created in consequence of
some domestic insurrection or foreign war, then it becomes a case not
within the principles of the objection; for this is levelled against
the power of keeping up troops in time of peace. Few persons will be so
visionary as seriously to contend that military forces ought not to be
raised to quell a rebellion or resist an invasion; and if the defense
of the community under such circumstances should make it necessary to
have an army so numerous as to hazard its liberty, this is one of those
calamaties for which there is neither preventative nor cure. It cannot
be provided against by any possible form of government; it might even
result from a simple league offensive and defensive, if it should ever
be necessary for the confederates or allies to form an army for common
defense.

But it is an evil infinitely less likely to attend us in a united than
in a disunited state; nay, it may be safely asserted that it is an evil
altogether unlikely to attend us in the latter situation. It is not
easy to conceive a possibility that dangers so formidable can assail
the whole Union, as to demand a force considerable enough to place our
liberties in the least jeopardy, especially if we take into our view
the aid to be derived from the militia, which ought always to be
counted upon as a valuable and powerful auxiliary. But in a state of
disunion (as has been fully shown in another place), the contrary of
this supposition would become not only probable, but almost
unavoidable.

PUBLIUS.




THE FEDERALIST.
No. XXVII.

The Same Subject Continued

(The Idea of Restraining the Legislative Authority in Regard to the
Common Defense Considered)

From the New York Packet.

Tuesday, December 25, 1787.

HAMILTON


To the People of the State of New York:

It has been urged, in different shapes, that a Constitution of the kind
proposed by the convention cannot operate without the aid of a military
force to execute its laws. This, however, like most other things that
have been alleged on that side, rests on mere general assertion,
unsupported by any precise or intelligible designation of the reasons
upon which it is founded. As far as I have been able to divine the
latent meaning of the objectors, it seems to originate in a
presupposition that the people will be disinclined to the exercise of
federal authority in any matter of an internal nature. Waiving any
exception that might be taken to the inaccuracy or inexplicitness of
the distinction between internal and external, let us inquire what
ground there is to presuppose that disinclination in the people. Unless
we presume at the same time that the powers of the general government
will be worse administered than those of the State government, there
seems to be no room for the presumption of ill-will, disaffection, or
opposition in the people. I believe it may be laid down as a general
rule that their confidence in and obedience to a government will
commonly be proportioned to the goodness or badness of its
administration. It must be admitted that there are exceptions to this
rule; but these exceptions depend so entirely on accidental causes,
that they cannot be considered as having any relation to the intrinsic
merits or demerits of a constitution. These can only be judged of by
general principles and maxims.

Various reasons have been suggested, in the course of these papers, to
induce a probability that the general government will be better
administered than the particular governments; the principal of which
reasons are that the extension of the spheres of election will present
a greater option, or latitude of choice, to the people; that through
the medium of the State legislatures which are select bodies of men,
and which are to appoint the members of the national Senate there is
reason to expect that this branch will generally be composed with
peculiar care and judgment; that these circumstances promise greater
knowledge and more extensive information in the national councils, and
that they will be less apt to be tainted by the spirit of faction, and
more out of the reach of those occasional ill-humors, or temporary
prejudices and propensities, which, in smaller societies, frequently
contaminate the public councils, beget injustice and oppression of a
part of the community, and engender schemes which, though they gratify
a momentary inclination or desire, terminate in general distress,
dissatisfaction, and disgust. Several additional reasons of
considerable force, to fortify that probability, will occur when we
come to survey, with a more critical eye, the interior structure of the
edifice which we are invited to erect. It will be sufficient here to
remark, that until satisfactory reasons can be assigned to justify an
opinion, that the federal government is likely to be administered in
such a manner as to render it odious or contemptible to the people,
there can be no reasonable foundation for the supposition that the laws
of the Union will meet with any greater obstruction from them, or will
stand in need of any other methods to enforce their execution, than the
laws of the particular members.

The hope of impunity is a strong incitement to sedition; the dread of
punishment, a proportionably strong discouragement to it. Will not the
government of the Union, which, if possessed of a due degree of power,
can call to its aid the collective resources of the whole Confederacy,
be more likely to repress the FORMER sentiment and to inspire the
LATTER, than that of a single State, which can only command the
resources within itself? A turbulent faction in a State may easily
suppose itself able to contend with the friends to the government in
that State; but it can hardly be so infatuated as to imagine itself a
match for the combined efforts of the Union. If this reflection be
just, there is less danger of resistance from irregular combinations of
individuals to the authority of the Confederacy than to that of a
single member.

I will, in this place, hazard an observation, which will not be the
less just because to some it may appear new; which is, that the more
the operations of the national authority are intermingled in the
ordinary exercise of government, the more the citizens are accustomed
to meet with it in the common occurrences of their political life, the
more it is familiarized to their sight and to their feelings, the
further it enters into those objects which touch the most sensible
chords and put in motion the most active springs of the human heart,
the greater will be the probability that it will conciliate the respect
and attachment of the community. Man is very much a creature of habit.
A thing that rarely strikes his senses will generally have but little
influence upon his mind. A government continually at a distance and out
of sight can hardly be expected to interest the sensations of the
people. The inference is, that the authority of the Union, and the
affections of the citizens towards it, will be strengthened, rather
than weakened, by its extension to what are called matters of internal
concern; and will have less occasion to recur to force, in proportion
to the familiarity and comprehensiveness of its agency. The more it
circulates through those channels and currents in which the passions of
mankind naturally flow, the less will it require the aid of the violent
and perilous expedients of compulsion.

One thing, at all events, must be evident, that a government like the
one proposed would bid much fairer to avoid the necessity of using
force, than that species of league contend for by most of its
opponents; the authority of which should only operate upon the States
in their political or collective capacities. It has been shown that in
such a Confederacy there can be no sanction for the laws but force;
that frequent delinquencies in the members are the natural offspring of
the very frame of the government; and that as often as these happen,
they can only be redressed, if at all, by war and violence.

The plan reported by the convention, by extending the authority of the
federal head to the individual citizens of the several States, will
enable the government to employ the ordinary magistracy of each, in the
execution of its laws. It is easy to perceive that this will tend to
destroy, in the common apprehension, all distinction between the
sources from which they might proceed; and will give the federal
government the same advantage for securing a due obedience to its
authority which is enjoyed by the government of each State, in addition
to the influence on public opinion which will result from the important
consideration of its having power to call to its assistance and support
the resources of the whole Union. It merits particular attention in
this place, that the laws of the Confederacy, as to the ENUMERATED and
LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of
the land; to the observance of which all officers, legislative,
executive, and judicial, in each State, will be bound by the sanctity
of an oath. Thus the legislatures, courts, and magistrates, of the
respective members, will be incorporated into the operations of the
national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY
EXTENDS; and will be rendered auxiliary to the enforcement of its
laws.[1] Any man who will pursue, by his own reflections, the
consequences of this situation, will perceive that there is good ground
to calculate upon a regular and peaceable execution of the laws of the
Union, if its powers are administered with a common share of prudence.
If we will arbitrarily suppose the contrary, we may deduce any
inferences we please from the supposition; for it is certainly
possible, by an injudicious exercise of the authorities of the best
government that ever was, or ever can be instituted, to provoke and
precipitate the people into the wildest excesses. But though the
adversaries of the proposed Constitution should presume that the
national rulers would be insensible to the motives of public good, or
to the obligations of duty, I would still ask them how the interests of
ambition, or the views of encroachment, can be promoted by such a
conduct?

PUBLIUS.

 [1] The sophistry which has been employed to show that this will tend
 to the destruction of the State governments, will, in its will, in its
 proper place, be fully detected.




THE FEDERALIST.
No. XXVIII.

The Same Subject Continued

(The Idea of Restraining the Legislative Authority in Regard to the
Common Defense Considered)

For the Independent Journal.

HAMILTON


To the People of the State of New York:

That there may happen cases in which the national government may be
necessitated to resort to force, cannot be denied. Our own experience
has corroborated the lessons taught by the examples of other nations;
that emergencies of this sort will sometimes arise in all societies,
however constituted; that seditions and insurrections are, unhappily,
maladies as inseparable from the body politic as tumors and eruptions
from the natural body; that the idea of governing at all times by the
simple force of law (which we have been told is the only admissible
principle of republican government), has no place but in the reveries
of those political doctors whose sagacity disdains the admonitions of
experimental instruction.

Should such emergencies at any time happen under the national
government, there could be no remedy but force. The means to be
employed must be proportioned to the extent of the mischief. If it
should be a slight commotion in a small part of a State, the militia of
the residue would be adequate to its suppression; and the national
presumption is that they would be ready to do their duty. An
insurrection, whatever may be its immediate cause, eventually endangers
all government. Regard to the public peace, if not to the rights of the
Union, would engage the citizens to whom the contagion had not
communicated itself to oppose the insurgents; and if the general
government should be found in practice conducive to the prosperity and
felicity of the people, it were irrational to believe that they would
be disinclined to its support.

If, on the contrary, the insurrection should pervade a whole State, or
a principal part of it, the employment of a different kind of force
might become unavoidable. It appears that Massachusetts found it
necessary to raise troops for repressing the disorders within that
State; that Pennsylvania, from the mere apprehension of commotions
among a part of her citizens, has thought proper to have recourse to
the same measure. Suppose the State of New York had been inclined to
re-establish her lost jurisdiction over the inhabitants of Vermont,
could she have hoped for success in such an enterprise from the efforts
of the militia alone? Would she not have been compelled to raise and to
maintain a more regular force for the execution of her design? If it
must then be admitted that the necessity of recurring to a force
different from the militia, in cases of this extraordinary nature, is
applicable to the State governments themselves, why should the
possibility, that the national government might be under a like
necessity, in similar extremities, be made an objection to its
existence? Is it not surprising that men who declare an attachment to
the Union in the abstract, should urge as an objection to the proposed
Constitution what applies with tenfold weight to the plan for which
they contend; and what, as far as it has any foundation in truth, is an
inevitable consequence of civil society upon an enlarged scale? Who
would not prefer that possibility to the unceasing agitations and
frequent revolutions which are the continual scourges of petty
republics?

Let us pursue this examination in another light. Suppose, in lieu of
one general system, two, or three, or even four Confederacies were to
be formed, would not the same difficulty oppose itself to the
operations of either of these Confederacies? Would not each of them be
exposed to the same casualties; and when these happened, be obliged to
have recourse to the same expedients for upholding its authority which
are objected to in a government for all the States? Would the militia,
in this supposition, be more ready or more able to support the federal
authority than in the case of a general union? All candid and
intelligent men must, upon due consideration, acknowledge that the
principle of the objection is equally applicable to either of the two
cases; and that whether we have one government for all the States, or
different governments for different parcels of them, or even if there
should be an entire separation of the States, there might sometimes be
a necessity to make use of a force constituted differently from the
militia, to preserve the peace of the community and to maintain the
just authority of the laws against those violent invasions of them
which amount to insurrections and rebellions.

Independent of all other reasonings upon the subject, it is a full
answer to those who require a more peremptory provision against
military establishments in time of peace, to say that the whole power
of the proposed government is to be in the hands of the representatives
of the people. This is the essential, and, after all, only efficacious
security for the rights and privileges of the people, which is
attainable in civil society.[1]

If the representatives of the people betray their constituents, there
is then no resource left but in the exertion of that original right of
self-defense which is paramount to all positive forms of government,
and which against the usurpations of the national rulers, may be
exerted with infinitely better prospect of success than against those
of the rulers of an individual state. In a single state, if the persons
intrusted with supreme power become usurpers, the different parcels,
subdivisions, or districts of which it consists, having no distinct
government in each, can take no regular measures for defense. The
citizens must rush tumultuously to arms, without concert, without
system, without resource; except in their courage and despair. The
usurpers, clothed with the forms of legal authority, can too often
crush the opposition in embryo. The smaller the extent of the
territory, the more difficult will it be for the people to form a
regular or systematic plan of opposition, and the more easy will it be
to defeat their early efforts. Intelligence can be more speedily
obtained of their preparations and movements, and the military force in
the possession of the usurpers can be more rapidly directed against the
part where the opposition has begun. In this situation there must be a
peculiar coincidence of circumstances to insure success to the popular
resistance.

The obstacles to usurpation and the facilities of resistance increase
with the increased extent of the state, provided the citizens
understand their rights and are disposed to defend them. The natural
strength of the people in a large community, in proportion to the
artificial strength of the government, is greater than in a small, and
of course more competent to a struggle with the attempts of the
government to establish a tyranny. But in a confederacy the people,
without exaggeration, may be said to be entirely the masters of their
own fate. Power being almost always the rival of power, the general
government will at all times stand ready to check the usurpations of
the state governments, and these will have the same disposition towards
the general government. The people, by throwing themselves into either
scale, will infallibly make it preponderate. If their rights are
invaded by either, they can make use of the other as the instrument of
redress. How wise will it be in them by cherishing the union to
preserve to themselves an advantage which can never be too highly
prized!

It may safely be received as an axiom in our political system, that the
State governments will, in all possible contingencies, afford complete
security against invasions of the public liberty by the national
authority. Projects of usurpation cannot be masked under pretenses so
likely to escape the penetration of select bodies of men, as of the
people at large. The legislatures will have better means of
information. They can discover the danger at a distance; and possessing
all the organs of civil power, and the confidence of the people, they
can at once adopt a regular plan of opposition, in which they can
combine all the resources of the community. They can readily
communicate with each other in the different States, and unite their
common forces for the protection of their common liberty.

The great extent of the country is a further security. We have already
experienced its utility against the attacks of a foreign power. And it
would have precisely the same effect against the enterprises of
ambitious rulers in the national councils. If the federal army should
be able to quell the resistance of one State, the distant States would
have it in their power to make head with fresh forces. The advantages
obtained in one place must be abandoned to subdue the opposition in
others; and the moment the part which had been reduced to submission
was left to itself, its efforts would be renewed, and its resistance
revive.

We should recollect that the extent of the military force must, at all
events, be regulated by the resources of the country. For a long time
to come, it will not be possible to maintain a large army; and as the
means of doing this increase, the population and natural strength of
the community will proportionably increase. When will the time arrive
that the federal government can raise and maintain an army capable of
erecting a despotism over the great body of the people of an immense
empire, who are in a situation, through the medium of their State
governments, to take measures for their own defense, with all the
celerity, regularity, and system of independent nations? The
apprehension may be considered as a disease, for which there can be
found no cure in the resources of argument and reasoning.

PUBLIUS.

 [1] Its full efficacy will be examined hereafter.




THE FEDERALIST.
No. XXIX.

Concerning the Militia

From the Daily Advertiser.

Thursday, January 10, 1788

HAMILTON


To the People of the State of New York:

The power of regulating the militia, and of commanding its services in
times of insurrection and invasion are natural incidents to the duties
of superintending the common defense, and of watching over the internal
peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity
in the organization and discipline of the militia would be attended
with the most beneficial effects, whenever they were called into
service for the public defense. It would enable them to discharge the
duties of the camp and of the field with mutual intelligence and
concert an advantage of peculiar moment in the operations of an army;
and it would fit them much sooner to acquire the degree of proficiency
in military functions which would be essential to their usefulness.
This desirable uniformity can only be accomplished by confiding the
regulation of the militia to the direction of the national authority.
It is, therefore, with the most evident propriety, that the plan of the
convention proposes to empower the Union “to provide for organizing,
arming, and disciplining the militia, and for governing such part of
them as may be employed in the service of the United States, RESERVING
TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE
AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE
PRESCRIBED BY CONGRESS.”

Of the different grounds which have been taken in opposition to the
plan of the convention, there is none that was so little to have been
expected, or is so untenable in itself, as the one from which this
particular provision has been attacked. If a well-regulated militia be
the most natural defense of a free country, it ought certainly to be
under the regulation and at the disposal of that body which is
constituted the guardian of the national security. If standing armies
are dangerous to liberty, an efficacious power over the militia, in the
body to whose care the protection of the State is committed, ought, as
far as possible, to take away the inducement and the pretext to such
unfriendly institutions. If the federal government can command the aid
of the militia in those emergencies which call for the military arm in
support of the civil magistrate, it can the better dispense with the
employment of a different kind of force. If it cannot avail itself of
the former, it will be obliged to recur to the latter. To render an
army unnecessary, will be a more certain method of preventing its
existence than a thousand prohibitions upon paper.

In order to cast an odium upon the power of calling forth the militia
to execute the laws of the Union, it has been remarked that there is
nowhere any provision in the proposed Constitution for calling out the
POSSE COMITATUS, to assist the magistrate in the execution of his duty,
whence it has been inferred, that military force was intended to be his
only auxiliary. There is a striking incoherence in the objections which
have appeared, and sometimes even from the same quarter, not much
calculated to inspire a very favorable opinion of the sincerity or fair
dealing of their authors. The same persons who tell us in one breath,
that the powers of the federal government will be despotic and
unlimited, inform us in the next, that it has not authority sufficient
even to call out the POSSE COMITATUS. The latter, fortunately, is as
much short of the truth as the former exceeds it. It would be as absurd
to doubt, that a right to pass all laws NECESSARY AND PROPER to execute
its declared powers, would include that of requiring the assistance of
the citizens to the officers who may be intrusted with the execution of
those laws, as it would be to believe, that a right to enact laws
necessary and proper for the imposition and collection of taxes would
involve that of varying the rules of descent and of the alienation of
landed property, or of abolishing the trial by jury in cases relating
to it. It being therefore evident that the supposition of a want of
power to require the aid of the POSSE COMITATUS is entirely destitute
of color, it will follow, that the conclusion which has been drawn from
it, in its application to the authority of the federal government over
the militia, is as uncandid as it is illogical. What reason could there
be to infer, that force was intended to be the sole instrument of
authority, merely because there is a power to make use of it when
necessary? What shall we think of the motives which could induce men of
sense to reason in this manner? How shall we prevent a conflict between
charity and judgment?

By a curious refinement upon the spirit of republican jealousy, we are
even taught to apprehend danger from the militia itself, in the hands
of the federal government. It is observed that select corps may be
formed, composed of the young and ardent, who may be rendered
subservient to the views of arbitrary power. What plan for the
regulation of the militia may be pursued by the national government, is
impossible to be foreseen. But so far from viewing the matter in the
same light with those who object to select corps as dangerous, were the
Constitution ratified, and were I to deliver my sentiments to a member
of the federal legislature from this State on the subject of a militia
establishment, I should hold to him, in substance, the following
discourse:

“The project of disciplining all the militia of the United States is as
futile as it would be injurious, if it were capable of being carried
into execution. A tolerable expertness in military movements is a
business that requires time and practice. It is not a day, or even a
week, that will suffice for the attainment of it. To oblige the great
body of the yeomanry, and of the other classes of the citizens, to be
under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a
well-regulated militia, would be a real grievance to the people, and a
serious public inconvenience and loss. It would form an annual
deduction from the productive labor of the country, to an amount which,
calculating upon the present numbers of the people, would not fall far
short of the whole expense of the civil establishments of all the
States. To attempt a thing which would abridge the mass of labor and
industry to so considerable an extent, would be unwise: and the
experiment, if made, could not succeed, because it would not long be
endured. Little more can reasonably be aimed at, with respect to the
people at large, than to have them properly armed and equipped; and in
order to see that this be not neglected, it will be necessary to
assemble them once or twice in the course of a year.

“But though the scheme of disciplining the whole nation must be
abandoned as mischievous or impracticable; yet it is a matter of the
utmost importance that a well-digested plan should, as soon as
possible, be adopted for the proper establishment of the militia. The
attention of the government ought particularly to be directed to the
formation of a select corps of moderate extent, upon such principles as
will really fit them for service in case of need. By thus
circumscribing the plan, it will be possible to have an excellent body
of well-trained militia, ready to take the field whenever the defense
of the State shall require it. This will not only lessen the call for
military establishments, but if circumstances should at any time oblige
the government to form an army of any magnitude that army can never be
formidable to the liberties of the people while there is a large body
of citizens, little, if at all, inferior to them in discipline and the
use of arms, who stand ready to defend their own rights and those of
their fellow-citizens. This appears to me the only substitute that can
be devised for a standing army, and the best possible security against
it, if it should exist.”

Thus differently from the adversaries of the proposed Constitution
should I reason on the same subject, deducing arguments of safety from
the very sources which they represent as fraught with danger and
perdition. But how the national legislature may reason on the point, is
a thing which neither they nor I can foresee.

There is something so far-fetched and so extravagant in the idea of
danger to liberty from the militia, that one is at a loss whether to
treat it with gravity or with raillery; whether to consider it as a
mere trial of skill, like the paradoxes of rhetoricians; as a
disingenuous artifice to instil prejudices at any price; or as the
serious offspring of political fanaticism. Where in the name of
common-sense, are our fears to end if we may not trust our sons, our
brothers, our neighbors, our fellow-citizens? What shadow of danger can
there be from men who are daily mingling with the rest of their
countrymen and who participate with them in the same feelings,
sentiments, habits and interests? What reasonable cause of apprehension
can be inferred from a power in the Union to prescribe regulations for
the militia, and to command its services when necessary, while the
particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE
OFFICERS? If it were possible seriously to indulge a jealousy of the
militia upon any conceivable establishment under the federal
government, the circumstance of the officers being in the appointment
of the States ought at once to extinguish it. There can be no doubt
that this circumstance will always secure to them a preponderating
influence over the militia.

In reading many of the publications against the Constitution, a man is
apt to imagine that he is perusing some ill-written tale or romance,
which instead of natural and agreeable images, exhibits to the mind
nothing but frightful and distorted shapes—

“Gorgons, hydras, and chimeras dire;”

discoloring and disfiguring whatever it represents, and transforming
everything it touches into a monster.

A sample of this is to be observed in the exaggerated and improbable
suggestions which have taken place respecting the power of calling for
the services of the militia. That of New Hampshire is to be marched to
Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of
Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch
are to be paid in militiamen instead of louis d’ors and ducats. At one
moment there is to be a large army to lay prostrate the liberties of
the people; at another moment the militia of Virginia are to be dragged
from their homes five or six hundred miles, to tame the republican
contumacy of Massachusetts; and that of Massachusetts is to be
transported an equal distance to subdue the refractory haughtiness of
the aristocratic Virginians. Do the persons who rave at this rate
imagine that their art or their eloquence can impose any conceits or
absurdities upon the people of America for infallible truths?

If there should be an army to be made use of as the engine of
despotism, what need of the militia? If there should be no army,
whither would the militia, irritated by being called upon to undertake
a distant and hopeless expedition, for the purpose of riveting the
chains of slavery upon a part of their countrymen, direct their course,
but to the seat of the tyrants, who had meditated so foolish as well as
so wicked a project, to crush them in their imagined intrenchments of
power, and to make them an example of the just vengeance of an abused
and incensed people? Is this the way in which usurpers stride to
dominion over a numerous and enlightened nation? Do they begin by
exciting the detestation of the very instruments of their intended
usurpations? Do they usually commence their career by wanton and
disgustful acts of power, calculated to answer no end, but to draw upon
themselves universal hatred and execration? Are suppositions of this
sort the sober admonitions of discerning patriots to a discerning
people? Or are they the inflammatory ravings of incendiaries or
distempered enthusiasts? If we were even to suppose the national rulers
actuated by the most ungovernable ambition, it is impossible to believe
that they would employ such preposterous means to accomplish their
designs.

In times of insurrection, or invasion, it would be natural and proper
that the militia of a neighboring State should be marched into another,
to resist a common enemy, or to guard the republic against the violence
of faction or sedition. This was frequently the case, in respect to the
first object, in the course of the late war; and this mutual succor is,
indeed, a principal end of our political association. If the power of
affording it be placed under the direction of the Union, there will be
no danger of a supine and listless inattention to the dangers of a
neighbor, till its near approach had superadded the incitements of
selfpreservation to the too feeble impulses of duty and sympathy.

PUBLIUS.




THE FEDERALIST.
No. XXX.

Concerning the General Power of Taxation

From the New York Packet.

Friday, December 28, 1787.

HAMILTON


To the People of the State of New York:

It has been already observed that the federal government ought to
possess the power of providing for the support of the national forces;
in which proposition was intended to be included the expense of raising
troops, of building and equipping fleets, and all other expenses in any
wise connected with military arrangements and operations. But these are
not the only objects to which the jurisdiction of the Union, in respect
to revenue, must necessarily be empowered to extend. It must embrace a
provision for the support of the national civil list; for the payment
of the national debts contracted, or that may be contracted; and, in
general, for all those matters which will call for disbursements out of
the national treasury. The conclusion is, that there must be
interwoven, in the frame of the government, a general power of
taxation, in one shape or another.

Money is, with propriety, considered as the vital principle of the body
politic; as that which sustains its life and motion, and enables it to
perform its most essential functions. A complete power, therefore, to
procure a regular and adequate supply of it, as far as the resources of
the community will permit, may be regarded as an indispensable
ingredient in every constitution. From a deficiency in this particular,
one of two evils must ensue; either the people must be subjected to
continual plunder, as a substitute for a more eligible mode of
supplying the public wants, or the government must sink into a fatal
atrophy, and, in a short course of time, perish.

In the Ottoman or Turkish empire, the sovereign, though in other
respects absolute master of the lives and fortunes of his subjects, has
no right to impose a new tax. The consequence is that he permits the
bashaws or governors of provinces to pillage the people without mercy;
and, in turn, squeezes out of them the sums of which he stands in need,
to satisfy his own exigencies and those of the state. In America, from
a like cause, the government of the Union has gradually dwindled into a
state of decay, approaching nearly to annihilation. Who can doubt, that
the happiness of the people in both countries would be promoted by
competent authorities in the proper hands, to provide the revenues
which the necessities of the public might require?

The present Confederation, feeble as it is intended to repose in the
United States, an unlimited power of providing for the pecuniary wants
of the Union. But proceeding upon an erroneous principle, it has been
done in such a manner as entirely to have frustrated the intention.
Congress, by the articles which compose that compact (as has already
been stated), are authorized to ascertain and call for any sums of
money necessary, in their judgment, to the service of the United
States; and their requisitions, if conformable to the rule of
apportionment, are in every constitutional sense obligatory upon the
States. These have no right to question the propriety of the demand; no
discretion beyond that of devising the ways and means of furnishing the
sums demanded. But though this be strictly and truly the case; though
the assumption of such a right would be an infringement of the articles
of Union; though it may seldom or never have been avowedly claimed, yet
in practice it has been constantly exercised, and would continue to be
so, as long as the revenues of the Confederacy should remain dependent
on the intermediate agency of its members. What the consequences of
this system have been, is within the knowledge of every man the least
conversant in our public affairs, and has been amply unfolded in
different parts of these inquiries. It is this which has chiefly
contributed to reduce us to a situation, which affords ample cause both
of mortification to ourselves, and of triumph to our enemies.

What remedy can there be for this situation, but in a change of the
system which has produced it in a change of the fallacious and delusive
system of quotas and requisitions? What substitute can there be
imagined for this ignis fatuus in finance, but that of permitting the
national government to raise its own revenues by the ordinary methods
of taxation authorized in every well-ordered constitution of civil
government? Ingenious men may declaim with plausibility on any subject;
but no human ingenuity can point out any other expedient to rescue us
from the inconveniences and embarrassments naturally resulting from
defective supplies of the public treasury.

The more intelligent adversaries of the new Constitution admit the
force of this reasoning; but they qualify their admission by a
distinction between what they call INTERNAL and EXTERNAL taxation. The
former they would reserve to the State governments; the latter, which
they explain into commercial imposts, or rather duties on imported
articles, they declare themselves willing to concede to the federal
head. This distinction, however, would violate the maxim of good sense
and sound policy, which dictates that every POWER ought to be in
proportion to its OBJECT; and would still leave the general government
in a kind of tutelage to the State governments, inconsistent with every
idea of vigor or efficiency. Who can pretend that commercial imposts
are, or would be, alone equal to the present and future exigencies of
the Union? Taking into the account the existing debt, foreign and
domestic, upon any plan of extinguishment which a man moderately
impressed with the importance of public justice and public credit could
approve, in addition to the establishments which all parties will
acknowledge to be necessary, we could not reasonably flatter ourselves,
that this resource alone, upon the most improved scale, would even
suffice for its present necessities. Its future necessities admit not
of calculation or limitation; and upon the principle, more than once
adverted to, the power of making provision for them as they arise ought
to be equally unconfined. I believe it may be regarded as a position
warranted by the history of mankind, that, IN THE USUAL PROGRESS OF
THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF ITS EXISTENCE,
WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.

To say that deficiencies may be provided for by requisitions upon the
States, is on the one hand to acknowledge that this system cannot be
depended upon, and on the other hand to depend upon it for every thing
beyond a certain limit. Those who have carefully attended to its vices
and deformities as they have been exhibited by experience or delineated
in the course of these papers, must feel invincible repugnancy to
trusting the national interests in any degree to its operation. Its
inevitable tendency, whenever it is brought into activity, must be to
enfeeble the Union, and sow the seeds of discord and contention between
the federal head and its members, and between the members themselves.
Can it be expected that the deficiencies would be better supplied in
this mode than the total wants of the Union have heretofore been
supplied in the same mode? It ought to be recollected that if less will
be required from the States, they will have proportionably less means
to answer the demand. If the opinions of those who contend for the
distinction which has been mentioned were to be received as evidence of
truth, one would be led to conclude that there was some known point in
the economy of national affairs at which it would be safe to stop and
to say: Thus far the ends of public happiness will be promoted by
supplying the wants of government, and all beyond this is unworthy of
our care or anxiety. How is it possible that a government half supplied
and always necessitous, can fulfill the purposes of its institution,
can provide for the security, advance the prosperity, or support the
reputation of the commonwealth? How can it ever possess either energy
or stability, dignity or credit, confidence at home or respectability
abroad? How can its administration be any thing else than a succession
of expedients temporizing, impotent, disgraceful? How will it be able
to avoid a frequent sacrifice of its engagements to immediate
necessity? How can it undertake or execute any liberal or enlarged
plans of public good?

Let us attend to what would be the effects of this situation in the
very first war in which we should happen to be engaged. We will
presume, for argument’s sake, that the revenue arising from the impost
duties answers the purposes of a provision for the public debt and of a
peace establishment for the Union. Thus circumstanced, a war breaks
out. What would be the probable conduct of the government in such an
emergency? Taught by experience that proper dependence could not be
placed on the success of requisitions, unable by its own authority to
lay hold of fresh resources, and urged by considerations of national
danger, would it not be driven to the expedient of diverting the funds
already appropriated from their proper objects to the defense of the
State? It is not easy to see how a step of this kind could be avoided;
and if it should be taken, it is evident that it would prove the
destruction of public credit at the very moment that it was becoming
essential to the public safety. To imagine that at such a crisis credit
might be dispensed with, would be the extreme of infatuation. In the
modern system of war, nations the most wealthy are obliged to have
recourse to large loans. A country so little opulent as ours must feel
this necessity in a much stronger degree. But who would lend to a
government that prefaced its overtures for borrowing by an act which
demonstrated that no reliance could be placed on the steadiness of its
measures for paying? The loans it might be able to procure would be as
limited in their extent as burdensome in their conditions. They would
be made upon the same principles that usurers commonly lend to bankrupt
and fraudulent debtors, with a sparing hand and at enormous premiums.

It may perhaps be imagined that, from the scantiness of the resources
of the country, the necessity of diverting the established funds in the
case supposed would exist, though the national government should
possess an unrestrained power of taxation. But two considerations will
serve to quiet all apprehension on this head: one is, that we are sure
the resources of the community, in their full extent, will be brought
into activity for the benefit of the Union; the other is, that whatever
deficiences there may be, can without difficulty be supplied by loans.

The power of creating new funds upon new objects of taxation, by its
own authority, would enable the national government to borrow as far as
its necessities might require. Foreigners, as well as the citizens of
America, could then reasonably repose confidence in its engagements;
but to depend upon a government that must itself depend upon thirteen
other governments for the means of fulfilling its contracts, when once
its situation is clearly understood, would require a degree of
credulity not often to be met with in the pecuniary transactions of
mankind, and little reconcilable with the usual sharp-sightedness of
avarice.

Reflections of this kind may have trifling weight with men who hope to
see realized in America the halcyon scenes of the poetic or fabulous
age; but to those who believe we are likely to experience a common
portion of the vicissitudes and calamities which have fallen to the lot
of other nations, they must appear entitled to serious attention. Such
men must behold the actual situation of their country with painful
solicitude, and deprecate the evils which ambition or revenge might,
with too much facility, inflict upon it.

PUBLIUS.




THE FEDERALIST.
No. XXXI.

The Same Subject Continued

(Concerning the General Power of Taxation)

From the New York Packet.

Tuesday, January 1, 1788.

HAMILTON


To the People of the State of New York:

In disquisitions of every kind, there are certain primary truths, or
first principles, upon which all subsequent reasonings must depend.
These contain an internal evidence which, antecedent to all reflection
or combination, commands the assent of the mind. Where it produces not
this effect, it must proceed either from some defect or disorder in the
organs of perception, or from the influence of some strong interest, or
passion, or prejudice. Of this nature are the maxims in geometry, that
“the whole is greater than its part; things equal to the same are equal
to one another; two straight lines cannot enclose a space; and all
right angles are equal to each other.” Of the same nature are these
other maxims in ethics and politics, that there cannot be an effect
without a cause; that the means ought to be proportioned to the end;
that every power ought to be commensurate with its object; that there
ought to be no limitation of a power destined to effect a purpose which
is itself incapable of limitation. And there are other truths in the
two latter sciences which, if they cannot pretend to rank in the class
of axioms, are yet such direct inferences from them, and so obvious in
themselves, and so agreeable to the natural and unsophisticated
dictates of common-sense, that they challenge the assent of a sound and
unbiased mind, with a degree of force and conviction almost equally
irresistible.

The objects of geometrical inquiry are so entirely abstracted from
those pursuits which stir up and put in motion the unruly passions of
the human heart, that mankind, without difficulty, adopt not only the
more simple theorems of the science, but even those abstruse paradoxes
which, however they may appear susceptible of demonstration, are at
variance with the natural conceptions which the mind, without the aid
of philosophy, would be led to entertain upon the subject. The INFINITE
DIVISIBILITY of matter, or, in other words, the INFINITE divisibility
of a FINITE thing, extending even to the minutest atom, is a point
agreed among geometricians, though not less incomprehensible to
common-sense than any of those mysteries in religion, against which the
batteries of infidelity have been so industriously leveled.

But in the sciences of morals and politics, men are found far less
tractable. To a certain degree, it is right and useful that this should
be the case. Caution and investigation are a necessary armor against
error and imposition. But this untractableness may be carried too far,
and may degenerate into obstinacy, perverseness, or disingenuity.
Though it cannot be pretended that the principles of moral and
political knowledge have, in general, the same degree of certainty with
those of the mathematics, yet they have much better claims in this
respect than, to judge from the conduct of men in particular
situations, we should be disposed to allow them. The obscurity is much
oftener in the passions and prejudices of the reasoner than in the
subject. Men, upon too many occasions, do not give their own
understandings fair play; but, yielding to some untoward bias, they
entangle themselves in words and confound themselves in subtleties.

How else could it happen (if we admit the objectors to be sincere in
their opposition), that positions so clear as those which manifest the
necessity of a general power of taxation in the government of the
Union, should have to encounter any adversaries among men of
discernment? Though these positions have been elsewhere fully stated,
they will perhaps not be improperly recapitulated in this place, as
introductory to an examination of what may have been offered by way of
objection to them. They are in substance as follows:

A government ought to contain in itself every power requisite to the
full accomplishment of the objects committed to its care, and to the
complete execution of the trusts for which it is responsible, free from
every other control but a regard to the public good and to the sense of
the people.

As the duties of superintending the national defense and of securing
the public peace against foreign or domestic violence involve a
provision for casualties and dangers to which no possible limits can be
assigned, the power of making that provision ought to know no other
bounds than the exigencies of the nation and the resources of the
community.

As revenue is the essential engine by which the means of answering the
national exigencies must be procured, the power of procuring that
article in its full extent must necessarily be comprehended in that of
providing for those exigencies.

As theory and practice conspire to prove that the power of procuring
revenue is unavailing when exercised over the States in their
collective capacities, the federal government must of necessity be
invested with an unqualified power of taxation in the ordinary modes.

Did not experience evince the contrary, it would be natural to conclude
that the propriety of a general power of taxation in the national
government might safely be permitted to rest on the evidence of these
propositions, unassisted by any additional arguments or illustrations.
But we find, in fact, that the antagonists of the proposed
Constitution, so far from acquiescing in their justness or truth, seem
to make their principal and most zealous effort against this part of
the plan. It may therefore be satisfactory to analyze the arguments
with which they combat it.

Those of them which have been most labored with that view, seem in
substance to amount to this: “It is not true, because the exigencies of
the Union may not be susceptible of limitation, that its power of
laying taxes ought to be unconfined. Revenue is as requisite to the
purposes of the local administrations as to those of the Union; and the
former are at least of equal importance with the latter to the
happiness of the people. It is, therefore, as necessary that the State
governments should be able to command the means of supplying their
wants, as that the national government should possess the like faculty
in respect to the wants of the Union. But an indefinite power of
taxation in the LATTER might, and probably would in time, deprive the
FORMER of the means of providing for their own necessities; and would
subject them entirely to the mercy of the national legislature. As the
laws of the Union are to become the supreme law of the land, as it is
to have power to pass all laws that may be NECESSARY for carrying into
execution the authorities with which it is proposed to vest it, the
national government might at any time abolish the taxes imposed for
State objects upon the pretense of an interference with its own. It
might allege a necessity of doing this in order to give efficacy to the
national revenues. And thus all the resources of taxation might by
degrees become the subjects of federal monopoly, to the entire
exclusion and destruction of the State governments.”

This mode of reasoning appears sometimes to turn upon the supposition
of usurpation in the national government; at other times it seems to be
designed only as a deduction from the constitutional operation of its
intended powers. It is only in the latter light that it can be admitted
to have any pretensions to fairness. The moment we launch into
conjectures about the usurpations of the federal government, we get
into an unfathomable abyss, and fairly put ourselves out of the reach
of all reasoning. Imagination may range at pleasure till it gets
bewildered amidst the labyrinths of an enchanted castle, and knows not
on which side to turn to extricate itself from the perplexities into
which it has so rashly adventured. Whatever may be the limits or
modifications of the powers of the Union, it is easy to imagine an
endless train of possible dangers; and by indulging an excess of
jealousy and timidity, we may bring ourselves to a state of absolute
scepticism and irresolution. I repeat here what I have observed in
substance in another place, that all observations founded upon the
danger of usurpation ought to be referred to the composition and
structure of the government, not to the nature or extent of its powers.
The State governments, by their original constitutions, are invested
with complete sovereignty. In what does our security consist against
usurpation from that quarter? Doubtless in the manner of their
formation, and in a due dependence of those who are to administer them
upon the people. If the proposed construction of the federal government
be found, upon an impartial examination of it, to be such as to afford,
to a proper extent, the same species of security, all apprehensions on
the score of usurpation ought to be discarded.

It should not be forgotten that a disposition in the State governments
to encroach upon the rights of the Union is quite as probable as a
disposition in the Union to encroach upon the rights of the State
governments. What side would be likely to prevail in such a conflict,
must depend on the means which the contending parties could employ
toward insuring success. As in republics strength is always on the side
of the people, and as there are weighty reasons to induce a belief that
the State governments will commonly possess most influence over them,
the natural conclusion is that such contests will be most apt to end to
the disadvantage of the Union; and that there is greater probability of
encroachments by the members upon the federal head, than by the federal
head upon the members. But it is evident that all conjectures of this
kind must be extremely vague and fallible: and that it is by far the
safest course to lay them altogether aside, and to confine our
attention wholly to the nature and extent of the powers as they are
delineated in the Constitution. Every thing beyond this must be left to
the prudence and firmness of the people; who, as they will hold the
scales in their own hands, it is to be hoped, will always take care to
preserve the constitutional equilibrium between the general and the
State governments. Upon this ground, which is evidently the true one,
it will not be difficult to obviate the objections which have been made
to an indefinite power of taxation in the United States.

PUBLIUS.




THE FEDERALIST.
No. XXXII.

The Same Subject Continued

(Concerning the General Power of Taxation)

From the Daily Advertiser.

Thursday, January 3, 1788.

HAMILTON


To the People of the State of New York:

Although I am of opinion that there would be no real danger of the
consequences which seem to be apprehended to the State governments from
a power in the Union to control them in the levies of money, because I
am persuaded that the sense of the people, the extreme hazard of
provoking the resentments of the State governments, and a conviction of
the utility and necessity of local administrations for local purposes,
would be a complete barrier against the oppressive use of such a power;
yet I am willing here to allow, in its full extent, the justness of the
reasoning which requires that the individual States should possess an
independent and uncontrollable authority to raise their own revenues
for the supply of their own wants. And making this concession, I affirm
that (with the sole exception of duties on imports and exports) they
would, under the plan of the convention, retain that authority in the
most absolute and unqualified sense; and that an attempt on the part of
the national government to abridge them in the exercise of it, would be
a violent assumption of power, unwarranted by any article or clause of
its Constitution.

An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and
whatever powers might remain in them, would be altogether dependent on
the general will. But as the plan of the convention aims only at a
partial union or consolidation, the State governments would clearly
retain all the rights of sovereignty which they before had, and which
were not, by that act, EXCLUSIVELY delegated to the United States. This
exclusive delegation, or rather this alienation, of State sovereignty,
would only exist in three cases: where the Constitution in express
terms granted an exclusive authority to the Union; where it granted in
one instance an authority to the Union, and in another prohibited the
States from exercising the like authority; and where it granted an
authority to the Union, to which a similar authority in the States
would be absolutely and totally CONTRADICTORY and REPUGNANT. I use
these terms to distinguish this last case from another which might
appear to resemble it, but which would, in fact, be essentially
different; I mean where the exercise of a concurrent jurisdiction might
be productive of occasional interferences in the POLICY of any branch
of administration, but would not imply any direct contradiction or
repugnancy in point of constitutional authority. These three cases of
exclusive jurisdiction in the federal government may be exemplified by
the following instances: The last clause but one in the eighth section
of the first article provides expressly that Congress shall exercise
“EXCLUSIVE LEGISLATION” over the district to be appropriated as the
seat of government. This answers to the first case. The first clause of
the same section empowers Congress “TO LAY AND COLLECT TAXES, DUTIES,
IMPOSTS AND EXCISES”; and the second clause of the tenth section of the
same article declares that, “NO STATE SHALL, without the consent of
Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS, except for
the purpose of executing its inspection laws.” Hence would result an
exclusive power in the Union to lay duties on imports and exports, with
the particular exception mentioned; but this power is abridged by
another clause, which declares that no tax or duty shall be laid on
articles exported from any State; in consequence of which
qualification, it now only extends to the DUTIES ON IMPORTS. This
answers to the second case. The third will be found in that clause
which declares that Congress shall have power “to establish an UNIFORM
RULE of naturalization throughout the United States.” This must
necessarily be exclusive; because if each State had power to prescribe
a DISTINCT RULE, there could not be a UNIFORM RULE.

A case which may perhaps be thought to resemble the latter, but which
is in fact widely different, affects the question immediately under
consideration. I mean the power of imposing taxes on all articles other
than exports and imports. This, I contend, is manifestly a concurrent
and coequal authority in the United States and in the individual
States. There is plainly no expression in the granting clause which
makes that power EXCLUSIVE in the Union. There is no independent clause
or sentence which prohibits the States from exercising it. So far is
this from being the case, that a plain and conclusive argument to the
contrary is to be deduced from the restraint laid upon the States in
relation to duties on imports and exports. This restriction implies an
admission that, if it were not inserted, the States would possess the
power it excludes; and it implies a further admission, that as to all
other taxes, the authority of the States remains undiminished. In any
other view it would be both unnecessary and dangerous; it would be
unnecessary, because if the grant to the Union of the power of laying
such duties implied the exclusion of the States, or even their
subordination in this particular, there could be no need of such a
restriction; it would be dangerous, because the introduction of it
leads directly to the conclusion which has been mentioned, and which,
if the reasoning of the objectors be just, could not have been
intended; I mean that the States, in all cases to which the restriction
did not apply, would have a concurrent power of taxation with the
Union. The restriction in question amounts to what lawyers call a
NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE
of another; a negation of the authority of the States to impose taxes
on imports and exports, and an affirmance of their authority to impose
them on all other articles. It would be mere sophistry to argue that it
was meant to exclude them ABSOLUTELY from the imposition of taxes of
the former kind, and to leave them at liberty to lay others SUBJECT TO
THE CONTROL of the national legislature. The restraining or prohibitory
clause only says, that they shall not, WITHOUT THE CONSENT OF CONGRESS,
lay such duties; and if we are to understand this in the sense last
mentioned, the Constitution would then be made to introduce a formal
provision for the sake of a very absurd conclusion; which is, that the
States, WITH THE CONSENT of the national legislature, might tax imports
and exports; and that they might tax every other article, UNLESS
CONTROLLED by the same body. If this was the intention, why not leave
it, in the first instance, to what is alleged to be the natural
operation of the original clause, conferring a general power of
taxation upon the Union? It is evident that this could not have been
the intention, and that it will not bear a construction of the kind.

As to a supposition of repugnancy between the power of taxation in the
States and in the Union, it cannot be supported in that sense which
would be requisite to work an exclusion of the States. It is, indeed,
possible that a tax might be laid on a particular article by a State
which might render it INEXPEDIENT that thus a further tax should be
laid on the same article by the Union; but it would not imply a
constitutional inability to impose a further tax. The quantity of the
imposition, the expediency or inexpediency of an increase on either
side, would be mutually questions of prudence; but there would be
involved no direct contradiction of power. The particular policy of the
national and of the State systems of finance might now and then not
exactly coincide, and might require reciprocal forbearances. It is not,
however a mere possibility of inconvenience in the exercise of powers,
but an immediate constitutional repugnancy that can by implication
alienate and extinguish a pre-existing right of sovereignty.

The necessity of a concurrent jurisdiction in certain cases results
from the division of the sovereign power; and the rule that all
authorities, of which the States are not explicitly divested in favor
of the Union, remain with them in full vigor, is not a theoretical
consequence of that division, but is clearly admitted by the whole
tenor of the instrument which contains the articles of the proposed
Constitution. We there find that, notwithstanding the affirmative
grants of general authorities, there has been the most pointed care in
those cases where it was deemed improper that the like authorities
should reside in the States, to insert negative clauses prohibiting the
exercise of them by the States. The tenth section of the first article
consists altogether of such provisions. This circumstance is a clear
indication of the sense of the convention, and furnishes a rule of
interpretation out of the body of the act, which justifies the position
I have advanced and refutes every hypothesis to the contrary.

PUBLIUS.




THE FEDERALIST.
No. XXXIII.

The Same Subject Continued

(Concerning the General Power of Taxation)

From the Daily Advertiser.

January 3, 1788.

HAMILTON


To the People of the State of New York:

The residue of the argument against the provisions of the Constitution
in respect to taxation is ingrafted upon the following clause. The last
clause of the eighth section of the first article of the plan under
consideration authorizes the national legislature “to make all laws
which shall be NECESSARY and PROPER for carrying into execution THE
POWERS by that Constitution vested in the government of the United
States, or in any department or officer thereof”; and the second clause
of the sixth article declares, “that the Constitution and the laws of
the United States made IN PURSUANCE THEREOF, and the treaties made by
their authority shall be the SUPREME LAW of the land, any thing in the
constitution or laws of any State to the contrary notwithstanding.”

These two clauses have been the source of much virulent invective and
petulant declamation against the proposed Constitution. They have been
held up to the people in all the exaggerated colors of
misrepresentation as the pernicious engines by which their local
governments were to be destroyed and their liberties exterminated; as
the hideous monster whose devouring jaws would spare neither sex nor
age, nor high nor low, nor sacred nor profane; and yet, strange as it
may appear, after all this clamor, to those who may not have happened
to contemplate them in the same light, it may be affirmed with perfect
confidence that the constitutional operation of the intended government
would be precisely the same, if these clauses were entirely
obliterated, as if they were repeated in every article. They are only
declaratory of a truth which would have resulted by necessary and
unavoidable implication from the very act of constituting a federal
government, and vesting it with certain specified powers. This is so
clear a proposition, that moderation itself can scarcely listen to the
railings which have been so copiously vented against this part of the
plan, without emotions that disturb its equanimity.

What is a power, but the ability or faculty of doing a thing? What is
the ability to do a thing, but the power of employing the MEANS
necessary to its execution? What is a LEGISLATIVE power, but a power of
making LAWS? What are the MEANS to execute a LEGISLATIVE power but
LAWS? What is the power of laying and collecting taxes, but a
LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes?
What are the proper means of executing such a power, but NECESSARY and
PROPER laws?

This simple train of inquiry furnishes us at once with a test by which
to judge of the true nature of the clause complained of. It conducts us
to this palpable truth, that a power to lay and collect taxes must be a
power to pass all laws NECESSARY and PROPER for the execution of that
power; and what does the unfortunate and culumniated provision in
question do more than declare the same truth, to wit, that the national
legislature, to whom the power of laying and collecting taxes had been
previously given, might, in the execution of that power, pass all laws
NECESSARY and PROPER to carry it into effect? I have applied these
observations thus particularly to the power of taxation, because it is
the immediate subject under consideration, and because it is the most
important of the authorities proposed to be conferred upon the Union.
But the same process will lead to the same result, in relation to all
other powers declared in the Constitution. And it is EXPRESSLY to
execute these powers that the sweeping clause, as it has been
affectedly called, authorizes the national legislature to pass all
NECESSARY and PROPER laws. If there is any thing exceptionable, it must
be sought for in the specific powers upon which this general
declaration is predicated. The declaration itself, though it may be
chargeable with tautology or redundancy, is at least perfectly
harmless.

But SUSPICION may ask, Why then was it introduced? The answer is, that
it could only have been done for greater caution, and to guard against
all cavilling refinements in those who might hereafter feel a
disposition to curtail and evade the legitimate authorities of the
Union. The Convention probably foresaw, what it has been a principal
aim of these papers to inculcate, that the danger which most threatens
our political welfare is that the State governments will finally sap
the foundations of the Union; and might therefore think it necessary,
in so cardinal a point, to leave nothing to construction. Whatever may
have been the inducement to it, the wisdom of the precaution is evident
from the cry which has been raised against it; as that very cry betrays
a disposition to question the great and essential truth which it is
manifestly the object of that provision to declare.

But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as fully
upon the simple grant of those powers as upon the declaratory clause;
and I answer, in the second place, that the national government, like
every other, must judge, in the first instance, of the proper exercise
of its powers, and its constituents in the last. If the federal
government should overpass the just bounds of its authority and make a
tyrannical use of its powers, the people, whose creature it is, must
appeal to the standard they have formed, and take such measures to
redress the injury done to the Constitution as the exigency may suggest
and prudence justify. The propriety of a law, in a constitutional
light, must always be determined by the nature of the powers upon which
it is founded. Suppose, by some forced constructions of its authority
(which, indeed, cannot easily be imagined), the Federal legislature
should attempt to vary the law of descent in any State, would it not be
evident that, in making such an attempt, it had exceeded its
jurisdiction, and infringed upon that of the State? Suppose, again,
that upon the pretense of an interference with its revenues, it should
undertake to abrogate a landtax imposed by the authority of a State;
would it not be equally evident that this was an invasion of that
concurrent jurisdiction in respect to this species of tax, which its
Constitution plainly supposes to exist in the State governments? If
there ever should be a doubt on this head, the credit of it will be
entirely due to those reasoners who, in the imprudent zeal of their
animosity to the plan of the convention, have labored to envelop it in
a cloud calculated to obscure the plainest and simplest truths.

But it is said that the laws of the Union are to be the SUPREME LAW of
the land. But what inference can be drawn from this, or what would they
amount to, if they were not to be supreme? It is evident they would
amount to nothing. A LAW, by the very meaning of the term, includes
supremacy. It is a rule which those to whom it is prescribed are bound
to observe. This results from every political association. If
individuals enter into a state of society, the laws of that society
must be the supreme regulator of their conduct. If a number of
political societies enter into a larger political society, the laws
which the latter may enact, pursuant to the powers intrusted to it by
its constitution, must necessarily be supreme over those societies, and
the individuals of whom they are composed. It would otherwise be a mere
treaty, dependent on the good faith of the parties, and not a
government, which is only another word for POLITICAL POWER AND
SUPREMACY. But it will not follow from this doctrine that acts of the
large society which are NOT PURSUANT to its constitutional powers, but
which are invasions of the residuary authorities of the smaller
societies, will become the supreme law of the land. These will be
merely acts of usurpation, and will deserve to be treated as such.
Hence we perceive that the clause which declares the supremacy of the
laws of the Union, like the one we have just before considered, only
declares a truth, which flows immediately and necessarily from the
institution of a federal government. It will not, I presume, have
escaped observation, that it EXPRESSLY confines this supremacy to laws
made PURSUANT TO THE CONSTITUTION; which I mention merely as an
instance of caution in the convention; since that limitation would have
been to be understood, though it had not been expressed.

Though a law, therefore, laying a tax for the use of the United States
would be supreme in its nature, and could not legally be opposed or
controlled, yet a law for abrogating or preventing the collection of a
tax laid by the authority of the State, (unless upon imports and
exports), would not be the supreme law of the land, but a usurpation of
power not granted by the Constitution. As far as an improper
accumulation of taxes on the same object might tend to render the
collection difficult or precarious, this would be a mutual
inconvenience, not arising from a superiority or defect of power on
either side, but from an injudicious exercise of power by one or the
other, in a manner equally disadvantageous to both. It is to be hoped
and presumed, however, that mutual interest would dictate a concert in
this respect which would avoid any material inconvenience. The
inference from the whole is, that the individual States would, under
the proposed Constitution, retain an independent and uncontrollable
authority to raise revenue to any extent of which they may stand in
need, by every kind of taxation, except duties on imports and exports.
It will be shown in the next paper that this CONCURRENT JURISDICTION in
the article of taxation was the only admissible substitute for an
entire subordination, in respect to this branch of power, of the State
authority to that of the Union.

PUBLIUS.




THE FEDERALIST.
No. XXXIV.

The Same Subject Continued

(Concerning the General Power of Taxation)

From the New York Packet.

Friday, January 4, 1788.

HAMILTON


To the People of the State of New York:

I flatter myself it has been clearly shown in my last number that the
particular States, under the proposed Constitution, would have COEQUAL
authority with the Union in the article of revenue, except as to duties
on imports. As this leaves open to the States far the greatest part of
the resources of the community, there can be no color for the assertion
that they would not possess means as abundant as could be desired for
the supply of their own wants, independent of all external control.
That the field is sufficiently wide will more fully appear when we come
to advert to the inconsiderable share of the public expenses for which
it will fall to the lot of the State governments to provide.

To argue upon abstract principles that this co-ordinate authority
cannot exist, is to set up supposition and theory against fact and
reality. However proper such reasonings might be to show that a thing
OUGHT NOT TO EXIST, they are wholly to be rejected when they are made
use of to prove that it does not exist contrary to the evidence of the
fact itself. It is well known that in the Roman republic the
legislative authority, in the last resort, resided for ages in two
different political bodies not as branches of the same legislature, but
as distinct and independent legislatures, in each of which an opposite
interest prevailed: in one the patrician; in the other, the plebian.
Many arguments might have been adduced to prove the unfitness of two
such seemingly contradictory authorities, each having power to ANNUL or
REPEAL the acts of the other. But a man would have been regarded as
frantic who should have attempted at Rome to disprove their existence.
It will be readily understood that I allude to the COMITIA CENTURIATA
and the COMITIA TRIBUTA. The former, in which the people voted by
centuries, was so arranged as to give a superiority to the patrician
interest; in the latter, in which numbers prevailed, the plebian
interest had an entire predominancy. And yet these two legislatures
coexisted for ages, and the Roman republic attained to the utmost
height of human greatness.

In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there is
little reason to apprehend any inconvenience; because, in a short
course of time, the wants of the States will naturally reduce
themselves within A VERY NARROW COMPASS; and in the interim, the United
States will, in all probability, find it convenient to abstain wholly
from those objects to which the particular States would be inclined to
resort.

To form a more precise judgment of the true merits of this question, it
will be well to advert to the proportion between the objects that will
require a federal provision in respect to revenue, and those which will
require a State provision. We shall discover that the former are
altogether unlimited, and that the latter are circumscribed within very
moderate bounds. In pursuing this inquiry, we must bear in mind that we
are not to confine our view to the present period, but to look forward
to remote futurity. Constitutions of civil government are not to be
framed upon a calculation of existing exigencies, but upon a
combination of these with the probable exigencies of ages, according to
the natural and tried course of human affairs. Nothing, therefore, can
be more fallacious than to infer the extent of any power, proper to be
lodged in the national government, from an estimate of its immediate
necessities. There ought to be a CAPACITY to provide for future
contingencies as they may happen; and as these are illimitable in their
nature, it is impossible safely to limit that capacity. It is true,
perhaps, that a computation might be made with sufficient accuracy to
answer the purpose of the quantity of revenue requisite to discharge
the subsisting engagements of the Union, and to maintain those
establishments which, for some time to come, would suffice in time of
peace. But would it be wise, or would it not rather be the extreme of
folly, to stop at this point, and to leave the government intrusted
with the care of the national defense in a state of absolute incapacity
to provide for the protection of the community against future invasions
of the public peace, by foreign war or domestic convulsions? If, on the
contrary, we ought to exceed this point, where can we stop, short of an
indefinite power of providing for emergencies as they may arise? Though
it is easy to assert, in general terms, the possibility of forming a
rational judgment of a due provision against probable dangers, yet we
may safely challenge those who make the assertion to bring forward
their data, and may affirm that they would be found as vague and
uncertain as any that could be produced to establish the probable
duration of the world. Observations confined to the mere prospects of
internal attacks can deserve no weight; though even these will admit of
no satisfactory calculation: but if we mean to be a commercial people,
it must form a part of our policy to be able one day to defend that
commerce. The support of a navy and of naval wars would involve
contingencies that must baffle all the efforts of political arithmetic.

Admitting that we ought to try the novel and absurd experiment in
politics of tying up the hands of government from offensive war founded
upon reasons of state, yet certainly we ought not to disable it from
guarding the community against the ambition or enmity of other nations.
A cloud has been for some time hanging over the European world. If it
should break forth into a storm, who can insure us that in its progress
a part of its fury would not be spent upon us? No reasonable man would
hastily pronounce that we are entirely out of its reach. Or if the
combustible materials that now seem to be collecting should be
dissipated without coming to maturity, or if a flame should be kindled
without extending to us, what security can we have that our
tranquillity will long remain undisturbed from some other cause or from
some other quarter? Let us recollect that peace or war will not always
be left to our option; that however moderate or unambitious we may be,
we cannot count upon the moderation, or hope to extinguish the ambition
of others. Who could have imagined at the conclusion of the last war
that France and Britain, wearied and exhausted as they both were, would
so soon have looked with so hostile an aspect upon each other? To judge
from the history of mankind, we shall be compelled to conclude that the
fiery and destructive passions of war reign in the human breast with
much more powerful sway than the mild and beneficent sentiments of
peace; and that to model our political systems upon speculations of
lasting tranquillity, is to calculate on the weaker springs of the
human character.

What are the chief sources of expense in every government? What has
occasioned that enormous accumulation of debts with which several of
the European nations are oppressed? The answers plainly is, wars and
rebellions; the support of those institutions which are necessary to
guard the body politic against these two most mortal diseases of
society. The expenses arising from those institutions which are
relative to the mere domestic police of a state, to the support of its
legislative, executive, and judicial departments, with their different
appendages, and to the encouragement of agriculture and manufactures
(which will comprehend almost all the objects of state expenditure),
are insignificant in comparison with those which relate to the national
defense.

In the kingdom of Great Britain, where all the ostentatious apparatus
of monarchy is to be provided for, not above a fifteenth part of the
annual income of the nation is appropriated to the class of expenses
last mentioned; the other fourteen fifteenths are absorbed in the
payment of the interest of debts contracted for carrying on the wars in
which that country has been engaged, and in the maintenance of fleets
and armies. If, on the one hand, it should be observed that the
expenses incurred in the prosecution of the ambitious enterprises and
vainglorious pursuits of a monarchy are not a proper standard by which
to judge of those which might be necessary in a republic, it ought, on
the other hand, to be remarked that there should be as great a
disproportion between the profusion and extravagance of a wealthy
kingdom in its domestic administration, and the frugality and economy
which in that particular become the modest simplicity of republican
government. If we balance a proper deduction from one side against that
which it is supposed ought to be made from the other, the proportion
may still be considered as holding good.

But let us advert to the large debt which we have ourselves contracted
in a single war, and let us only calculate on a common share of the
events which disturb the peace of nations, and we shall instantly
perceive, without the aid of any elaborate illustration, that there
must always be an immense disproportion between the objects of federal
and state expenditures. It is true that several of the States,
separately, are encumbered with considerable debts, which are an
excrescence of the late war. But this cannot happen again, if the
proposed system be adopted; and when these debts are discharged, the
only call for revenue of any consequence, which the State governments
will continue to experience, will be for the mere support of their
respective civil list; to which, if we add all contingencies, the total
amount in every State ought to fall considerably short of two hundred
thousand pounds.

In framing a government for posterity as well as ourselves, we ought,
in those provisions which are designed to be permanent, to calculate,
not on temporary, but on permanent causes of expense. If this principle
be a just one our attention would be directed to a provision in favor
of the State governments for an annual sum of about two hundred
thousand pounds; while the exigencies of the Union could be susceptible
of no limits, even in imagination. In this view of the subject, by what
logic can it be maintained that the local governments ought to command,
in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the
extent of two hundred thousand pounds? To extend its power further, in
EXCLUSION of the authority of the Union, would be to take the resources
of the community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could have
no just or proper occasion for them.

Suppose, then, the convention had been inclined to proceed upon the
principle of a repartition of the objects of revenue, between the Union
and its members, in PROPORTION to their comparative necessities; what
particular fund could have been selected for the use of the States,
that would not either have been too much or too little too little for
their present, too much for their future wants? As to the line of
separation between external and internal taxes, this would leave to the
States, at a rough computation, the command of two thirds of the
resources of the community to defray from a tenth to a twentieth part
of its expenses; and to the Union, one third of the resources of the
community, to defray from nine tenths to nineteen twentieths of its
expenses. If we desert this boundary and content ourselves with leaving
to the States an exclusive power of taxing houses and lands, there
would still be a great disproportion between the MEANS and the END; the
possession of one third of the resources of the community to supply, at
most, one tenth of its wants. If any fund could have been selected and
appropriated, equal to and not greater than the object, it would have
been inadequate to the discharge of the existing debts of the
particular States, and would have left them dependent on the Union for
a provision for this purpose.

The preceding train of observation will justify the position which has
been elsewhere laid down, that “A CONCURRENT JURISDICTION in the
article of taxation was the only admissible substitute for an entire
subordination, in respect to this branch of power, of State authority
to that of the Union.” Any separation of the objects of revenue that
could have been fallen upon, would have amounted to a sacrifice of the
great INTERESTS of the Union to the POWER of the individual States. The
convention thought the concurrent jurisdiction preferable to that
subordination; and it is evident that it has at least the merit of
reconciling an indefinite constitutional power of taxation in the
Federal government with an adequate and independent power in the States
to provide for their own necessities. There remain a few other lights,
in which this important subject of taxation will claim a further
consideration.

PUBLIUS.




THE FEDERALIST.
No. XXXV.

The Same Subject Continued

(Concerning the General Power of Taxation)

For the Independent Journal.

HAMILTON


To the People of the State of New York:

Before we proceed to examine any other objections to an indefinite
power of taxation in the Union, I shall make one general remark; which
is, that if the jurisdiction of the national government, in the article
of revenue, should be restricted to particular objects, it would
naturally occasion an undue proportion of the public burdens to fall
upon those objects. Two evils would spring from this source: the
oppression of particular branches of industry; and an unequal
distribution of the taxes, as well among the several States as among
the citizens of the same State.

Suppose, as has been contended for, the federal power of taxation were
to be confined to duties on imports, it is evident that the government,
for want of being able to command other resources, would frequently be
tempted to extend these duties to an injurious excess. There are
persons who imagine that they can never be carried to too great a
length; since the higher they are, the more it is alleged they will
tend to discourage an extravagant consumption, to produce a favorable
balance of trade, and to promote domestic manufactures. But all
extremes are pernicious in various ways. Exorbitant duties on imported
articles would beget a general spirit of smuggling; which is always
prejudicial to the fair trader, and eventually to the revenue itself:
they tend to render other classes of the community tributary, in an
improper degree, to the manufacturing classes, to whom they give a
premature monopoly of the markets; they sometimes force industry out of
its more natural channels into others in which it flows with less
advantage; and in the last place, they oppress the merchant, who is
often obliged to pay them himself without any retribution from the
consumer. When the demand is equal to the quantity of goods at market,
the consumer generally pays the duty; but when the markets happen to be
overstocked, a great proportion falls upon the merchant, and sometimes
not only exhausts his profits, but breaks in upon his capital. I am apt
to think that a division of the duty, between the seller and the buyer,
more often happens than is commonly imagined. It is not always possible
to raise the price of a commodity in exact proportion to every
additional imposition laid upon it. The merchant, especially in a
country of small commercial capital, is often under a necessity of
keeping prices down in order to a more expeditious sale.

The maxim that the consumer is the payer, is so much oftener true than
the reverse of the proposition, that it is far more equitable that the
duties on imports should go into a common stock, than that they should
redound to the exclusive benefit of the importing States. But it is not
so generally true as to render it equitable, that those duties should
form the only national fund. When they are paid by the merchant they
operate as an additional tax upon the importing State, whose citizens
pay their proportion of them in the character of consumers. In this
view they are productive of inequality among the States; which
inequality would be increased with the increased extent of the duties.
The confinement of the national revenues to this species of imposts
would be attended with inequality, from a different cause, between the
manufacturing and the non-manufacturing States. The States which can go
farthest towards the supply of their own wants, by their own
manufactures, will not, according to their numbers or wealth, consume
so great a proportion of imported articles as those States which are
not in the same favorable situation. They would not, therefore, in this
mode alone contribute to the public treasury in a ratio to their
abilities. To make them do this it is necessary that recourse be had to
excises, the proper objects of which are particular kinds of
manufactures. New York is more deeply interested in these
considerations than such of her citizens as contend for limiting the
power of the Union to external taxation may be aware of. New York is an
importing State, and is not likely speedily to be, to any great extent,
a manufacturing State. She would, of course, suffer in a double light
from restraining the jurisdiction of the Union to commercial imposts.

So far as these observations tend to inculcate a danger of the import
duties being extended to an injurious extreme it may be observed,
conformably to a remark made in another part of these papers, that the
interest of the revenue itself would be a sufficient guard against such
an extreme. I readily admit that this would be the case, as long as
other resources were open; but if the avenues to them were closed,
HOPE, stimulated by necessity, would beget experiments, fortified by
rigorous precautions and additional penalties, which, for a time, would
have the intended effect, till there had been leisure to contrive
expedients to elude these new precautions. The first success would be
apt to inspire false opinions, which it might require a long course of
subsequent experience to correct. Necessity, especially in politics,
often occasions false hopes, false reasonings, and a system of measures
correspondingly erroneous. But even if this supposed excess should not
be a consequence of the limitation of the federal power of taxation,
the inequalities spoken of would still ensue, though not in the same
degree, from the other causes that have been noticed. Let us now return
to the examination of objections.

One which, if we may judge from the frequency of its repetition, seems
most to be relied on, is, that the House of Representatives is not
sufficiently numerous for the reception of all the different classes of
citizens, in order to combine the interests and feelings of every part
of the community, and to produce a due sympathy between the
representative body and its constituents. This argument presents itself
under a very specious and seducing form; and is well calculated to lay
hold of the prejudices of those to whom it is addressed. But when we
come to dissect it with attention, it will appear to be made up of
nothing but fair-sounding words. The object it seems to aim at is, in
the first place, impracticable, and in the sense in which it is
contended for, is unnecessary. I reserve for another place the
discussion of the question which relates to the sufficiency of the
representative body in respect to numbers, and shall content myself
with examining here the particular use which has been made of a
contrary supposition, in reference to the immediate subject of our
inquiries.

The idea of an actual representation of all classes of the people, by
persons of each class, is altogether visionary. Unless it were
expressly provided in the Constitution, that each different occupation
should send one or more members, the thing would never take place in
practice. Mechanics and manufacturers will always be inclined, with few
exceptions, to give their votes to merchants, in preference to persons
of their own professions or trades. Those discerning citizens are well
aware that the mechanic and manufacturing arts furnish the materials of
mercantile enterprise and industry. Many of them, indeed, are
immediately connected with the operations of commerce. They know that
the merchant is their natural patron and friend; and they are aware,
that however great the confidence they may justly feel in their own
good sense, their interests can be more effectually promoted by the
merchant than by themselves. They are sensible that their habits in
life have not been such as to give them those acquired endowments,
without which, in a deliberative assembly, the greatest natural
abilities are for the most part useless; and that the influence and
weight, and superior acquirements of the merchants render them more
equal to a contest with any spirit which might happen to infuse itself
into the public councils, unfriendly to the manufacturing and trading
interests. These considerations, and many others that might be
mentioned prove, and experience confirms it, that artisans and
manufacturers will commonly be disposed to bestow their votes upon
merchants and those whom they recommend. We must therefore consider
merchants as the natural representatives of all these classes of the
community.

With regard to the learned professions, little need be observed; they
truly form no distinct interest in society, and according to their
situation and talents, will be indiscriminately the objects of the
confidence and choice of each other, and of other parts of the
community.

Nothing remains but the landed interest; and this, in a political view,
and particularly in relation to taxes, I take to be perfectly united,
from the wealthiest landlord down to the poorest tenant. No tax can be
laid on land which will not affect the proprietor of millions of acres
as well as the proprietor of a single acre. Every landholder will
therefore have a common interest to keep the taxes on land as low as
possible; and common interest may always be reckoned upon as the surest
bond of sympathy. But if we even could suppose a distinction of
interest between the opulent landholder and the middling farmer, what
reason is there to conclude, that the first would stand a better chance
of being deputed to the national legislature than the last? If we take
fact as our guide, and look into our own senate and assembly, we shall
find that moderate proprietors of land prevail in both; nor is this
less the case in the senate, which consists of a smaller number, than
in the assembly, which is composed of a greater number. Where the
qualifications of the electors are the same, whether they have to
choose a small or a large number, their votes will fall upon those in
whom they have most confidence; whether these happen to be men of large
fortunes, or of moderate property, or of no property at all.

It is said to be necessary, that all classes of citizens should have
some of their own number in the representative body, in order that
their feelings and interests may be the better understood and attended
to. But we have seen that this will never happen under any arrangement
that leaves the votes of the people free. Where this is the case, the
representative body, with too few exceptions to have any influence on
the spirit of the government, will be composed of landholders,
merchants, and men of the learned professions. But where is the danger
that the interests and feelings of the different classes of citizens
will not be understood or attended to by these three descriptions of
men? Will not the landholder know and feel whatever will promote or
insure the interest of landed property? And will he not, from his own
interest in that species of property, be sufficiently prone to resist
every attempt to prejudice or encumber it? Will not the merchant
understand and be disposed to cultivate, as far as may be proper, the
interests of the mechanic and manufacturing arts, to which his commerce
is so nearly allied? Will not the man of the learned profession, who
will feel a neutrality to the rivalships between the different branches
of industry, be likely to prove an impartial arbiter between them,
ready to promote either, so far as it shall appear to him conducive to
the general interests of the society?

If we take into the account the momentary humors or dispositions which
may happen to prevail in particular parts of the society, and to which
a wise administration will never be inattentive, is the man whose
situation leads to extensive inquiry and information less likely to be
a competent judge of their nature, extent, and foundation than one
whose observation does not travel beyond the circle of his neighbors
and acquaintances? Is it not natural that a man who is a candidate for
the favor of the people, and who is dependent on the suffrages of his
fellow-citizens for the continuance of his public honors, should take
care to inform himself of their dispositions and inclinations, and
should be willing to allow them their proper degree of influence upon
his conduct? This dependence, and the necessity of being bound himself,
and his posterity, by the laws to which he gives his assent, are the
true, and they are the strong chords of sympathy between the
representative and the constituent.

There is no part of the administration of government that requires
extensive information and a thorough knowledge of the principles of
political economy, so much as the business of taxation. The man who
understands those principles best will be least likely to resort to
oppressive expedients, or sacrifice any particular class of citizens to
the procurement of revenue. It might be demonstrated that the most
productive system of finance will always be the least burdensome. There
can be no doubt that in order to a judicious exercise of the power of
taxation, it is necessary that the person in whose hands it should be
acquainted with the general genius, habits, and modes of thinking of
the people at large, and with the resources of the country. And this is
all that can be reasonably meant by a knowledge of the interests and
feelings of the people. In any other sense the proposition has either
no meaning, or an absurd one. And in that sense let every considerate
citizen judge for himself where the requisite qualification is most
likely to be found.

PUBLIUS.




THE FEDERALIST.
No. XXXVI.

The Same Subject Continued

(Concerning the General Power of Taxation)

From the New York Packet.

Tuesday January 8, 1788.

HAMILTON


To the People of the State of New York:

We have seen that the result of the observations, to which the
foregoing number has been principally devoted, is, that from the
natural operation of the different interests and views of the various
classes of the community, whether the representation of the people be
more or less numerous, it will consist almost entirely of proprietors
of land, of merchants, and of members of the learned professions, who
will truly represent all those different interests and views. If it
should be objected that we have seen other descriptions of men in the
local legislatures, I answer that it is admitted there are exceptions
to the rule, but not in sufficient number to influence the general
complexion or character of the government. There are strong minds in
every walk of life that will rise superior to the disadvantages of
situation, and will command the tribute due to their merit, not only
from the classes to which they particularly belong, but from the
society in general. The door ought to be equally open to all; and I
trust, for the credit of human nature, that we shall see examples of
such vigorous plants flourishing in the soil of federal as well as of
State legislation; but occasional instances of this sort will not
render the reasoning founded upon the general course of things, less
conclusive.

The subject might be placed in several other lights that would all lead
to the same result; and in particular it might be asked, What greater
affinity or relation of interest can be conceived between the carpenter
and blacksmith, and the linen manufacturer or stocking weaver, than
between the merchant and either of them? It is notorious that there are
often as great rivalships between different branches of the mechanic or
manufacturing arts as there are between any of the departments of labor
and industry; so that, unless the representative body were to be far
more numerous than would be consistent with any idea of regularity or
wisdom in its deliberations, it is impossible that what seems to be the
spirit of the objection we have been considering should ever be
realized in practice. But I forbear to dwell any longer on a matter
which has hitherto worn too loose a garb to admit even of an accurate
inspection of its real shape or tendency.

There is another objection of a somewhat more precise nature that
claims our attention. It has been asserted that a power of internal
taxation in the national legislature could never be exercised with
advantage, as well from the want of a sufficient knowledge of local
circumstances, as from an interference between the revenue laws of the
Union and of the particular States. The supposition of a want of proper
knowledge seems to be entirely destitute of foundation. If any question
is depending in a State legislature respecting one of the counties,
which demands a knowledge of local details, how is it acquired? No
doubt from the information of the members of the county. Cannot the
like knowledge be obtained in the national legislature from the
representatives of each State? And is it not to be presumed that the
men who will generally be sent there will be possessed of the necessary
degree of intelligence to be able to communicate that information? Is
the knowledge of local circumstances, as applied to taxation, a minute
topographical acquaintance with all the mountains, rivers, streams,
highways, and bypaths in each State; or is it a general acquaintance
with its situation and resources, with the state of its agriculture,
commerce, manufactures, with the nature of its products and
consumptions, with the different degrees and kinds of its wealth,
property, and industry?

Nations in general, even under governments of the more popular kind,
usually commit the administration of their finances to single men or to
boards composed of a few individuals, who digest and prepare, in the
first instance, the plans of taxation, which are afterwards passed into
laws by the authority of the sovereign or legislature.

Inquisitive and enlightened statesmen are deemed everywhere best
qualified to make a judicious selection of the objects proper for
revenue; which is a clear indication, as far as the sense of mankind
can have weight in the question, of the species of knowledge of local
circumstances requisite to the purposes of taxation.

The taxes intended to be comprised under the general denomination of
internal taxes may be subdivided into those of the DIRECT and those of
the INDIRECT kind. Though the objection be made to both, yet the
reasoning upon it seems to be confined to the former branch. And
indeed, as to the latter, by which must be understood duties and
excises on articles of consumption, one is at a loss to conceive what
can be the nature of the difficulties apprehended. The knowledge
relating to them must evidently be of a kind that will either be
suggested by the nature of the article itself, or can easily be
procured from any well-informed man, especially of the mercantile
class. The circumstances that may distinguish its situation in one
State from its situation in another must be few, simple, and easy to be
comprehended. The principal thing to be attended to, would be to avoid
those articles which had been previously appropriated to the use of a
particular State; and there could be no difficulty in ascertaining the
revenue system of each. This could always be known from the respective
codes of laws, as well as from the information of the members from the
several States.

The objection, when applied to real property or to houses and lands,
appears to have, at first sight, more foundation, but even in this view
it will not bear a close examination. Land taxes are co monly laid in
one of two modes, either by ACTUAL valuations, permanent or periodical,
or by OCCASIONAL assessments, at the discretion, or according to the
best judgment, of certain officers whose duty it is to make them. In
either case, the EXECUTION of the business, which alone requires the
knowledge of local details, must be devolved upon discreet persons in
the character of commissioners or assessors, elected by the people or
appointed by the government for the purpose. All that the law can do
must be to name the persons or to prescribe the manner of their
election or appointment, to fix their numbers and qualifications and to
draw the general outlines of their powers and duties. And what is there
in all this that cannot as well be performed by the national
legislature as by a State legislature? The attention of either can only
reach to general principles; local details, as already observed, must
be referred to those who are to execute the plan.

But there is a simple point of view in which this matter may be placed
that must be altogether satisfactory. The national legislature can make
use of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying
and collecting this species of taxes in each State can, in all its
parts, be adopted and employed by the federal government.

Let it be recollected that the proportion of these taxes is not to be
left to the discretion of the national legislature, but is to be
determined by the numbers of each State, as described in the second
section of the first article. An actual census or enumeration of the
people must furnish the rule, a circumstance which effectually shuts
the door to partiality or oppression. The abuse of this power of
taxation seems to have been provided against with guarded
circumspection. In addition to the precaution just mentioned, there is
a provision that “all duties, imposts, and excises shall be UNIFORM
throughout the United States.”

It has been very properly observed by different speakers and writers on
the side of the Constitution, that if the exercise of the power of
internal taxation by the Union should be discovered on experiment to be
really inconvenient, the federal government may then forbear the use of
it, and have recourse to requisitions in its stead. By way of answer to
this, it has been triumphantly asked, Why not in the first instance
omit that ambiguous power, and rely upon the latter resource? Two solid
answers may be given. The first is, that the exercise of that power, if
convenient, will be preferable, because it will be more effectual; and
it is impossible to prove in theory, or otherwise than by the
experiment, that it cannot be advantageously exercised. The contrary,
indeed, appears most probable. The second answer is, that the existence
of such a power in the Constitution will have a strong influence in
giving efficacy to requisitions. When the States know that the Union
can apply itself without their agency, it will be a powerful motive for
exertion on their part.

As to the interference of the revenue laws of the Union, and of its
members, we have already seen that there can be no clashing or
repugnancy of authority. The laws cannot, therefore, in a legal sense,
interfere with each other; and it is far from impossible to avoid an
interference even in the policy of their different systems. An
effectual expedient for this purpose will be, mutually, to abstain from
those objects which either side may have first had recourse to. As
neither can CONTROL the other, each will have an obvious and sensible
interest in this reciprocal forbearance. And where there is an
IMMEDIATE common interest, we may safely count upon its operation. When
the particular debts of the States are done away, and their expenses
come to be limited within their natural compass, the possibility almost
of interference will vanish. A small land tax will answer the purpose
of the States, and will be their most simple and most fit resource.

Many spectres have been raised out of this power of internal taxation,
to excite the apprehensions of the people: double sets of revenue
officers, a duplication of their burdens by double taxations, and the
frightful forms of odious and oppressive poll-taxes, have been played
off with all the ingenious dexterity of political legerdemain.

As to the first point, there are two cases in which there can be no
room for double sets of officers: one, where the right of imposing the
tax is exclusively vested in the Union, which applies to the duties on
imports; the other, where the object has not fallen under any State
regulation or provision, which may be applicable to a variety of
objects. In other cases, the probability is that the United States will
either wholly abstain from the objects preoccupied for local purposes,
or will make use of the State officers and State regulations for
collecting the additional imposition. This will best answer the views
of revenue, because it will save expense in the collection, and will
best avoid any occasion of disgust to the State governments and to the
people. At all events, here is a practicable expedient for avoiding
such an inconvenience; and nothing more can be required than to show
that evils predicted to not necessarily result from the plan.

As to any argument derived from a supposed system of influence, it is a
sufficient answer to say that it ought not to be presumed; but the
supposition is susceptible of a more precise answer. If such a spirit
should infest the councils of the Union, the most certain road to the
accomplishment of its aim would be to employ the State officers as much
as possible, and to attach them to the Union by an accumulation of
their emoluments. This would serve to turn the tide of State influence
into the channels of the national government, instead of making federal
influence flow in an opposite and adverse current. But all suppositions
of this kind are invidious, and ought to be banished from the
consideration of the great question before the people. They can answer
no other end than to cast a mist over the truth.

As to the suggestion of double taxation, the answer is plain. The wants
of the Union are to be supplied in one way or another; if to be done by
the authority of the federal government, it will not be to be done by
that of the State government. The quantity of taxes to be paid by the
community must be the same in either case; with this advantage, if the
provision is to be made by the Union that the capital resource of
commercial imposts, which is the most convenient branch of revenue, can
be prudently improved to a much greater extent under federal than under
State regulation, and of course will render it less necessary to recur
to more inconvenient methods; and with this further advantage, that as
far as there may be any real difficulty in the exercise of the power of
internal taxation, it will impose a disposition to greater care in the
choice and arrangement of the means; and must naturally tend to make it
a fixed point of policy in the national administration to go as far as
may be practicable in making the luxury of the rich tributary to the
public treasury, in order to diminish the necessity of those
impositions which might create dissatisfaction in the poorer and most
numerous classes of the society. Happy it is when the interest which
the government has in the preservation of its own power, coincides with
a proper distribution of the public burdens, and tends to guard the
least wealthy part of the community from oppression!

As to poll taxes, I, without scruple, confess my disapprobation of
them; and though they have prevailed from an early period in those
States[1] which have uniformly been the most tenacious of their rights,
I should lament to see them introduced into practice under the national
government. But does it follow because there is a power to lay them
that they will actually be laid? Every State in the Union has power to
impose taxes of this kind; and yet in several of them they are unknown
in practice. Are the State governments to be stigmatized as tyrannies,
because they possess this power? If they are not, with what propriety
can the like power justify such a charge against the national
government, or even be urged as an obstacle to its adoption? As little
friendly as I am to the species of imposition, I still feel a thorough
conviction that the power of having recourse to it ought to exist in
the federal government. There are certain emergencies of nations, in
which expedients, that in the ordinary state of things ought to be
forborne, become essential to the public weal. And the government, from
the possibility of such emergencies, ought ever to have the option of
making use of them. The real scarcity of objects in this country, which
may be considered as productive sources of revenue, is a reason
peculiar to itself, for not abridging the discretion of the national
councils in this respect. There may exist certain critical and
tempestuous conjunctures of the State, in which a poll tax may become
an inestimable resource. And as I know nothing to exempt this portion
of the globe from the common calamities that have befallen other parts
of it, I acknowledge my aversion to every project that is calculated to
disarm the government of a single weapon, which in any possible
contingency might be usefully employed for the general defense and
security.

I have now gone through the examination of such of the powers proposed
to be vested in the United States, which may be considered as having an
immediate relation to the energy of the government; and have endeavored
to answer the principal objections which have been made to them. I have
passed over in silence those minor authorities, which are either too
inconsiderable to have been thought worthy of the hostilities of the
opponents of the Constitution, or of too manifest propriety to admit of
controversy. The mass of judiciary power, however, might have claimed
an investigation under this head, had it not been for the consideration
that its organization and its extent may be more advantageously
considered in connection. This has determined me to refer it to the
branch of our inquiries upon which we shall next enter.

PUBLIUS.

 [1] The New England States.




THE FEDERALIST.
No. XXXVII.

Concerning the Difficulties of the Convention in Devising a Proper Form
of Government

From the Daily Advertiser.

Friday, January 11, 1788.

MADISON


To the People of the State of New York:

In reviewing the defects of the existing Confederation, and showing
that they cannot be supplied by a government of less energy than that
before the public, several of the most important principles of the
latter fell of course under consideration. But as the ultimate object
of these papers is to determine clearly and fully the merits of this
Constitution, and the expediency of adopting it, our plan cannot be
complete without taking a more critical and thorough survey of the work
of the convention, without examining it on all its sides, comparing it
in all its parts, and calculating its probable effects.

That this remaining task may be executed under impressions conducive to
a just and fair result, some reflections must in this place be
indulged, which candor previously suggests.

It is a misfortune, inseparable from human affairs, that public
measures are rarely investigated with that spirit of moderation which
is essential to a just estimate of their real tendency to advance or
obstruct the public good; and that this spirit is more apt to be
diminished than promoted, by those occasions which require an unusual
exercise of it. To those who have been led by experience to attend to
this consideration, it could not appear surprising, that the act of the
convention, which recommends so many important changes and innovations,
which may be viewed in so many lights and relations, and which touches
the springs of so many passions and interests, should find or excite
dispositions unfriendly, both on one side and on the other, to a fair
discussion and accurate judgment of its merits. In some, it has been
too evident from their own publications, that they have scanned the
proposed Constitution, not only with a predisposition to censure, but
with a predetermination to condemn; as the language held by others
betrays an opposite predetermination or bias, which must render their
opinions also of little moment in the question. In placing, however,
these different characters on a level, with respect to the weight of
their opinions, I wish not to insinuate that there may not be a
material difference in the purity of their intentions. It is but just
to remark in favor of the latter description, that as our situation is
universally admitted to be peculiarly critical, and to require
indispensably that something should be done for our relief, the
predetermined patron of what has been actually done may have taken his
bias from the weight of these considerations, as well as from
considerations of a sinister nature. The predetermined adversary, on
the other hand, can have been governed by no venial motive whatever.
The intentions of the first may be upright, as they may on the contrary
be culpable. The views of the last cannot be upright, and must be
culpable. But the truth is, that these papers are not addressed to
persons falling under either of these characters. They solicit the
attention of those only, who add to a sincere zeal for the happiness of
their country, a temper favorable to a just estimate of the means of
promoting it.

Persons of this character will proceed to an examination of the plan
submitted by the convention, not only without a disposition to find or
to magnify faults; but will see the propriety of reflecting, that a
faultless plan was not to be expected. Nor will they barely make
allowances for the errors which may be chargeable on the fallibility to
which the convention, as a body of men, were liable; but will keep in
mind, that they themselves also are but men, and ought not to assume an
infallibility in rejudging the fallible opinions of others.

With equal readiness will it be perceived, that besides these
inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred to
the convention.

The novelty of the undertaking immediately strikes us. It has been
shown in the course of these papers, that the existing Confederation is
founded on principles which are fallacious; that we must consequently
change this first foundation, and with it the superstructure resting
upon it. It has been shown, that the other confederacies which could be
consulted as precedents have been vitiated by the same erroneous
principles, and can therefore furnish no other light than that of
beacons, which give warning of the course to be shunned, without
pointing out that which ought to be pursued. The most that the
convention could do in such a situation, was to avoid the errors
suggested by the past experience of other countries, as well as of our
own; and to provide a convenient mode of rectifying their own errors,
as future experiences may unfold them.

Among the difficulties encountered by the convention, a very important
one must have lain in combining the requisite stability and energy in
government, with the inviolable attention due to liberty and to the
republican form. Without substantially accomplishing this part of their
undertaking, they would have very imperfectly fulfilled the object of
their appointment, or the expectation of the public; yet that it could
not be easily accomplished, will be denied by no one who is unwilling
to betray his ignorance of the subject. Energy in government is
essential to that security against external and internal danger, and to
that prompt and salutary execution of the laws which enter into the
very definition of good government. Stability in government is
essential to national character and to the advantages annexed to it, as
well as to that repose and confidence in the minds of the people, which
are among the chief blessings of civil society. An irregular and
mutable legislation is not more an evil in itself than it is odious to
the people; and it may be pronounced with assurance that the people of
this country, enlightened as they are with regard to the nature, and
interested, as the great body of them are, in the effects of good
government, will never be satisfied till some remedy be applied to the
vicissitudes and uncertainties which characterize the State
administrations. On comparing, however, these valuable ingredients with
the vital principles of liberty, we must perceive at once the
difficulty of mingling them together in their due proportions. The
genius of republican liberty seems to demand on one side, not only that
all power should be derived from the people, but that those intrusted
with it should be kept in independence on the people, by a short
duration of their appointments; and that even during this short period
the trust should be placed not in a few, but a number of hands.
Stability, on the contrary, requires that the hands in which power is
lodged should continue for a length of time the same. A frequent change
of men will result from a frequent return of elections; and a frequent
change of measures from a frequent change of men: whilst energy in
government requires not only a certain duration of power, but the
execution of it by a single hand.

How far the convention may have succeeded in this part of their work,
will better appear on a more accurate view of it. From the cursory view
here taken, it must clearly appear to have been an arduous part.

Not less arduous must have been the task of marking the proper line of
partition between the authority of the general and that of the State
governments. Every man will be sensible of this difficulty, in
proportion as he has been accustomed to contemplate and discriminate
objects extensive and complicated in their nature. The faculties of the
mind itself have never yet been distinguished and defined, with
satisfactory precision, by all the efforts of the most acute and
metaphysical philosophers. Sense, perception, judgment, desire,
volition, memory, imagination, are found to be separated by such
delicate shades and minute gradations that their boundaries have eluded
the most subtle investigations, and remain a pregnant source of
ingenious disquisition and controversy. The boundaries between the
great kingdom of nature, and, still more, between the various
provinces, and lesser portions, into which they are subdivided, afford
another illustration of the same important truth. The most sagacious
and laborious naturalists have never yet succeeded in tracing with
certainty the line which separates the district of vegetable life from
the neighboring region of unorganized matter, or which marks the
termination of the former and the commencement of the animal empire. A
still greater obscurity lies in the distinctive characters by which the
objects in each of these great departments of nature have been arranged
and assorted.

When we pass from the works of nature, in which all the delineations
are perfectly accurate, and appear to be otherwise only from the
imperfection of the eye which surveys them, to the institutions of man,
in which the obscurity arises as well from the object itself as from
the organ by which it is contemplated, we must perceive the necessity
of moderating still further our expectations and hopes from the efforts
of human sagacity. Experience has instructed us that no skill in the
science of government has yet been able to discriminate and define,
with sufficient certainty, its three great provinces the legislative,
executive, and judiciary; or even the privileges and powers of the
different legislative branches. Questions daily occur in the course of
practice, which prove the obscurity which reins in these subjects, and
which puzzle the greatest adepts in political science.

The experience of ages, with the continued and combined labors of the
most enlightened legislatures and jurists, has been equally
unsuccessful in delineating the several objects and limits of different
codes of laws and different tribunals of justice. The precise extent of
the common law, and the statute law, the maritime law, the
ecclesiastical law, the law of corporations, and other local laws and
customs, remains still to be clearly and finally established in Great
Britain, where accuracy in such subjects has been more industriously
pursued than in any other part of the world. The jurisdiction of her
several courts, general and local, of law, of equity, of admiralty,
etc., is not less a source of frequent and intricate discussions,
sufficiently denoting the indeterminate limits by which they are
respectively circumscribed. All new laws, though penned with the
greatest technical skill, and passed on the fullest and most mature
deliberation, are considered as more or less obscure and equivocal,
until their meaning be liquidated and ascertained by a series of
particular discussions and adjudications. Besides the obscurity arising
from the complexity of objects, and the imperfection of the human
faculties, the medium through which the conceptions of men are conveyed
to each other adds a fresh embarrassment. The use of words is to
express ideas. Perspicuity, therefore, requires not only that the ideas
should be distinctly formed, but that they should be expressed by words
distinctly and exclusively appropriate to them. But no language is so
copious as to supply words and phrases for every complex idea, or so
correct as not to include many equivocally denoting different ideas.
Hence it must happen that however accurately objects may be
discriminated in themselves, and however accurately the discrimination
may be considered, the definition of them may be rendered inaccurate by
the inaccuracy of the terms in which it is delivered. And this
unavoidable inaccuracy must be greater or less, according to the
complexity and novelty of the objects defined. When the Almighty
himself condescends to address mankind in their own language, his
meaning, luminous as it must be, is rendered dim and doubtful by the
cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions:
indistinctness of the object, imperfection of the organ of conception,
inadequateness of the vehicle of ideas. Any one of these must produce a
certain degree of obscurity. The convention, in delineating the
boundary between the federal and State jurisdictions, must have
experienced the full effect of them all.

To the difficulties already mentioned may be added the interfering
pretensions of the larger and smaller States. We cannot err in
supposing that the former would contend for a participation in the
government, fully proportioned to their superior wealth and importance;
and that the latter would not be less tenacious of the equality at
present enjoyed by them. We may well suppose that neither side would
entirely yield to the other, and consequently that the struggle could
be terminated only by compromise. It is extremely probable, also, that
after the ratio of representation had been adjusted, this very
compromise must have produced a fresh struggle between the same
parties, to give such a turn to the organization of the government, and
to the distribution of its powers, as would increase the importance of
the branches, in forming which they had respectively obtained the
greatest share of influence. There are features in the Constitution
which warrant each of these suppositions; and as far as either of them
is well founded, it shows that the convention must have been compelled
to sacrifice theoretical propriety to the force of extraneous
considerations.

Nor could it have been the large and small States only, which would
marshal themselves in opposition to each other on various points. Other
combinations, resulting from a difference of local position and policy,
must have created additional difficulties. As every State may be
divided into different districts, and its citizens into different
classes, which give birth to contending interests and local jealousies,
so the different parts of the United States are distinguished from each
other by a variety of circumstances, which produce a like effect on a
larger scale. And although this variety of interests, for reasons
sufficiently explained in a former paper, may have a salutary influence
on the administration of the government when formed, yet every one must
be sensible of the contrary influence, which must have been experienced
in the task of forming it.

Would it be wonderful if, under the pressure of all these difficulties,
the convention should have been forced into some deviations from that
artificial structure and regular symmetry which an abstract view of the
subject might lead an ingenious theorist to bestow on a Constitution
planned in his closet or in his imagination? The real wonder is that so
many difficulties should have been surmounted, and surmounted with a
unanimity almost as unprecedented as it must have been unexpected. It
is impossible for any man of candor to reflect on this circumstance
without partaking of the astonishment. It is impossible for the man of
pious reflection not to perceive in it a finger of that Almighty hand
which has been so frequently and signally extended to our relief in the
critical stages of the revolution.

We had occasion, in a former paper, to take notice of the repeated
trials which have been unsuccessfully made in the United Netherlands
for reforming the baneful and notorious vices of their constitution.
The history of almost all the great councils and consultations held
among mankind for reconciling their discordant opinions, assuaging
their mutual jealousies, and adjusting their respective interests, is a
history of factions, contentions, and disappointments, and may be
classed among the most dark and degraded pictures which display the
infirmities and depravities of the human character. If, in a few
scattered instances, a brighter aspect is presented, they serve only as
exceptions to admonish us of the general truth; and by their lustre to
darken the gloom of the adverse prospect to which they are contrasted.
In revolving the causes from which these exceptions result, and
applying them to the particular instances before us, we are necessarily
led to two important conclusions. The first is, that the convention
must have enjoyed, in a very singular degree, an exemption from the
pestilential influence of party animosities the disease most incident
to deliberative bodies, and most apt to contaminate their proceedings.
The second conclusion is that all the deputations composing the
convention were satisfactorily accommodated by the final act, or were
induced to accede to it by a deep conviction of the necessity of
sacrificing private opinions and partial interests to the public good,
and by a despair of seeing this necessity diminished by delays or by
new experiments.

PUBLIUS




THE FEDERALIST.
No. XXXVIII.

The Same Subject Continued, and the Incoherence of the Objections to
the New Plan Exposed

From the New York Packet.

Tuesday, January 15, 1788.

MADISON


To the People of the State of New York:

It is not a little remarkable that in every case reported by ancient
history, in which government has been established with deliberation and
consent, the task of framing it has not been committed to an assembly
of men, but has been performed by some individual citizen of preeminent
wisdom and approved integrity.

Minos, we learn, was the primitive founder of the government of Crete,
as Zaleucus was of that of the Locrians. Theseus first, and after him
Draco and Solon, instituted the government of Athens. Lycurgus was the
lawgiver of Sparta. The foundation of the original government of Rome
was laid by Romulus, and the work completed by two of his elective
successors, Numa and Tullius Hostilius. On the abolition of royalty the
consular administration was substituted by Brutus, who stepped forward
with a project for such a reform, which, he alleged, had been prepared
by Tullius Hostilius, and to which his address obtained the assent and
ratification of the senate and people. This remark is applicable to
confederate governments also. Amphictyon, we are told, was the author
of that which bore his name. The Achaean league received its first
birth from Achaeus, and its second from Aratus.

What degree of agency these reputed lawgivers might have in their
respective establishments, or how far they might be clothed with the
legitimate authority of the people, cannot in every instance be
ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with
indefinite powers to reform its government and laws. And Solon,
according to Plutarch, was in a manner compelled, by the universal
suffrage of his fellow-citizens, to take upon him the sole and absolute
power of new-modeling the constitution. The proceedings under Lycurgus
were less regular; but as far as the advocates for a regular reform
could prevail, they all turned their eyes towards the single efforts of
that celebrated patriot and sage, instead of seeking to bring about a
revolution by the intervention of a deliberative body of citizens.

Whence could it have proceeded, that a people, jealous as the Greeks
were of their liberty, should so far abandon the rules of caution as to
place their destiny in the hands of a single citizen? Whence could it
have proceeded, that the Athenians, a people who would not suffer an
army to be commanded by fewer than ten generals, and who required no
other proof of danger to their liberties than the illustrious merit of
a fellow-citizen, should consider one illustrious citizen as a more
eligible depositary of the fortunes of themselves and their posterity,
than a select body of citizens, from whose common deliberations more
wisdom, as well as more safety, might have been expected? These
questions cannot be fully answered, without supposing that the fears of
discord and disunion among a number of counsellors exceeded the
apprehension of treachery or incapacity in a single individual. History
informs us, likewise, of the difficulties with which these celebrated
reformers had to contend, as well as the expedients which they were
obliged to employ in order to carry their reforms into effect. Solon,
who seems to have indulged a more temporizing policy, confessed that he
had not given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus, more
true to his object, was under the necessity of mixing a portion of
violence with the authority of superstition, and of securing his final
success by a voluntary renunciation, first of his country, and then of
his life. If these lessons teach us, on one hand, to admire the
improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on the
other, to admonish us of the hazards and difficulties incident to such
experiments, and of the great imprudence of unnecessarily multiplying
them.

Is it an unreasonable conjecture, that the errors which may be
contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated and
difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently such as will not be ascertained
until an actual trial shall have pointed them out? This conjecture is
rendered probable, not only by many considerations of a general nature,
but by the particular case of the Articles of Confederation. It is
observable that among the numerous objections and amendments suggested
by the several States, when these articles were submitted for their
ratification, not one is found which alludes to the great and radical
error which on actual trial has discovered itself. And if we except the
observations which New Jersey was led to make, rather by her local
situation, than by her peculiar foresight, it may be questioned whether
a single suggestion was of sufficient moment to justify a revision of
the system. There is abundant reason, nevertheless, to suppose that
immaterial as these objections were, they would have been adhered to
with a very dangerous inflexibility, in some States, had not a zeal for
their opinions and supposed interests been stifled by the more powerful
sentiment of selfpreservation. One State, we may remember, persisted
for several years in refusing her concurrence, although the enemy
remained the whole period at our gates, or rather in the very bowels of
our country. Nor was her pliancy in the end effected by a less motive,
than the fear of being chargeable with protracting the public
calamities, and endangering the event of the contest. Every candid
reader will make the proper reflections on these important facts.

A patient who finds his disorder daily growing worse, and that an
efficacious remedy can no longer be delayed without extreme danger,
after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable
of administering relief, and best entitled to his confidence. The
physicians attend; the case of the patient is carefully examined; a
consultation is held; they are unanimously agreed that the symptoms are
critical, but that the case, with proper and timely relief, is so far
from being desperate, that it may be made to issue in an improvement of
his constitution. They are equally unanimous in prescribing the remedy,
by which this happy effect is to be produced. The prescription is no
sooner made known, however, than a number of persons interpose, and,
without denying the reality or danger of the disorder, assure the
patient that the prescription will be poison to his constitution, and
forbid him, under pain of certain death, to make use of it. Might not
the patient reasonably demand, before he ventured to follow this
advice, that the authors of it should at least agree among themselves
on some other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would he not
act prudently in trying the experiment unanimously recommended by the
latter, rather than be hearkening to those who could neither deny the
necessity of a speedy remedy, nor agree in proposing one?

Such a patient and in such a situation is America at this moment. She
has been sensible of her malady. She has obtained a regular and
unanimous advice from men of her own deliberate choice. And she is
warned by others against following this advice under pain of the most
fatal consequences. Do the monitors deny the reality of her danger? No.
Do they deny the necessity of some speedy and powerful remedy? No. Are
they agreed, are any two of them agreed, in their objections to the
remedy proposed, or in the proper one to be substituted? Let them speak
for themselves. This one tells us that the proposed Constitution ought
to be rejected, because it is not a confederation of the States, but a
government over individuals. Another admits that it ought to be a
government over individuals to a certain extent, but by no means to the
extent proposed. A third does not object to the government over
individuals, or to the extent proposed, but to the want of a bill of
rights. A fourth concurs in the absolute necessity of a bill of rights,
but contends that it ought to be declaratory, not of the personal
rights of individuals, but of the rights reserved to the States in
their political capacity. A fifth is of opinion that a bill of rights
of any sort would be superfluous and misplaced, and that the plan would
be unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly
against the unreasonable equality of representation in the Senate. An
objector in a small State is equally loud against the dangerous
inequality in the House of Representatives. From this quarter, we are
alarmed with the amazing expense, from the number of persons who are to
administer the new government. From another quarter, and sometimes from
the same quarter, on another occasion, the cry is that the Congress
will be but a shadow of a representation, and that the government would
be far less objectionable if the number and the expense were doubled. A
patriot in a State that does not import or export, discerns insuperable
objections against the power of direct taxation. The patriotic
adversary in a State of great exports and imports, is not less
dissatisfied that the whole burden of taxes may be thrown on
consumption. This politician discovers in the Constitution a direct and
irresistible tendency to monarchy; that is equally sure it will end in
aristocracy. Another is puzzled to say which of these shapes it will
ultimately assume, but sees clearly it must be one or other of them;
whilst a fourth is not wanting, who with no less confidence affirms
that the Constitution is so far from having a bias towards either of
these dangers, that the weight on that side will not be sufficient to
keep it upright and firm against its opposite propensities. With
another class of adversaries to the Constitution the language is that
the legislative, executive, and judiciary departments are intermixed in
such a manner as to contradict all the ideas of regular government and
all the requisite precautions in favor of liberty. Whilst this
objection circulates in vague and general expressions, there are but a
few who lend their sanction to it. Let each one come forward with his
particular explanation, and scarce any two are exactly agreed upon the
subject. In the eyes of one the junction of the Senate with the
President in the responsible function of appointing to offices, instead
of vesting this executive power in the Executive alone, is the vicious
part of the organization. To another, the exclusion of the House of
Representatives, whose numbers alone could be a due security against
corruption and partiality in the exercise of such a power, is equally
obnoxious. With another, the admission of the President into any share
of a power which ever must be a dangerous engine in the hands of the
executive magistrate, is an unpardonable violation of the maxims of
republican jealousy. No part of the arrangement, according to some, is
more inadmissible than the trial of impeachments by the Senate, which
is alternately a member both of the legislative and executive
departments, when this power so evidently belonged to the judiciary
department. “We concur fully,” reply others, “in the objection to this
part of the plan, but we can never agree that a reference of
impeachments to the judiciary authority would be an amendment of the
error. Our principal dislike to the organization arises from the
extensive powers already lodged in that department.” Even among the
zealous patrons of a council of state the most irreconcilable variance
is discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of a
small number to be appointed by the most numerous branch of the
legislature. Another would prefer a larger number, and considers it as
a fundamental condition that the appointment should be made by the
President himself.

As it can give no umbrage to the writers against the plan of the
federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a
wiser and better plan might and ought to be substituted. Let us further
suppose that their country should concur, both in this favorable
opinion of their merits, and in their unfavorable opinion of the
convention; and should accordingly proceed to form them into a second
convention, with full powers, and for the express purpose of revising
and remoulding the work of the first. Were the experiment to be
seriously made, though it required some effort to view it seriously
even in fiction, I leave it to be decided by the sample of opinions
just exhibited, whether, with all their enmity to their predecessors,
they would, in any one point, depart so widely from their example, as
in the discord and ferment that would mark their own deliberations; and
whether the Constitution, now before the public, would not stand as
fair a chance for immortality, as Lycurgus gave to that of Sparta, by
making its change to depend on his own return from exile and death, if
it were to be immediately adopted, and were to continue in force, not
until a BETTER, but until ANOTHER should be agreed upon by this new
assembly of lawgivers.

It is a matter both of wonder and regret, that those who raise so many
objections against the new Constitution should never call to mind the
defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold,
because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building,
because the latter had not a porch to it, or because some of the rooms
might be a little larger or smaller, or the ceilings a little higher or
lower than his fancy would have planned them. But waiving illustrations
of this sort, is it not manifest that most of the capital objections
urged against the new system lie with tenfold weight against the
existing Confederation? Is an indefinite power to raise money dangerous
in the hands of the federal government? The present Congress can make
requisitions to any amount they please, and the States are
constitutionally bound to furnish them; they can emit bills of credit
as long as they will pay for the paper; they can borrow, both abroad
and at home, as long as a shilling will be lent. Is an indefinite power
to raise troops dangerous? The Confederation gives to Congress that
power also; and they have already begun to make use of it. Is it
improper and unsafe to intermix the different powers of government in
the same body of men? Congress, a single body of men, are the sole
depositary of all the federal powers. Is it particularly dangerous to
give the keys of the treasury, and the command of the army, into the
same hands? The Confederation places them both in the hands of
Congress. Is a bill of rights essential to liberty? The Confederation
has no bill of rights. Is it an objection against the new Constitution,
that it empowers the Senate, with the concurrence of the Executive, to
make treaties which are to be the laws of the land? The existing
Congress, without any such control, can make treaties which they
themselves have declared, and most of the States have recognized, to be
the supreme law of the land. Is the importation of slaves permitted by
the new Constitution for twenty years? By the old it is permitted
forever.

I shall be told, that however dangerous this mixture of powers may be
in theory, it is rendered harmless by the dependence of Congress on the
State for the means of carrying them into practice; that however large
the mass of powers may be, it is in fact a lifeless mass. Then, say I,
in the first place, that the Confederation is chargeable with the still
greater folly of declaring certain powers in the federal government to
be absolutely necessary, and at the same time rendering them absolutely
nugatory; and, in the next place, that if the Union is to continue, and
no better government be substituted, effective powers must either be
granted to, or assumed by, the existing Congress; in either of which
events, the contrast just stated will hold good. But this is not all.
Out of this lifeless mass has already grown an excrescent power, which
tends to realize all the dangers that can be apprehended from a
defective construction of the supreme government of the Union. It is
now no longer a point of speculation and hope, that the Western
territory is a mine of vast wealth to the United States; and although
it is not of such a nature as to extricate them from their present
distresses, or for some time to come, to yield any regular supplies for
the public expenses, yet must it hereafter be able, under proper
management, both to effect a gradual discharge of the domestic debt,
and to furnish, for a certain period, liberal tributes to the federal
treasury. A very large proportion of this fund has been already
surrendered by individual States; and it may with reason be expected
that the remaining States will not persist in withholding similar
proofs of their equity and generosity. We may calculate, therefore,
that a rich and fertile country, of an area equal to the inhabited
extent of the United States, will soon become a national stock.
Congress have assumed the administration of this stock. They have begun
to render it productive. Congress have undertaken to do more: they have
proceeded to form new States, to erect temporary governments, to
appoint officers for them, and to prescribe the conditions on which
such States shall be admitted into the Confederacy. All this has been
done; and done without the least color of constitutional authority. Yet
no blame has been whispered; no alarm has been sounded. A GREAT and
INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY
of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate
money to their support for an INDEFINITE PERIOD OF TIME. And yet there
are men, who have not only been silent spectators of this prospect, but
who are advocates for the system which exhibits it; and, at the same
time, urge against the new system the objections which we have heard.
Would they not act with more consistency, in urging the establishment
of the latter, as no less necessary to guard the Union against the
future powers and resources of a body constructed like the existing
Congress, than to save it from the dangers threatened by the present
impotency of that Assembly?

I mean not, by any thing here said, to throw censure on the measures
which have been pursued by Congress. I am sensible they could not have
done otherwise. The public interest, the necessity of the case, imposed
upon them the task of overleaping their constitutional limits. But is
not the fact an alarming proof of the danger resulting from a
government which does not possess regular powers commensurate to its
objects? A dissolution or usurpation is the dreadful dilemma to which
it is continually exposed.

PUBLIUS.




THE FEDERALIST.
No. XXXIX.

The Conformity of the Plan to Republican Principles

For the Independent Journal.

MADISON


To the People of the State of New York:

The last paper having concluded the observations which were meant to
introduce a candid survey of the plan of government reported by the
convention, we now proceed to the execution of that part of our
undertaking.

The first question that offers itself is, whether the general form and
aspect of the government be strictly republican. It is evident that no
other form would be reconcilable with the genius of the people of
America; with the fundamental principles of the Revolution; or with
that honorable determination which animates every votary of freedom, to
rest all our political experiments on the capacity of mankind for
self-government. If the plan of the convention, therefore, be found to
depart from the republican character, its advocates must abandon it as
no longer defensible.

What, then, are the distinctive characters of the republican form? Were
an answer to this question to be sought, not by recurring to
principles, but in the application of the term by political writers, to
the constitution of different States, no satisfactory one would ever be
found. Holland, in which no particle of the supreme authority is
derived from the people, has passed almost universally under the
denomination of a republic. The same title has been bestowed on Venice,
where absolute power over the great body of the people is exercised, in
the most absolute manner, by a small body of hereditary nobles. Poland,
which is a mixture of aristocracy and of monarchy in their worst forms,
has been dignified with the same appellation. The government of
England, which has one republican branch only, combined with an
hereditary aristocracy and monarchy, has, with equal impropriety, been
frequently placed on the list of republics. These examples, which are
nearly as dissimilar to each other as to a genuine republic, show the
extreme inaccuracy with which the term has been used in political
disquisitions.

If we resort for a criterion to the different principles on which
different forms of government are established, we may define a republic
to be, or at least may bestow that name on, a government which derives
all its powers directly or indirectly from the great body of the
people, and is administered by persons holding their offices during
pleasure, for a limited period, or during good behavior. It is
ESSENTIAL to such a government that it be derived from the great body
of the society, not from an inconsiderable proportion, or a favored
class of it; otherwise a handful of tyrannical nobles, exercising their
oppressions by a delegation of their powers, might aspire to the rank
of republicans, and claim for their government the honorable title of
republic. It is SUFFICIENT for such a government that the persons
administering it be appointed, either directly or indirectly, by the
people; and that they hold their appointments by either of the tenures
just specified; otherwise every government in the United States, as
well as every other popular government that has been or can be well
organized or well executed, would be degraded from the republican
character. According to the constitution of every State in the Union,
some or other of the officers of government are appointed indirectly
only by the people. According to most of them, the chief magistrate
himself is so appointed. And according to one, this mode of appointment
is extended to one of the co-ordinate branches of the legislature.
According to all the constitutions, also, the tenure of the highest
offices is extended to a definite period, and in many instances, both
within the legislative and executive departments, to a period of years.
According to the provisions of most of the constitutions, again, as
well as according to the most respectable and received opinions on the
subject, the members of the judiciary department are to retain their
offices by the firm tenure of good behavior.

On comparing the Constitution planned by the convention with the
standard here fixed, we perceive at once that it is, in the most rigid
sense, conformable to it. The House of Representatives, like that of
one branch at least of all the State legislatures, is elected
immediately by the great body of the people. The Senate, like the
present Congress, and the Senate of Maryland, derives its appointment
indirectly from the people. The President is indirectly derived from
the choice of the people, according to the example in most of the
States. Even the judges, with all other officers of the Union, will, as
in the several States, be the choice, though a remote choice, of the
people themselves, the duration of the appointments is equally
conformable to the republican standard, and to the model of State
constitutions The House of Representatives is periodically elective, as
in all the States; and for the period of two years, as in the State of
South Carolina. The Senate is elective, for the period of six years;
which is but one year more than the period of the Senate of Maryland,
and but two more than that of the Senates of New York and Virginia. The
President is to continue in office for the period of four years; as in
New York and Delaware, the chief magistrate is elected for three years,
and in South Carolina for two years. In the other States the election
is annual. In several of the States, however, no constitutional
provision is made for the impeachment of the chief magistrate. And in
Delaware and Virginia he is not impeachable till out of office. The
President of the United States is impeachable at any time during his
continuance in office. The tenure by which the judges are to hold their
places, is, as it unquestionably ought to be, that of good behavior.
The tenure of the ministerial offices generally, will be a subject of
legal regulation, conformably to the reason of the case and the example
of the State constitutions.

Could any further proof be required of the republican complexion of
this system, the most decisive one might be found in its absolute
prohibition of titles of nobility, both under the federal and the State
governments; and in its express guaranty of the republican form to each
of the latter.

“But it was not sufficient,” say the adversaries of the proposed
Constitution, “for the convention to adhere to the republican form.
They ought, with equal care, to have preserved the FEDERAL form, which
regards the Union as a CONFEDERACY of sovereign states; instead of
which, they have framed a NATIONAL government, which regards the Union
as a CONSOLIDATION of the States.” And it is asked by what authority
this bold and radical innovation was undertaken? The handle which has
been made of this objection requires that it should be examined with
some precision.

Without inquiring into the accuracy of the distinction on which the
objection is founded, it will be necessary to a just estimate of its
force, first, to ascertain the real character of the government in
question; secondly, to inquire how far the convention were authorized
to propose such a government; and thirdly, how far the duty they owed
to their country could supply any defect of regular authority.

First. In order to ascertain the real character of the government, it
may be considered in relation to the foundation on which it is to be
established; to the sources from which its ordinary powers are to be
drawn; to the operation of those powers; to the extent of them; and to
the authority by which future changes in the government are to be
introduced.

On examining the first relation, it appears, on one hand, that the
Constitution is to be founded on the assent and ratification of the
people of America, given by deputies elected for the special purpose;
but, on the other, that this assent and ratification is to be given by
the people, not as individuals composing one entire nation, but as
composing the distinct and independent States to which they
respectively belong. It is to be the assent and ratification of the
several States, derived from the supreme authority in each State, the
authority of the people themselves. The act, therefore, establishing
the Constitution, will not be a NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms are
understood by the objectors; the act of the people, as forming so many
independent States, not as forming one aggregate nation, is obvious
from this single consideration, that it is to result neither from the
decision of a MAJORITY of the people of the Union, nor from that of a
MAJORITY of the States. It must result from the UNANIMOUS assent of the
several States that are parties to it, differing no otherwise from
their ordinary assent than in its being expressed, not by the
legislative authority, but by that of the people themselves. Were the
people regarded in this transaction as forming one nation, the will of
the majority of the whole people of the United States would bind the
minority, in the same manner as the majority in each State must bind
the minority; and the will of the majority must be determined either by
a comparison of the individual votes, or by considering the will of the
majority of the States as evidence of the will of a majority of the
people of the United States. Neither of these rules have been adopted.
Each State, in ratifying the Constitution, is considered as a sovereign
body, independent of all others, and only to be bound by its own
voluntary act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution.

The next relation is, to the sources from which the ordinary powers of
government are to be derived. The House of Representatives will derive
its powers from the people of America; and the people will be
represented in the same proportion, and on the same principle, as they
are in the legislature of a particular State. So far the government is
NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its
powers from the States, as political and coequal societies; and these
will be represented on the principle of equality in the Senate, as they
now are in the existing Congress. So far the government is FEDERAL, not
NATIONAL. The executive power will be derived from a very compound
source. The immediate election of the President is to be made by the
States in their political characters. The votes allotted to them are in
a compound ratio, which considers them partly as distinct and coequal
societies, partly as unequal members of the same society. The eventual
election, again, is to be made by that branch of the legislature which
consists of the national representatives; but in this particular act
they are to be thrown into the form of individual delegations, from so
many distinct and coequal bodies politic. From this aspect of the
government it appears to be of a mixed character, presenting at least
as many FEDERAL as NATIONAL features.

The difference between a federal and national government, as it relates
to the OPERATION OF THE GOVERNMENT, is supposed to consist in this,
that in the former the powers operate on the political bodies composing
the Confederacy, in their political capacities; in the latter, on the
individual citizens composing the nation, in their individual
capacities. On trying the Constitution by this criterion, it falls
under the NATIONAL, not the FEDERAL character; though perhaps not so
completely as has been understood. In several cases, and particularly
in the trial of controversies to which States may be parties, they must
be viewed and proceeded against in their collective and political
capacities only. So far the national countenance of the government on
this side seems to be disfigured by a few federal features. But this
blemish is perhaps unavoidable in any plan; and the operation of the
government on the people, in their individual capacities, in its
ordinary and most essential proceedings, may, on the whole, designate
it, in this relation, a NATIONAL government.

But if the government be national with regard to the OPERATION of its
powers, it changes its aspect again when we contemplate it in relation
to the EXTENT of its powers. The idea of a national government involves
in it, not only an authority over the individual citizens, but an
indefinite supremacy over all persons and things, so far as they are
objects of lawful government. Among a people consolidated into one
nation, this supremacy is completely vested in the national
legislature. Among communities united for particular purposes, it is
vested partly in the general and partly in the municipal legislatures.
In the former case, all local authorities are subordinate to the
supreme; and may be controlled, directed, or abolished by it at
pleasure. In the latter, the local or municipal authorities form
distinct and independent portions of the supremacy, no more subject,
within their respective spheres, to the general authority, than the
general authority is subject to them, within its own sphere. In this
relation, then, the proposed government cannot be deemed a NATIONAL
one; since its jurisdiction extends to certain enumerated objects only,
and leaves to the several States a residuary and inviolable sovereignty
over all other objects. It is true that in controversies relating to
the boundary between the two jurisdictions, the tribunal which is
ultimately to decide, is to be established under the general
government. But this does not change the principle of the case. The
decision is to be impartially made, according to the rules of the
Constitution; and all the usual and most effectual precautions are
taken to secure this impartiality. Some such tribunal is clearly
essential to prevent an appeal to the sword and a dissolution of the
compact; and that it ought to be established under the general rather
than under the local governments, or, to speak more properly, that it
could be safely established under the first alone, is a position not
likely to be combated.

If we try the Constitution by its last relation to the authority by
which amendments are to be made, we find it neither wholly NATIONAL nor
wholly FEDERAL. Were it wholly national, the supreme and ultimate
authority would reside in the MAJORITY of the people of the Union; and
this authority would be competent at all times, like that of a majority
of every national society, to alter or abolish its established
government. Were it wholly federal, on the other hand, the concurrence
of each State in the Union would be essential to every alteration that
would be binding on all. The mode provided by the plan of the
convention is not founded on either of these principles. In requiring
more than a majority, and principles. In requiring more than a
majority, and particularly in computing the proportion by STATES, not
by CITIZENS, it departs from the NATIONAL and advances towards the
FEDERAL character; in rendering the concurrence of less than the whole
number of States sufficient, it loses again the FEDERAL and partakes of
the NATIONAL character.

The proposed Constitution, therefore, is, in strictness, neither a
national nor a federal Constitution, but a composition of both. In its
foundation it is federal, not national; in the sources from which the
ordinary powers of the government are drawn, it is partly federal and
partly national; in the operation of these powers, it is national, not
federal; in the extent of them, again, it is federal, not national;
and, finally, in the authoritative mode of introducing amendments, it
is neither wholly federal nor wholly national.

PUBLIUS.




THE FEDERALIST.
No. XL.

The Powers of the Convention to Form a Mixed Government Examined and
Sustained

From the New York Packet.

Friday, January 18, 1788.

MADISON


To the People of the State of New York:

The second point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution. The powers of
the convention ought, in strictness, to be determined by an inspection
of the commissions given to the members by their respective
constituents. As all of these, however, had reference, either to the
recommendation from the meeting at Annapolis, in September, 1786, or to
that from Congress, in February, 1787, it will be sufficient to recur
to these particular acts. The act from Annapolis recommends the
“appointment of commissioners to take into consideration the situation
of the United States; to devise SUCH FURTHER PROVISIONS as shall appear
to them necessary to render the Constitution of the federal government
ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for
that purpose, to the United States in Congress assembled, as when
agreed to by them, and afterwards confirmed by the legislature of every
State, will effectually provide for the same. “The recommendatory act
of Congress is in the words following: “WHEREAS, There is provision in
the articles of Confederation and perpetual Union, for making
alterations therein, by the assent of a Congress of the United States,
and of the legislatures of the several States; and whereas experience
hath evinced, that there are defects in the present Confederation; as a
mean to remedy which, several of the States, and PARTICULARLY THE STATE
OF NEW YORK, by express instructions to their delegates in Congress,
have suggested a convention for the purposes expressed in the following
resolution; and such convention appearing to be the most probable mean
of establishing in these States A FIRM NATIONAL GOVERNMENT: “Resolved,
That in the opinion of Congress it is expedient, that on the second
Monday of May next a convention of delegates, who shall have been
appointed by the several States, be held at Philadelphia, for the sole
and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and
reporting to Congress and the several legislatures such ALTERATIONS AND
PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed
by the States, render the federal Constitution ADEQUATE TO THE
EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION. “From these
two acts, it appears, 1st, that the object of the convention was to
establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this
government was to be such as would be ADEQUATE TO THE EXIGENCIES OF
GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes
were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
CONFEDERATION, as it is expressed in the act of Congress, or by SUCH
FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the
recommendatory act from Annapolis; 4th, that the alterations and
provisions were to be reported to Congress, and to the States, in order
to be agreed to by the former and confirmed by the latter. From a
comparison and fair construction of these several modes of expression,
is to be deduced the authority under which the convention acted. They
were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF
GOVERNMENT, and OF THE UNION; and to reduce the articles of
Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as well
as founded on legal axioms. The one is, that every part of the
expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several
parts cannot be made to coincide, the less important should give way to
the more important part; the means should be sacrificed to the end,
rather than the end to the means. Suppose, then, that the expressions
defining the authority of the convention were irreconcilably at
variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could
not possibly, in the judgment of the convention, be affected by
ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part
of the definition ought to have been embraced, and which rejected?
Which was the more important, which the less important part? Which the
end; which the means? Let the most scrupulous expositors of delegated
powers; let the most inveterate objectors against those exercised by
the convention, answer these questions. Let them declare, whether it
was of most importance to the happiness of the people of America, that
the articles of Confederation should be disregarded, and an adequate
government be provided, and the Union preserved; or that an adequate
government should be omitted, and the articles of Confederation
preserved. Let them declare, whether the preservation of these articles
was the end, for securing which a reform of the government was to be
introduced as the means; or whether the establishment of a government,
adequate to the national happiness, was the end at which these articles
themselves originally aimed, and to which they ought, as insufficient
means, to have been sacrificed. But is it necessary to suppose that
these expressions are absolutely irreconcilable to each other; that no
ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could
possibly mould them into a national and adequate government; into such
a government as has been proposed by the convention? No stress, it is
presumed, will, in this case, be laid on the TITLE; a change of that
could never be deemed an exercise of ungranted power. ALTERATIONS in
the body of the instrument are expressly authorized. NEW PROVISIONS
therein are also expressly authorized. Here then is a power to change
the title; to insert new articles; to alter old ones. Must it of
necessity be admitted that this power is infringed, so long as a part
of the old articles remain? Those who maintain the affirmative ought at
least to mark the boundary between authorized and usurped innovations;
between that degree of change which lies within the compass of
ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
TRANSMUTATION of the government. Will it be said that the alterations
ought not to have touched the substance of the Confederation? The
States would never have appointed a convention with so much solemnity,
nor described its objects with so much latitude, if some SUBSTANTIAL
reform had not been in contemplation. Will it be said that the
FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview
of the convention, and ought not to have been varied? I ask, What are
these principles? Do they require that, in the establishment of the
Constitution, the States should be regarded as distinct and independent
sovereigns? They are so regarded by the Constitution proposed. Do they
require that the members of the government should derive their
appointment from the legislatures, not from the people of the States?
One branch of the new government is to be appointed by these
legislatures; and under the Confederation, the delegates to Congress
MAY ALL be appointed immediately by the people, and in two States[1]
are actually so appointed. Do they require that the powers of the
government should act on the States, and not immediately on
individuals? In some instances, as has been shown, the powers of the
new government will act on the States in their collective characters.
In some instances, also, those of the existing government act
immediately on individuals. In cases of capture; of piracy; of the post
office; of coins, weights, and measures; of trade with the Indians; of
claims under grants of land by different States; and, above all, in the
case of trials by courts-marshal in the army and navy, by which death
may be inflicted without the intervention of a jury, or even of a civil
magistrate; in all these cases the powers of the Confederation operate
immediately on the persons and interests of individual citizens. Do
these fundamental principles require, particularly, that no tax should
be levied without the intermediate agency of the States? The
Confederation itself authorizes a direct tax, to a certain extent, on
the post office. The power of coinage has been so construed by Congress
as to levy a tribute immediately from that source also. But
pretermitting these instances, was it not an acknowledged object of the
convention and the universal expectation of the people, that the
regulation of trade should be submitted to the general government in
such a form as would render it an immediate source of general revenue?
Had not Congress repeatedly recommended this measure as not
inconsistent with the fundamental principles of the Confederation? Had
not every State but one; had not New York herself, so far complied with
the plan of Congress as to recognize the PRINCIPLE of the innovation?
Do these principles, in fine, require that the powers of the general
government should be limited, and that, beyond this limit, the States
should be left in possession of their sovereignty and independence? We
have seen that in the new government, as in the old, the general powers
are limited; and that the States, in all unenumerated cases, are left
in the enjoyment of their sovereign and independent jurisdiction. The
truth is, that the great principles of the Constitution proposed by the
convention may be considered less as absolutely new, than as the
expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been, that
these principles are so feeble and confined as to justify all the
charges of inefficiency which have been urged against it, and to
require a degree of enlargement which gives to the new system the
aspect of an entire transformation of the old. In one particular it is
admitted that the convention have departed from the tenor of their
commission. Instead of reporting a plan requiring the confirmation OF
THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is
to be confirmed by the PEOPLE, and may be carried into effect by NINE
STATES ONLY. It is worthy of remark that this objection, though the
most plausible, has been the least urged in the publications which have
swarmed against the convention. The forbearance can only have proceeded
from an irresistible conviction of the absurdity of subjecting the fate
of twelve States to the perverseness or corruption of a thirteenth;
from the example of inflexible opposition given by a MAJORITY of one
sixtieth of the people of America to a measure approved and called for
by the voice of twelve States, comprising fifty-nine sixtieths of the
people an example still fresh in the memory and indignation of every
citizen who has felt for the wounded honor and prosperity of his
country. As this objection, therefore, has been in a manner waived by
those who have criticised the powers of the convention, I dismiss it
without further observation. The THIRD point to be inquired into is,
how far considerations of duty arising out of the case itself could
have supplied any defect of regular authority. In the preceding
inquiries the powers of the convention have been analyzed and tried
with the same rigor, and by the same rules, as if they had been real
and final powers for the establishment of a Constitution for the United
States. We have seen in what manner they have borne the trial even on
that supposition. It is time now to recollect that the powers were
merely advisory and recommendatory; that they were so meant by the
States, and so understood by the convention; and that the latter have
accordingly planned and proposed a Constitution which is to be of no
more consequence than the paper on which it is written, unless it be
stamped with the approbation of those to whom it is addressed. This
reflection places the subject in a point of view altogether different,
and will enable us to judge with propriety of the course taken by the
convention. Let us view the ground on which the convention stood. It
may be collected from their proceedings, that they were deeply and
unanimously impressed with the crisis, which had led their country
almost with one voice to make so singular and solemn an experiment for
correcting the errors of a system by which this crisis had been
produced; that they were no less deeply and unanimously convinced that
such a reform as they have proposed was absolutely necessary to effect
the purposes of their appointment. It could not be unknown to them that
the hopes and expectations of the great body of citizens, throughout
this great empire, were turned with the keenest anxiety to the event of
their deliberations. They had every reason to believe that the contrary
sentiments agitated the minds and bosoms of every external and internal
foe to the liberty and prosperity of the United States. They had seen
in the origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a partial
amendment of the Confederation, had been attended to and promoted. They
had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW
States, convened at Annapolis, of recommending a great and critical
object, wholly foreign to their commission, not only justified by the
public opinion, but actually carried into effect by twelve out of the
thirteen States. They had seen, in a variety of instances, assumptions
by Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects
infinitely less urgent than those by which their conduct was to be
governed. They must have reflected, that in all great changes of
established governments, forms ought to give way to substance; that a
rigid adherence in such cases to the former, would render nominal and
nugatory the transcendent and precious right of the people to “abolish
or alter their governments as to them shall seem most likely to effect
their safety and happiness,”[2] since it is impossible for the people
spontaneously and universally to move in concert towards their object;
and it is therefore essential that such changes be instituted by some
INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and
respectable citizen or number of citizens. They must have recollected
that it was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States were first
united against the danger with which they were threatened by their
ancient government; that committees and congresses were formed for
concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering to
ordinary forms, were anywhere seen, except in those who wished to
indulge, under these masks, their secret enmity to the substance
contended for. They must have borne in mind, that as the plan to be
framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it forever; its
approbation blot out antecedent errors and irregularities. It might
even have occurred to them, that where a disposition to cavil
prevailed, their neglect to execute the degree of power vested in them,
and still more their recommendation of any measure whatever, not
warranted by their commission, would not less excite animadversion,
than a recommendation at once of a measure fully commensurate to the
national exigencies. Had the convention, under all these impressions,
and in the midst of all these considerations, instead of exercising a
manly confidence in their country, by whose confidence they had been so
peculiarly distinguished, and of pointing out a system capable, in
their judgment, of securing its happiness, taken the cold and sullen
resolution of disappointing its ardent hopes, of sacrificing substance
to forms, of committing the dearest interests of their country to the
uncertainties of delay and the hazard of events, let me ask the man who
can raise his mind to one elevated conception, who can awaken in his
bosom one patriotic emotion, what judgment ought to have been
pronounced by the impartial world, by the friends of mankind, by every
virtuous citizen, on the conduct and character of this assembly? Or if
there be a man whose propensity to condemn is susceptible of no
control, let me then ask what sentence he has in reserve for the twelve
States who USURPED THE POWER of sending deputies to the convention, a
body utterly unknown to their constitutions; for Congress, who
recommended the appointment of this body, equally unknown to the
Confederation; and for the State of New York, in particular, which
first urged and then complied with this unauthorized interposition? But
that the objectors may be disarmed of every pretext, it shall be
granted for a moment that the convention were neither authorized by
their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution
ought, for that reason alone, to be rejected? If, according to the
noble precept, it be lawful to accept good advice even from an enemy,
shall we set the ignoble example of refusing such advice even when it
is offered by our friends? The prudent inquiry, in all cases, ought
surely to be, not so much FROM WHOM the advice comes, as whether the
advice be GOOD. The sum of what has been here advanced and proved is,
that the charge against the convention of exceeding their powers,
except in one instance little urged by the objectors, has no foundation
to support it; that if they had exceeded their powers, they were not
only warranted, but required, as the confidential servants of their
country, by the circumstances in which they were placed, to exercise
the liberty which they assume; and that finally, if they had violated
both their powers and their obligations, in proposing a Constitution,
this ought nevertheless to be embraced, if it be calculated to
accomplish the views and happiness of the people of America. How far
this character is due to the Constitution, is the subject under
investigation.

PUBLIUS.

 [1] Connecticut and Rhode Island.

 [2] Declaration of Independence.




THE FEDERALIST.
No. XLI.

General View of the Powers Conferred by The Constitution

For the Independent Journal.

MADISON


To the People of the State of New York:

The Constitution proposed by the convention may be considered under two
general points of view. The FIRST relates to the sum or quantity of
power which it vests in the government, including the restraints
imposed on the States. The SECOND, to the particular structure of the
government, and the distribution of this power among its several
branches. Under the FIRST view of the subject, two important questions
arise: 1. Whether any part of the powers transferred to the general
government be unnecessary or improper? 2. Whether the entire mass of
them be dangerous to the portion of jurisdiction left in the several
States? Is the aggregate power of the general government greater than
ought to have been vested in it? This is the FIRST question. It cannot
have escaped those who have attended with candor to the arguments
employed against the extensive powers of the government, that the
authors of them have very little considered how far these powers were
necessary means of attaining a necessary end. They have chosen rather
to dwell on the inconveniences which must be unavoidably blended with
all political advantages; and on the possible abuses which must be
incident to every power or trust, of which a beneficial use can be
made. This method of handling the subject cannot impose on the good
sense of the people of America. It may display the subtlety of the
writer; it may open a boundless field for rhetoric and declamation; it
may inflame the passions of the unthinking, and may confirm the
prejudices of the misthinking: but cool and candid people will at once
reflect, that the purest of human blessings must have a portion of
alloy in them; that the choice must always be made, if not of the
lesser evil, at least of the GREATER, not the PERFECT, good; and that
in every political institution, a power to advance the public happiness
involves a discretion which may be misapplied and abused. They will
see, therefore, that in all cases where power is to be conferred, the
point first to be decided is, whether such a power be necessary to the
public good; as the next will be, in case of an affirmative decision,
to guard as effectually as possible against a perversion of the power
to the public detriment. That we may form a correct judgment on this
subject, it will be proper to review the several powers conferred on
the government of the Union; and that this may be the more conveniently
done they may be reduced into different classes as they relate to the
following different objects: 1. Security against foreign danger; 2.
Regulation of the intercourse with foreign nations; 3. Maintenance of
harmony and proper intercourse among the States; 4. Certain
miscellaneous objects of general utility; 5. Restraint of the States
from certain injurious acts; 6. Provisions for giving due efficacy to
all these powers. The powers falling within the FIRST class are those
of declaring war and granting letters of marque; of providing armies
and fleets; of regulating and calling forth the militia; of levying and
borrowing money. Security against foreign danger is one of the
primitive objects of civil society. It is an avowed and essential
object of the American Union. The powers requisite for attaining it
must be effectually confided to the federal councils. Is the power of
declaring war necessary? No man will answer this question in the
negative. It would be superfluous, therefore, to enter into a proof of
the affirmative. The existing Confederation establishes this power in
the most ample form. Is the power of raising armies and equipping
fleets necessary? This is involved in the foregoing power. It is
involved in the power of self-defense. But was it necessary to give an
INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of
maintaining both in PEACE, as well as in war? The answer to these
questions has been too far anticipated in another place to admit an
extensive discussion of them in this place. The answer indeed seems to
be so obvious and conclusive as scarcely to justify such a discussion
in any place. With what color of propriety could the force necessary
for defense be limited by those who cannot limit the force of offense?
If a federal Constitution could chain the ambition or set bounds to the
exertions of all other nations, then indeed might it prudently chain
the discretion of its own government, and set bounds to the exertions
for its own safety.

How could a readiness for war in time of peace be safely prohibited,
unless we could prohibit, in like manner, the preparations and
establishments of every hostile nation? The means of security can only
be regulated by the means and the danger of attack. They will, in fact,
be ever determined by these rules, and by no others. It is in vain to
oppose constitutional barriers to the impulse of self-preservation. It
is worse than in vain; because it plants in the Constitution itself
necessary usurpations of power, every precedent of which is a germ of
unnecessary and multiplied repetitions. If one nation maintains
constantly a disciplined army, ready for the service of ambition or
revenge, it obliges the most pacific nations who may be within the
reach of its enterprises to take corresponding precautions.

The fifteenth century was the unhappy epoch of military establishments
in the time of peace. They were introduced by Charles VII. of France.
All Europe has followed, or been forced into, the example. Had the
example not been followed by other nations, all Europe must long ago
have worn the chains of a universal monarch. Were every nation except
France now to disband its peace establishments, the same event might
follow. The veteran legions of Rome were an overmatch for the
undisciplined valor of all other nations and rendered her the mistress
of the world. Not the less true is it, that the liberties of Rome
proved the final victim to her military triumphs; and that the
liberties of Europe, as far as they ever existed, have, with few
exceptions, been the price of her military establishments. A standing
force, therefore, is a dangerous, at the same time that it may be a
necessary, provision. On the smallest scale it has its inconveniences.
On an extensive scale its consequences may be fatal. On any scale it is
an object of laudable circumspection and precaution. A wise nation will
combine all these considerations; and, whilst it does not rashly
preclude itself from any resource which may become essential to its
safety, will exert all its prudence in diminishing both the necessity
and the danger of resorting to one which may be inauspicious to its
liberties. The clearest marks of this prudence are stamped on the
proposed Constitution. The Union itself, which it cements and secures,
destroys every pretext for a military establishment which could be
dangerous. America united, with a handful of troops, or without a
single soldier, exhibits a more forbidding posture to foreign ambition
than America disunited, with a hundred thousand veterans ready for
combat. It was remarked, on a former occasion, that the want of this
pretext had saved the liberties of one nation in Europe. Being rendered
by her insular situation and her maritime resources impregnable to the
armies of her neighbors, the rulers of Great Britain have never been
able, by real or artificial dangers, to cheat the public into an
extensive peace establishment. The distance of the United States from
the powerful nations of the world gives them the same happy security. A
dangerous establishment can never be necessary or plausible, so long as
they continue a united people. But let it never, for a moment, be
forgotten that they are indebted for this advantage to the Union alone.
The moment of its dissolution will be the date of a new order of
things. The fears of the weaker, or the ambition of the stronger
States, or Confederacies, will set the same example in the New, as
Charles VII. did in the Old World. The example will be followed here
from the same motives which produced universal imitation there. Instead
of deriving from our situation the precious advantage which Great
Britain has derived from hers, the face of America will be but a copy
of that of the continent of Europe. It will present liberty everywhere
crushed between standing armies and perpetual taxes. The fortunes of
disunited America will be even more disastrous than those of Europe.
The sources of evil in the latter are confined to her own limits. No
superior powers of another quarter of the globe intrigue among her
rival nations, inflame their mutual animosities, and render them the
instruments of foreign ambition, jealousy, and revenge. In America the
miseries springing from her internal jealousies, contentions, and wars,
would form a part only of her lot. A plentiful addition of evils would
have their source in that relation in which Europe stands to this
quarter of the earth, and which no other quarter of the earth bears to
Europe. This picture of the consequences of disunion cannot be too
highly colored, or too often exhibited. Every man who loves peace,
every man who loves his country, every man who loves liberty, ought to
have it ever before his eyes, that he may cherish in his heart a due
attachment to the Union of America, and be able to set a due value on
the means of preserving it.

Next to the effectual establishment of the Union, the best possible
precaution against danger from standing armies is a limitation of the
term for which revenue may be appropriated to their support. This
precaution the Constitution has prudently added. I will not repeat here
the observations which I flatter myself have placed this subject in a
just and satisfactory light. But it may not be improper to take notice
of an argument against this part of the Constitution, which has been
drawn from the policy and practice of Great Britain. It is said that
the continuance of an army in that kingdom requires an annual vote of
the legislature; whereas the American Constitution has lengthened this
critical period to two years. This is the form in which the comparison
is usually stated to the public: but is it a just form? Is it a fair
comparison? Does the British Constitution restrain the parliamentary
discretion to one year? Does the American impose on the Congress
appropriations for two years? On the contrary, it cannot be unknown to
the authors of the fallacy themselves, that the British Constitution
fixes no limit whatever to the discretion of the legislature, and that
the American ties down the legislature to two years, as the longest
admissible term. Had the argument from the British example been truly
stated, it would have stood thus: The term for which supplies may be
appropriated to the army establishment, though unlimited by the British
Constitution, has nevertheless, in practice, been limited by
parliamentary discretion to a single year. Now, if in Great Britain,
where the House of Commons is elected for seven years; where so great a
proportion of the members are elected by so small a proportion of the
people; where the electors are so corrupted by the representatives, and
the representatives so corrupted by the Crown, the representative body
can possess a power to make appropriations to the army for an
indefinite term, without desiring, or without daring, to extend the
term beyond a single year, ought not suspicion herself to blush, in
pretending that the representatives of the United States, elected
FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be
safely intrusted with the discretion over such appropriations,
expressly limited to the short period of TWO YEARS? A bad cause seldom
fails to betray itself. Of this truth, the management of the opposition
to the federal government is an unvaried exemplification. But among all
the blunders which have been committed, none is more striking than the
attempt to enlist on that side the prudent jealousy entertained by the
people, of standing armies. The attempt has awakened fully the public
attention to that important subject; and has led to investigations
which must terminate in a thorough and universal conviction, not only
that the constitution has provided the most effectual guards against
danger from that quarter, but that nothing short of a Constitution
fully adequate to the national defense and the preservation of the
Union, can save America from as many standing armies as it may be split
into States or Confederacies, and from such a progressive augmentation,
of these establishments in each, as will render them as burdensome to
the properties and ominous to the liberties of the people, as any
establishment that can become necessary, under a united and efficient
government, must be tolerable to the former and safe to the latter. The
palpable necessity of the power to provide and maintain a navy has
protected that part of the Constitution against a spirit of censure,
which has spared few other parts. It must, indeed, be numbered among
the greatest blessings of America, that as her Union will be the only
source of her maritime strength, so this will be a principal source of
her security against danger from abroad. In this respect our situation
bears another likeness to the insular advantage of Great Britain. The
batteries most capable of repelling foreign enterprises on our safety,
are happily such as can never be turned by a perfidious government
against our liberties. The inhabitants of the Atlantic frontier are all
of them deeply interested in this provision for naval protection, and
if they have hitherto been suffered to sleep quietly in their beds; if
their property has remained safe against the predatory spirit of
licentious adventurers; if their maritime towns have not yet been
compelled to ransom themselves from the terrors of a conflagration, by
yielding to the exactions of daring and sudden invaders, these
instances of good fortune are not to be ascribed to the capacity of the
existing government for the protection of those from whom it claims
allegiance, but to causes that are fugitive and fallacious. If we
except perhaps Virginia and Maryland, which are peculiarly vulnerable
on their eastern frontiers, no part of the Union ought to feel more
anxiety on this subject than New York. Her seacoast is extensive. A
very important district of the State is an island. The State itself is
penetrated by a large navigable river for more than fifty leagues. The
great emporium of its commerce, the great reservoir of its wealth, lies
every moment at the mercy of events, and may almost be regarded as a
hostage for ignominious compliances with the dictates of a foreign
enemy, or even with the rapacious demands of pirates and barbarians.
Should a war be the result of the precarious situation of European
affairs, and all the unruly passions attending it be let loose on the
ocean, our escape from insults and depredations, not only on that
element, but every part of the other bordering on it, will be truly
miraculous. In the present condition of America, the States more
immediately exposed to these calamities have nothing to hope from the
phantom of a general government which now exists; and if their single
resources were equal to the task of fortifying themselves against the
danger, the object to be protected would be almost consumed by the
means of protecting them. The power of regulating and calling forth the
militia has been already sufficiently vindicated and explained. The
power of levying and borrowing money, being the sinew of that which is
to be exerted in the national defense, is properly thrown into the same
class with it. This power, also, has been examined already with much
attention, and has, I trust, been clearly shown to be necessary, both
in the extent and form given to it by the Constitution. I will address
one additional reflection only to those who contend that the power
ought to have been restrained to external taxation by which they mean,
taxes on articles imported from other countries. It cannot be doubted
that this will always be a valuable source of revenue; that for a
considerable time it must be a principal source; that at this moment it
is an essential one. But we may form very mistaken ideas on this
subject, if we do not call to mind in our calculations, that the extent
of revenue drawn from foreign commerce must vary with the variations,
both in the extent and the kind of imports; and that these variations
do not correspond with the progress of population, which must be the
general measure of the public wants. As long as agriculture continues
the sole field of labor, the importation of manufactures must increase
as the consumers multiply. As soon as domestic manufactures are begun
by the hands not called for by agriculture, the imported manufactures
will decrease as the numbers of people increase. In a more remote
stage, the imports may consist in a considerable part of raw materials,
which will be wrought into articles for exportation, and will,
therefore, require rather the encouragement of bounties, than to be
loaded with discouraging duties. A system of government, meant for
duration, ought to contemplate these revolutions, and be able to
accommodate itself to them. Some, who have not denied the necessity of
the power of taxation, have grounded a very fierce attack against the
Constitution, on the language in which it is defined. It has been urged
and echoed, that the power “to lay and collect taxes, duties, imposts,
and excises, to pay the debts, and provide for the common defense and
general welfare of the United States,” amounts to an unlimited
commission to exercise every power which may be alleged to be necessary
for the common defense or general welfare. No stronger proof could be
given of the distress under which these writers labor for objections,
than their stooping to such a misconstruction. Had no other enumeration
or definition of the powers of the Congress been found in the
Constitution, than the general expressions just cited, the authors of
the objection might have had some color for it; though it would have
been difficult to find a reason for so awkward a form of describing an
authority to legislate in all possible cases. A power to destroy the
freedom of the press, the trial by jury, or even to regulate the course
of descents, or the forms of conveyances, must be very singularly
expressed by the terms “to raise money for the general welfare. “But
what color can the objection have, when a specification of the objects
alluded to by these general terms immediately follows, and is not even
separated by a longer pause than a semicolon? If the different parts of
the same instrument ought to be so expounded, as to give meaning to
every part which will bear it, shall one part of the same sentence be
excluded altogether from a share in the meaning; and shall the more
doubtful and indefinite terms be retained in their full extent, and the
clear and precise expressions be denied any signification whatsoever?
For what purpose could the enumeration of particular powers be
inserted, if these and all others were meant to be included in the
preceding general power? Nothing is more natural nor common than first
to use a general phrase, and then to explain and qualify it by a
recital of particulars. But the idea of an enumeration of particulars
which neither explain nor qualify the general meaning, and can have no
other effect than to confound and mislead, is an absurdity, which, as
we are reduced to the dilemma of charging either on the authors of the
objection or on the authors of the Constitution, we must take the
liberty of supposing, had not its origin with the latter. The objection
here is the more extraordinary, as it appears that the language used by
the convention is a copy from the articles of Confederation. The
objects of the Union among the States, as described in article third,
are “their common defense, security of their liberties, and mutual and
general welfare. “ The terms of article eighth are still more
identical: “All charges of war and all other expenses that shall be
incurred for the common defense or general welfare, and allowed by the
United States in Congress, shall be defrayed out of a common treasury,”
etc. A similar language again occurs in article ninth. Construe either
of these articles by the rules which would justify the construction put
on the new Constitution, and they vest in the existing Congress a power
to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching
themselves to these general expressions, and disregarding the
specifications which ascertain and limit their import, they had
exercised an unlimited power of providing for the common defense and
general welfare? I appeal to the objectors themselves, whether they
would in that case have employed the same reasoning in justification of
Congress as they now make use of against the convention. How difficult
it is for error to escape its own condemnation!

PUBLIUS.




THE FEDERALIST.
No. XLII.

The Powers Conferred by the Constitution Further Considered

From the New York Packet. Tuesday, January 22, 1788.

MADISON


To the People of the State of New York:

The second class of powers, lodged in the general government, consists
of those which regulate the intercourse with foreign nations, to wit:
to make treaties; to send and receive ambassadors, other public
ministers, and consuls; to define and punish piracies and felonies
committed on the high seas, and offenses against the law of nations; to
regulate foreign commerce, including a power to prohibit, after the
year 1808, the importation of slaves, and to lay an intermediate duty
of ten dollars per head, as a discouragement to such importations. This
class of powers forms an obvious and essential branch of the federal
administration. If we are to be one nation in any respect, it clearly
ought to be in respect to other nations. The powers to make treaties
and to send and receive ambassadors, speak their own propriety. Both of
them are comprised in the articles of Confederation, with this
difference only, that the former is disembarrassed, by the plan of the
convention, of an exception, under which treaties might be
substantially frustrated by regulations of the States; and that a power
of appointing and receiving “other public ministers and consuls,” is
expressly and very properly added to the former provision concerning
ambassadors. The term ambassador, if taken strictly, as seems to be
required by the second of the articles of Confederation, comprehends
the highest grade only of public ministers, and excludes the grades
which the United States will be most likely to prefer, where foreign
embassies may be necessary. And under no latitude of construction will
the term comprehend consuls. Yet it has been found expedient, and has
been the practice of Congress, to employ the inferior grades of public
ministers, and to send and receive consuls. It is true, that where
treaties of commerce stipulate for the mutual appointment of consuls,
whose functions are connected with commerce, the admission of foreign
consuls may fall within the power of making commercial treaties; and
that where no such treaties exist, the mission of American consuls into
foreign countries may PERHAPS be covered under the authority, given by
the ninth article of the Confederation, to appoint all such civil
officers as may be necessary for managing the general affairs of the
United States. But the admission of consuls into the United States,
where no previous treaty has stipulated it, seems to have been nowhere
provided for. A supply of the omission is one of the lesser instances
in which the convention have improved on the model before them. But the
most minute provisions become important when they tend to obviate the
necessity or the pretext for gradual and unobserved usurpations of
power. A list of the cases in which Congress have been betrayed, or
forced by the defects of the Confederation, into violations of their
chartered authorities, would not a little surprise those who have paid
no attention to the subject; and would be no inconsiderable argument in
favor of the new Constitution, which seems to have provided no less
studiously for the lesser, than the more obvious and striking defects
of the old. The power to define and punish piracies and felonies
committed on the high seas, and offenses against the law of nations,
belongs with equal propriety to the general government, and is a still
greater improvement on the articles of Confederation. These articles
contain no provision for the case of offenses against the law of
nations; and consequently leave it in the power of any indiscreet
member to embroil the Confederacy with foreign nations. The provision
of the federal articles on the subject of piracies and felonies extends
no further than to the establishment of courts for the trial of these
offenses. The definition of piracies might, perhaps, without
inconveniency, be left to the law of nations; though a legislative
definition of them is found in most municipal codes.

A definition of felonies on the high seas is evidently requisite.
Felony is a term of loose signification, even in the common law of
England; and of various import in the statute law of that kingdom. But
neither the common nor the statute law of that, or of any other nation,
ought to be a standard for the proceedings of this, unless previously
made its own by legislative adoption. The meaning of the term, as
defined in the codes of the several States, would be as impracticable
as the former would be a dishonorable and illegitimate guide. It is not
precisely the same in any two of the States; and varies in each with
every revision of its criminal laws. For the sake of certainty and
uniformity, therefore, the power of defining felonies in this case was
in every respect necessary and proper.

The regulation of foreign commerce, having fallen within several views
which have been taken of this subject, has been too fully discussed to
need additional proofs here of its being properly submitted to the
federal administration. It were doubtless to be wished, that the power
of prohibiting the importation of slaves had not been postponed until
the year 1808, or rather that it had been suffered to have immediate
operation. But it is not difficult to account, either for this
restriction on the general government, or for the manner in which the
whole clause is expressed. It ought to be considered as a great point
gained in favor of humanity, that a period of twenty years may
terminate forever, within these States, a traffic which has so long and
so loudly upbraided the barbarism of modern policy; that within that
period, it will receive a considerable discouragement from the federal
government, and may be totally abolished, by a concurrence of the few
States which continue the unnatural traffic, in the prohibitory example
which has been given by so great a majority of the Union. Happy would
it be for the unfortunate Africans, if an equal prospect lay before
them of being redeemed from the oppressions of their European brethren!

Attempts have been made to pervert this clause into an objection
against the Constitution, by representing it on one side as a criminal
toleration of an illicit practice, and on another as calculated to
prevent voluntary and beneficial emigrations from Europe to America. I
mention these misconstructions, not with a view to give them an answer,
for they deserve none, but as specimens of the manner and spirit in
which some have thought fit to conduct their opposition to the proposed
government. The powers included in the THIRD class are those which
provide for the harmony and proper intercourse among the States. Under
this head might be included the particular restraints imposed on the
authority of the States, and certain powers of the judicial department;
but the former are reserved for a distinct class, and the latter will
be particularly examined when we arrive at the structure and
organization of the government. I shall confine myself to a cursory
review of the remaining powers comprehended under this third
description, to wit: to regulate commerce among the several States and
the Indian tribes; to coin money, regulate the value thereof, and of
foreign coin; to provide for the punishment of counterfeiting the
current coin and secureties of the United States; to fix the standard
of weights and measures; to establish a uniform rule of naturalization,
and uniform laws of bankruptcy, to prescribe the manner in which the
public acts, records, and judicial proceedings of each State shall be
proved, and the effect they shall have in other States; and to
establish post offices and post roads. The defect of power in the
existing Confederacy to regulate the commerce between its several
members, is in the number of those which have been clearly pointed out
by experience. To the proofs and remarks which former papers have
brought into view on this subject, it may be added that without this
supplemental provision, the great and essential power of regulating
foreign commerce would have been incomplete and ineffectual. A very
material object of this power was the relief of the States which import
and export through other States, from the improper contributions levied
on them by the latter. Were these at liberty to regulate the trade
between State and State, it must be foreseen that ways would be found
out to load the articles of import and export, during the passage
through their jurisdiction, with duties which would fall on the makers
of the latter and the consumers of the former. We may be assured by
past experience, that such a practice would be introduced by future
contrivances; and both by that and a common knowledge of human affairs,
that it would nourish unceasing animosities, and not improbably
terminate in serious interruptions of the public tranquillity. To those
who do not view the question through the medium of passion or of
interest, the desire of the commercial States to collect, in any form,
an indirect revenue from their uncommercial neighbors, must appear not
less impolitic than it is unfair; since it would stimulate the injured
party, by resentment as well as interest, to resort to less convenient
channels for their foreign trade. But the mild voice of reason,
pleading the cause of an enlarged and permanent interest, is but too
often drowned, before public bodies as well as individuals, by the
clamors of an impatient avidity for immediate and immoderate gain. The
necessity of a superintending authority over the reciprocal trade of
confederated States, has been illustrated by other examples as well as
our own. In Switzerland, where the Union is so very slight, each canton
is obliged to allow to merchandises a passage through its jurisdiction
into other cantons, without an augmentation of the tolls. In Germany it
is a law of the empire, that the princes and states shall not lay tolls
or customs on bridges, rivers, or passages, without the consent of the
emperor and the diet; though it appears from a quotation in an
antecedent paper, that the practice in this, as in many other instances
in that confederacy, has not followed the law, and has produced there
the mischiefs which have been foreseen here. Among the restraints
imposed by the Union of the Netherlands on its members, one is, that
they shall not establish imposts disadvantageous to their neighbors,
without the general permission. The regulation of commerce with the
Indian tribes is very properly unfettered from two limitations in the
articles of Confederation, which render the provision obscure and
contradictory. The power is there restrained to Indians, not members of
any of the States, and is not to violate or infringe the legislative
right of any State within its own limits. What description of Indians
are to be deemed members of a State, is not yet settled, and has been a
question of frequent perplexity and contention in the federal councils.
And how the trade with Indians, though not members of a State, yet
residing within its legislative jurisdiction, can be regulated by an
external authority, without so far intruding on the internal rights of
legislation, is absolutely incomprehensible. This is not the only case
in which the articles of Confederation have inconsiderately endeavored
to accomplish impossibilities; to reconcile a partial sovereignty in
the Union, with complete sovereignty in the States; to subvert a
mathematical axiom, by taking away a part, and letting the whole
remain. All that need be remarked on the power to coin money, regulate
the value thereof, and of foreign coin, is, that by providing for this
last case, the Constitution has supplied a material omission in the
articles of Confederation. The authority of the existing Congress is
restrained to the regulation of coin STRUCK by their own authority, or
that of the respective States. It must be seen at once that the
proposed uniformity in the VALUE of the current coin might be destroyed
by subjecting that of foreign coin to the different regulations of the
different States. The punishment of counterfeiting the public
securities, as well as the current coin, is submitted of course to that
authority which is to secure the value of both. The regulation of
weights and measures is transferred from the articles of Confederation,
and is founded on like considerations with the preceding power of
regulating coin.

The dissimilarity in the rules of naturalization has long been remarked
as a fault in our system, and as laying a foundation for intricate and
delicate questions. In the fourth article of the Confederation, it is
declared “that the FREE INHABITANTS of each of these States, paupers,
vagabonds, and fugitives from justice, excepted, shall be entitled to
all privileges and immunities of FREE CITIZENS in the several States;
and THE PEOPLE of each State shall, in every other, enjoy all the
privileges of trade and commerce,” etc. There is a confusion of
language here, which is remarkable. Why the terms FREE INHABITANTS are
used in one part of the article, FREE CITIZENS in another, and PEOPLE
in another; or what was meant by superadding to “all privileges and
immunities of free citizens,” “all the privileges of trade and
commerce,” cannot easily be determined. It seems to be a construction
scarcely avoidable, however, that those who come under the denomination
of FREE INHABITANTS of a State, although not citizens of such State,
are entitled, in every other State, to all the privileges of FREE
CITIZENS of the latter; that is, to greater privileges than they may be
entitled to in their own State: so that it may be in the power of a
particular State, or rather every State is laid under a necessity, not
only to confer the rights of citizenship in other States upon any whom
it may admit to such rights within itself, but upon any whom it may
allow to become inhabitants within its jurisdiction. But were an
exposition of the term “inhabitants” to be admitted which would confine
the stipulated privileges to citizens alone, the difficulty is
diminished only, not removed. The very improper power would still be
retained by each State, of naturalizing aliens in every other State. In
one State, residence for a short term confirms all the rights of
citizenship: in another, qualifications of greater importance are
required. An alien, therefore, legally incapacitated for certain rights
in the latter, may, by previous residence only in the former, elude his
incapacity; and thus the law of one State be preposterously rendered
paramount to the law of another, within the jurisdiction of the other.
We owe it to mere casualty, that very serious embarrassments on this
subject have been hitherto escaped. By the laws of several States,
certain descriptions of aliens, who had rendered themselves obnoxious,
were laid under interdicts inconsistent not only with the rights of
citizenship but with the privilege of residence. What would have been
the consequence, if such persons, by residence or otherwise, had
acquired the character of citizens under the laws of another State, and
then asserted their rights as such, both to residence and citizenship,
within the State proscribing them? Whatever the legal consequences
might have been, other consequences would probably have resulted, of
too serious a nature not to be provided against. The new Constitution
has accordingly, with great propriety, made provision against them, and
all others proceeding from the defect of the Confederation on this
head, by authorizing the general government to establish a uniform rule
of naturalization throughout the United States. The power of
establishing uniform laws of bankruptcy is so intimately connected with
the regulation of commerce, and will prevent so many frauds where the
parties or their property may lie or be removed into different States,
that the expediency of it seems not likely to be drawn into question.
The power of prescribing by general laws, the manner in which the
public acts, records and judicial proceedings of each State shall be
proved, and the effect they shall have in other States, is an evident
and valuable improvement on the clause relating to this subject in the
articles of Confederation. The meaning of the latter is extremely
indeterminate, and can be of little importance under any interpretation
which it will bear. The power here established may be rendered a very
convenient instrument of justice, and be particularly beneficial on the
borders of contiguous States, where the effects liable to justice may
be suddenly and secretly translated, in any stage of the process,
within a foreign jurisdiction. The power of establishing post roads
must, in every view, be a harmless power, and may, perhaps, by
judicious management, become productive of great public conveniency.

Nothing which tends to facilitate the intercourse between the States
can be deemed unworthy of the public care.

PUBLIUS.




THE FEDERALIST.
No. XLIII.

The Same Subject Continued (The Powers Conferred by the Constitution
Further Considered)

For the Independent Journal.

MADISON


To the People of the State of New York:

The fourth class comprises the following miscellaneous powers:1. A
power “to promote the progress of science and useful arts, by securing,
for a limited time, to authors and inventors, the exclusive right to
their respective writings and discoveries. “The utility of this power
will scarcely be questioned. The copyright of authors has been solemnly
adjudged, in Great Britain, to be a right of common law. The right to
useful inventions seems with equal reason to belong to the inventors.

The public good fully coincides in both cases with the claims of
individuals. The States cannot separately make effectual provisions for
either of the cases, and most of them have anticipated the decision of
this point, by laws passed at the instance of Congress. 2. “To exercise
exclusive legislation, in all cases whatsoever, over such district (not
exceeding ten miles square) as may, by cession of particular States and
the acceptance of Congress, become the seat of the government of the
United States; and to exercise like authority over all places purchased
by the consent of the legislatures of the States in which the same
shall be, for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings. “The indispensable necessity of complete
authority at the seat of government, carries its own evidence with it.
It is a power exercised by every legislature of the Union, I might say
of the world, by virtue of its general supremacy. Without it, not only
the public authority might be insulted and its proceedings interrupted
with impunity; but a dependence of the members of the general
government on the State comprehending the seat of the government, for
protection in the exercise of their duty, might bring on the national
councils an imputation of awe or influence, equally dishonorable to the
government and dissatisfactory to the other members of the Confederacy.
This consideration has the more weight, as the gradual accumulation of
public improvements at the stationary residence of the government would
be both too great a public pledge to be left in the hands of a single
State, and would create so many obstacles to a removal of the
government, as still further to abridge its necessary independence. The
extent of this federal district is sufficiently circumscribed to
satisfy every jealousy of an opposite nature. And as it is to be
appropriated to this use with the consent of the State ceding it; as
the State will no doubt provide in the compact for the rights and the
consent of the citizens inhabiting it; as the inhabitants will find
sufficient inducements of interest to become willing parties to the
cession; as they will have had their voice in the election of the
government which is to exercise authority over them; as a municipal
legislature for local purposes, derived from their own suffrages, will
of course be allowed them; and as the authority of the legislature of
the State, and of the inhabitants of the ceded part of it, to concur in
the cession, will be derived from the whole people of the State in
their adoption of the Constitution, every imaginable objection seems to
be obviated. The necessity of a like authority over forts, magazines,
etc., established by the general government, is not less evident. The
public money expended on such places, and the public property deposited
in them, requires that they should be exempt from the authority of the
particular State. Nor would it be proper for the places on which the
security of the entire Union may depend, to be in any degree dependent
on a particular member of it. All objections and scruples are here also
obviated, by requiring the concurrence of the States concerned, in
every such establishment. 3. “To declare the punishment of treason, but
no attainder of treason shall work corruption of blood, or forfeiture,
except during the life of the person attained. “As treason may be
committed against the United States, the authority of the United States
ought to be enabled to punish it. But as new-fangled and artificial
treasons have been the great engines by which violent factions, the
natural offspring of free government, have usually wreaked their
alternate malignity on each other, the convention have, with great
judgment, opposed a barrier to this peculiar danger, by inserting a
constitutional definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing it,
from extending the consequences of guilt beyond the person of its
author. 4. “To admit new States into the Union; but no new State shall
be formed or erected within the jurisdiction of any other State; nor
any State be formed by the junction of two or more States, or parts of
States, without the consent of the legislatures of the States
concerned, as well as of the Congress. “In the articles of
Confederation, no provision is found on this important subject. Canada
was to be admitted of right, on her joining in the measures of the
United States; and the other COLONIES, by which were evidently meant
the other British colonies, at the discretion of nine States. The
eventual establishment of NEW STATES seems to have been overlooked by
the compilers of that instrument. We have seen the inconvenience of
this omission, and the assumption of power into which Congress have
been led by it. With great propriety, therefore, has the new system
supplied the defect. The general precaution, that no new States shall
be formed, without the concurrence of the federal authority, and that
of the States concerned, is consonant to the principles which ought to
govern such transactions. The particular precaution against the
erection of new States, by the partition of a State without its
consent, quiets the jealousy of the larger States; as that of the
smaller is quieted by a like precaution, against a junction of States
without their consent. 5. “To dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the
United States, with a proviso, that nothing in the Constitution shall
be so construed as to prejudice any claims of the United States, or of
any particular State. “This is a power of very great importance, and
required by considerations similar to those which show the propriety of
the former. The proviso annexed is proper in itself, and was probably
rendered absolutely necessary by jealousies and questions concerning
the Western territory sufficiently known to the public. 6. “To
guarantee to every State in the Union a republican form of government;
to protect each of them against invasion; and on application of the
legislature, or of the executive (when the legislature cannot be
convened), against domestic violence. “In a confederacy founded on
republican principles, and composed of republican members, the
superintending government ought clearly to possess authority to defend
the system against aristocratic or monarchial innovations. The more
intimate the nature of such a union may be, the greater interest have
the members in the political institutions of each other; and the
greater right to insist that the forms of government under which the
compact was entered into should be SUBSTANTIALLY maintained. But a
right implies a remedy; and where else could the remedy be deposited,
than where it is deposited by the Constitution? Governments of
dissimilar principles and forms have been found less adapted to a
federal coalition of any sort, than those of a kindred nature. “As the
confederate republic of Germany,” says Montesquieu, “consists of free
cities and petty states, subject to different princes, experience shows
us that it is more imperfect than that of Holland and Switzerland. “
“Greece was undone,” he adds, “as soon as the king of Macedon obtained
a seat among the Amphictyons. “ In the latter case, no doubt, the
disproportionate force, as well as the monarchical form, of the new
confederate, had its share of influence on the events. It may possibly
be asked, what need there could be of such a precaution, and whether it
may not become a pretext for alterations in the State governments,
without the concurrence of the States themselves. These questions admit
of ready answers. If the interposition of the general government should
not be needed, the provision for such an event will be a harmless
superfluity only in the Constitution. But who can say what experiments
may be produced by the caprice of particular States, by the ambition of
enterprising leaders, or by the intrigues and influence of foreign
powers? To the second question it may be answered, that if the general
government should interpose by virtue of this constitutional authority,
it will be, of course, bound to pursue the authority. But the authority
extends no further than to a GUARANTY of a republican form of
government, which supposes a pre-existing government of the form which
is to be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the federal
Constitution. Whenever the States may choose to substitute other
republican forms, they have a right to do so, and to claim the federal
guaranty for the latter. The only restriction imposed on them is, that
they shall not exchange republican for antirepublican Constitutions; a
restriction which, it is presumed, will hardly be considered as a
grievance.

A protection against invasion is due from every society to the parts
composing it. The latitude of the expression here used seems to secure
each State, not only against foreign hostility, but against ambitious
or vindictive enterprises of its more powerful neighbors. The history,
both of ancient and modern confederacies, proves that the weaker
members of the union ought not to be insensible to the policy of this
article. Protection against domestic violence is added with equal
propriety. It has been remarked, that even among the Swiss cantons,
which, properly speaking, are not under one government, provision is
made for this object; and the history of that league informs us that
mutual aid is frequently claimed and afforded; and as well by the most
democratic, as the other cantons. A recent and well-known event among
ourselves has warned us to be prepared for emergencies of a like
nature. At first view, it might seem not to square with the republican
theory, to suppose, either that a majority have not the right, or that
a minority will have the force, to subvert a government; and
consequently, that the federal interposition can never be required, but
when it would be improper. But theoretic reasoning, in this as in most
other cases, must be qualified by the lessons of practice. Why may not
illicit combinations, for purposes of violence, be formed as well by a
majority of a State, especially a small State as by a majority of a
county, or a district of the same State; and if the authority of the
State ought, in the latter case, to protect the local magistracy, ought
not the federal authority, in the former, to support the State
authority? Besides, there are certain parts of the State constitutions
which are so interwoven with the federal Constitution, that a violent
blow cannot be given to the one without communicating the wound to the
other.

Insurrections in a State will rarely induce a federal interposition,
unless the number concerned in them bear some proportion to the friends
of government. It will be much better that the violence in such cases
should be repressed by the superintending power, than that the majority
should be left to maintain their cause by a bloody and obstinate
contest. The existence of a right to interpose, will generally prevent
the necessity of exerting it. Is it true that force and right are
necessarily on the same side in republican governments? May not the
minor party possess such a superiority of pecuniary resources, of
military talents and experience, or of secret succors from foreign
powers, as will render it superior also in an appeal to the sword? May
not a more compact and advantageous position turn the scale on the same
side, against a superior number so situated as to be less capable of a
prompt and collected exertion of its strength? Nothing can be more
chimerical than to imagine that in a trial of actual force, victory may
be calculated by the rules which prevail in a census of the
inhabitants, or which determine the event of an election!

May it not happen, in fine, that the minority of CITIZENS may become a
majority of PERSONS, by the accession of alien residents, of a casual
concourse of adventurers, or of those whom the constitution of the
State has not admitted to the rights of suffrage? I take no notice of
an unhappy species of population abounding in some of the States, who,
during the calm of regular government, are sunk below the level of men;
but who, in the tempestuous scenes of civil violence, may emerge into
the human character, and give a superiority of strength to any party
with which they may associate themselves. In cases where it may be
doubtful on which side justice lies, what better umpires could be
desired by two violent factions, flying to arms, and tearing a State to
pieces, than the representatives of confederate States, not heated by
the local flame? To the impartiality of judges, they would unite the
affection of friends. Happy would it be if such a remedy for its
infirmities could be enjoyed by all free governments; if a project
equally effectual could be established for the universal peace of
mankind! Should it be asked, what is to be the redress for an
insurrection pervading all the States, and comprising a superiority of
the entire force, though not a constitutional right? the answer must
be, that such a case, as it would be without the compass of human
remedies, so it is fortunately not within the compass of human
probability; and that it is a sufficient recommendation of the federal
Constitution, that it diminishes the risk of a calamity for which no
possible constitution can provide a cure. Among the advantages of a
confederate republic enumerated by Montesquieu, an important one is,
“that should a popular insurrection happen in one of the States, the
others are able to quell it. Should abuses creep into one part, they
are reformed by those that remain sound. “7. “To consider all debts
contracted, and engagements entered into, before the adoption of this
Constitution, as being no less valid against the United States, under
this Constitution, than under the Confederation. “This can only be
considered as a declaratory proposition; and may have been inserted,
among other reasons, for the satisfaction of the foreign creditors of
the United States, who cannot be strangers to the pretended doctrine,
that a change in the political form of civil society has the magical
effect of dissolving its moral obligations. Among the lesser criticisms
which have been exercised on the Constitution, it has been remarked
that the validity of engagements ought to have been asserted in favor
of the United States, as well as against them; and in the spirit which
usually characterizes little critics, the omission has been transformed
and magnified into a plot against the national rights. The authors of
this discovery may be told, what few others need to be informed of,
that as engagements are in their nature reciprocal, an assertion of
their validity on one side, necessarily involves a validity on the
other side; and that as the article is merely declaratory, the
establishment of the principle in one case is sufficient for every
case. They may be further told, that every constitution must limit its
precautions to dangers that are not altogether imaginary; and that no
real danger can exist that the government would DARE, with, or even
without, this constitutional declaration before it, to remit the debts
justly due to the public, on the pretext here condemned. 8. “To provide
for amendments to be ratified by three fourths of the States under two
exceptions only. “That useful alterations will be suggested by
experience, could not but be foreseen. It was requisite, therefore,
that a mode for introducing them should be provided. The mode preferred
by the convention seems to be stamped with every mark of propriety. It
guards equally against that extreme facility, which would render the
Constitution too mutable; and that extreme difficulty, which might
perpetuate its discovered faults. It, moreover, equally enables the
general and the State governments to originate the amendment of errors,
as they may be pointed out by the experience on one side, or on the
other. The exception in favor of the equality of suffrage in the
Senate, was probably meant as a palladium to the residuary sovereignty
of the States, implied and secured by that principle of representation
in one branch of the legislature; and was probably insisted on by the
States particularly attached to that equality. The other exception must
have been admitted on the same considerations which produced the
privilege defended by it. 9. “The ratification of the conventions of
nine States shall be sufficient for the establishment of this
Constitution between the States, ratifying the same. “This article
speaks for itself.

The express authority of the people alone could give due validity to
the Constitution. To have required the unanimous ratification of the
thirteen States, would have subjected the essential interests of the
whole to the caprice or corruption of a single member. It would have
marked a want of foresight in the convention, which our own experience
would have rendered inexcusable. Two questions of a very delicate
nature present themselves on this occasion: 1. On what principle the
Confederation, which stands in the solemn form of a compact among the
States, can be superseded without the unanimous consent of the parties
to it? 2. What relation is to subsist between the nine or more States
ratifying the Constitution, and the remaining few who do not become
parties to it? The first question is answered at once by recurring to
the absolute necessity of the case; to the great principle of
self-preservation; to the transcendent law of nature and of nature’s
God, which declares that the safety and happiness of society are the
objects at which all political institutions aim, and to which all such
institutions must be sacrificed. PERHAPS, also, an answer may be found
without searching beyond the principles of the compact itself. It has
been heretofore noted among the defects of the Confederation, that in
many of the States it had received no higher sanction than a mere
legislative ratification. The principle of reciprocality seems to
require that its obligation on the other States should be reduced to
the same standard. A compact between independent sovereigns, founded on
ordinary acts of legislative authority, can pretend to no higher
validity than a league or treaty between the parties. It is an
established doctrine on the subject of treaties, that all the articles
are mutually conditions of each other; that a breach of any one article
is a breach of the whole treaty; and that a breach, committed by either
of the parties, absolves the others, and authorizes them, if they
please, to pronounce the compact violated and void. Should it unhappily
be necessary to appeal to these delicate truths for a justification for
dispensing with the consent of particular States to a dissolution of
the federal pact, will not the complaining parties find it a difficult
task to answer the MULTIPLIED and IMPORTANT infractions with which they
may be confronted? The time has been when it was incumbent on us all to
veil the ideas which this paragraph exhibits. The scene is now changed,
and with it the part which the same motives dictate. The second
question is not less delicate; and the flattering prospect of its being
merely hypothetical forbids an overcurious discussion of it. It is one
of those cases which must be left to provide for itself. In general, it
may be observed, that although no political relation can subsist
between the assenting and dissenting States, yet the moral relations
will remain uncancelled. The claims of justice, both on one side and on
the other, will be in force, and must be fulfilled; the rights of
humanity must in all cases be duly and mutually respected; whilst
considerations of a common interest, and, above all, the remembrance of
the endearing scenes which are past, and the anticipation of a speedy
triumph over the obstacles to reunion, will, it is hoped, not urge in
vain MODERATION on one side, and PRUDENCE on the other.

PUBLIUS.




THE FEDERALIST.
No. XLIV.

Restrictions on the Authority of the Several States

From the New York Packet. Friday, January 25, 1788.

MADISON


To the People of the State of New York:

A fifth class of provisions in favor of the federal authority consists
of the following restrictions on the authority of the several States:1.
“No State shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make any thing but gold and silver a legal tender in payment of debts;
pass any bill of attainder, ex-post-facto law, or law impairing the
obligation of contracts; or grant any title of nobility. “The
prohibition against treaties, alliances, and confederations makes a
part of the existing articles of Union; and for reasons which need no
explanation, is copied into the new Constitution. The prohibition of
letters of marque is another part of the old system, but is somewhat
extended in the new. According to the former, letters of marque could
be granted by the States after a declaration of war; according to the
latter, these licenses must be obtained, as well during war as previous
to its declaration, from the government of the United States. This
alteration is fully justified by the advantage of uniformity in all
points which relate to foreign powers; and of immediate responsibility
to the nation in all those for whose conduct the nation itself is to be
responsible.

The right of coining money, which is here taken from the States, was
left in their hands by the Confederation, as a concurrent right with
that of Congress, under an exception in favor of the exclusive right of
Congress to regulate the alloy and value. In this instance, also, the
new provision is an improvement on the old. Whilst the alloy and value
depended on the general authority, a right of coinage in the particular
States could have no other effect than to multiply expensive mints and
diversify the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was originally
submitted to the federal head; and as far as the former might prevent
an inconvenient remittance of gold and silver to the central mint for
recoinage, the end can be as well attained by local mints established
under the general authority.

The extension of the prohibition to bills of credit must give pleasure
to every citizen, in proportion to his love of justice and his
knowledge of the true springs of public prosperity. The loss which
America has sustained since the peace, from the pestilent effects of
paper money on the necessary confidence between man and man, on the
necessary confidence in the public councils, on the industry and morals
of the people, and on the character of republican government,
constitutes an enormous debt against the States chargeable with this
unadvised measure, which must long remain unsatisfied; or rather an
accumulation of guilt, which can be expiated no otherwise than by a
voluntary sacrifice on the altar of justice, of the power which has
been the instrument of it. In addition to these persuasive
considerations, it may be observed, that the same reasons which show
the necessity of denying to the States the power of regulating coin,
prove with equal force that they ought not to be at liberty to
substitute a paper medium in the place of coin. Had every State a right
to regulate the value of its coin, there might be as many different
currencies as States, and thus the intercourse among them would be
impeded; retrospective alterations in its value might be made, and thus
the citizens of other States be injured, and animosities be kindled
among the States themselves. The subjects of foreign powers might
suffer from the same cause, and hence the Union be discredited and
embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper
money, than to coin gold or silver. The power to make any thing but
gold and silver a tender in payment of debts, is withdrawn from the
States, on the same principle with that of issuing a paper currency.
Bills of attainder, ex-post-facto laws, and laws impairing the
obligation of contracts, are contrary to the first principles of the
social compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to some of
the State constitutions, and all of them are prohibited by the spirit
and scope of these fundamental charters. Our own experience has taught
us, nevertheless, that additional fences against these dangers ought
not to be omitted. Very properly, therefore, have the convention added
this constitutional bulwark in favor of personal security and private
rights; and I am much deceived if they have not, in so doing, as
faithfully consulted the genuine sentiments as the undoubted interests
of their constituents. The sober people of America are weary of the
fluctuating policy which has directed the public councils. They have
seen with regret and indignation that sudden changes and legislative
interferences, in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators, and snares to the
more-industrious and less-informed part of the community. They have
seen, too, that one legislative interference is but the first link of a
long chain of repetitions, every subsequent interference being
naturally produced by the effects of the preceding. They very rightly
infer, therefore, that some thorough reform is wanting, which will
banish speculations on public measures, inspire a general prudence and
industry, and give a regular course to the business of society. The
prohibition with respect to titles of nobility is copied from the
articles of Confederation and needs no comment. 2. “No State shall,
without the consent of the Congress, lay any imposts or duties on
imports or exports, except what may be absolutely necessary for
executing its inspection laws, and the net produce of all duties and
imposts laid by any State on imports or exports, shall be for the use
of the treasury of the United States; and all such laws shall be
subject to the revision and control of the Congress. No State shall,
without the consent of Congress, lay any duty on tonnage, keep troops
or ships of war in time of peace, enter into any agreement or compact
with another State, or with a foreign power, or engage in war unless
actually invaded, or in such imminent danger as will not admit of
delay. “The restraint on the power of the States over imports and
exports is enforced by all the arguments which prove the necessity of
submitting the regulation of trade to the federal councils. It is
needless, therefore, to remark further on this head, than that the
manner in which the restraint is qualified seems well calculated at
once to secure to the States a reasonable discretion in providing for
the conveniency of their imports and exports, and to the United States
a reasonable check against the abuse of this discretion.

The remaining particulars of this clause fall within reasonings which
are either so obvious, or have been so fully developed, that they may
be passed over without remark. The SIXTH and last class consists of the
several powers and provisions by which efficacy is given to all the
rest. 1. Of these the first is, the “power to make all laws which shall
be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or officer
thereof. “Few parts of the Constitution have been assailed with more
intemperance than this; yet on a fair investigation of it, no part can
appear more completely invulnerable. Without the SUBSTANCE of this
power, the whole Constitution would be a dead letter. Those who object
to the article, therefore, as a part of the Constitution, can only mean
that the FORM of the provision is improper. But have they considered
whether a better form could have been substituted? There are four other
possible methods which the Constitution might have taken on this
subject. They might have copied the second article of the existing
Confederation, which would have prohibited the exercise of any power
not EXPRESSLY delegated; they might have attempted a positive
enumeration of the powers comprehended under the general terms
“necessary and proper”; they might have attempted a negative
enumeration of them, by specifying the powers excepted from the general
definition; they might have been altogether silent on the subject,
leaving these necessary and proper powers to construction and
inference. Had the convention taken the first method of adopting the
second article of Confederation, it is evident that the new Congress
would be continually exposed, as their predecessors have been, to the
alternative of construing the term “EXPRESSLY” with so much rigor, as
to disarm the government of all real authority whatever, or with so
much latitude as to destroy altogether the force of the restriction.

It would be easy to show, if it were necessary, that no important
power, delegated by the articles of Confederation, has been or can be
executed by Congress, without recurring more or less to the doctrine of
CONSTRUCTION or IMPLICATION. As the powers delegated under the new
system are more extensive, the government which is to administer it
would find itself still more distressed with the alternative of
betraying the public interests by doing nothing, or of violating the
Constitution by exercising powers indispensably necessary and proper,
but, at the same time, not EXPRESSLY granted. Had the convention
attempted a positive enumeration of the powers necessary and proper for
carrying their other powers into effect, the attempt would have
involved a complete digest of laws on every subject to which the
Constitution relates; accommodated too, not only to the existing state
of things, but to all the possible changes which futurity may produce;
for in every new application of a general power, the PARTICULAR POWERS,
which are the means of attaining the OBJECT of the general power, must
always necessarily vary with that object, and be often properly varied
whilst the object remains the same.

Had they attempted to enumerate the particular powers or means not
necessary or proper for carrying the general powers into execution, the
task would have been no less chimerical; and would have been liable to
this further objection, that every defect in the enumeration would have
been equivalent to a positive grant of authority. If, to avoid this
consequence, they had attempted a partial enumeration of the
exceptions, and described the residue by the general terms, NOT
NECESSARY OR PROPER, it must have happened that the enumeration would
comprehend a few of the excepted powers only; that these would be such
as would be least likely to be assumed or tolerated, because the
enumeration would of course select such as would be least necessary or
proper; and that the unnecessary and improper powers included in the
residuum, would be less forcibly excepted, than if no partial
enumeration had been made. Had the Constitution been silent on this
head, there can be no doubt that all the particular powers requisite as
means of executing the general powers would have resulted to the
government, by unavoidable implication. No axiom is more clearly
established in law, or in reason, than that wherever the end is
required, the means are authorized; wherever a general power to do a
thing is given, every particular power necessary for doing it is
included. Had this last method, therefore, been pursued by the
convention, every objection now urged against their plan would remain
in all its plausibility; and the real inconveniency would be incurred
of not removing a pretext which may be seized on critical occasions for
drawing into question the essential powers of the Union. If it be asked
what is to be the consequence, in case the Congress shall misconstrue
this part of the Constitution, and exercise powers not warranted by its
true meaning, I answer, the same as if they should misconstrue or
enlarge any other power vested in them; as if the general power had
been reduced to particulars, and any one of these were to be violated;
the same, in short, as if the State legislatures should violate the
irrespective constitutional authorities. In the first instance, the
success of the usurpation will depend on the executive and judiciary
departments, which are to expound and give effect to the legislative
acts; and in the last resort a remedy must be obtained from the people
who can, by the election of more faithful representatives, annul the
acts of the usurpers. The truth is, that this ultimate redress may be
more confided in against unconstitutional acts of the federal than of
the State legislatures, for this plain reason, that as every such act
of the former will be an invasion of the rights of the latter, these
will be ever ready to mark the innovation, to sound the alarm to the
people, and to exert their local influence in effecting a change of
federal representatives. There being no such intermediate body between
the State legislatures and the people interested in watching the
conduct of the former, violations of the State constitutions are more
likely to remain unnoticed and unredressed. 2. “This Constitution and
the laws of the United States which shall be made in pursuance thereof,
and all treaties made, or which shall be made, under the authority of
the United States, shall be the supreme law of the land, and the judges
in every State shall be bound thereby, any thing in the constitution or
laws of any State to the contrary notwithstanding. “The indiscreet zeal
of the adversaries to the Constitution has betrayed them into an attack
on this part of it also, without which it would have been evidently and
radically defective. To be fully sensible of this, we need only suppose
for a moment that the supremacy of the State constitutions had been
left complete by a saving clause in their favor. In the first place, as
these constitutions invest the State legislatures with absolute
sovereignty, in all cases not excepted by the existing articles of
Confederation, all the authorities contained in the proposed
Constitution, so far as they exceed those enumerated in the
Confederation, would have been annulled, and the new Congress would
have been reduced to the same impotent condition with their
predecessors. In the next place, as the constitutions of some of the
States do not even expressly and fully recognize the existing powers of
the Confederacy, an express saving of the supremacy of the former
would, in such States, have brought into question every power contained
in the proposed Constitution. In the third place, as the constitutions
of the States differ much from each other, it might happen that a
treaty or national law, of great and equal importance to the States,
would interfere with some and not with other constitutions, and would
consequently be valid in some of the States, at the same time that it
would have no effect in others. In fine, the world would have seen, for
the first time, a system of government founded on an inversion of the
fundamental principles of all government; it would have seen the
authority of the whole society every where subordinate to the authority
of the parts; it would have seen a monster, in which the head was under
the direction of the members. 3. “The Senators and Representatives, and
the members of the several State legislatures, and all executive and
judicial officers, both of the United States and the several States,
shall be bound by oath or affirmation to support this Constitution. “It
has been asked why it was thought necessary, that the State magistracy
should be bound to support the federal Constitution, and unnecessary
that a like oath should be imposed on the officers of the United
States, in favor of the State constitutions. Several reasons might be
assigned for the distinction. I content myself with one, which is
obvious and conclusive. The members of the federal government will have
no agency in carrying the State constitutions into effect. The members
and officers of the State governments, on the contrary, will have an
essential agency in giving effect to the federal Constitution. The
election of the President and Senate will depend, in all cases, on the
legislatures of the several States. And the election of the House of
Representatives will equally depend on the same authority in the first
instance; and will, probably, forever be conducted by the officers, and
according to the laws, of the States. 4. Among the provisions for
giving efficacy to the federal powers might be added those which belong
to the executive and judiciary departments: but as these are reserved
for particular examination in another place, I pass them over in this.
We have now reviewed, in detail, all the articles composing the sum or
quantity of power delegated by the proposed Constitution to the federal
government, and are brought to this undeniable conclusion, that no part
of the power is unnecessary or improper for accomplishing the necessary
objects of the Union. The question, therefore, whether this amount of
power shall be granted or not, resolves itself into another question,
whether or not a government commensurate to the exigencies of the Union
shall be established; or, in other words, whether the Union itself
shall be preserved.

PUBLIUS.




THE FEDERALIST.
No. XLV.

The Alleged Danger From the Powers of the Union to the State
Governments Considered

For the Independent Journal.

MADISON


To the People of the State of New York:

Having shown that no one of the powers transferred to the federal
government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous to the
portion of authority left in the several States. The adversaries to the
plan of the convention, instead of considering in the first place what
degree of power was absolutely necessary for the purposes of the
federal government, have exhausted themselves in a secondary inquiry
into the possible consequences of the proposed degree of power to the
governments of the particular States. But if the Union, as has been
shown, be essential to the security of the people of America against
foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be essential to
guard them against those violent and oppressive factions which embitter
the blessings of liberty, and against those military establishments
which must gradually poison its very fountain; if, in a word, the Union
be essential to the happiness of the people of America, is it not
preposterous, to urge as an objection to a government, without which
the objects of the Union cannot be attained, that such a government may
derogate from the importance of the governments of the individual
States? Was, then, the American Revolution effected, was the American
Confederacy formed, was the precious blood of thousands spilt, and the
hard-earned substance of millions lavished, not that the people of
America should enjoy peace, liberty, and safety, but that the
government of the individual States, that particular municipal
establishments, might enjoy a certain extent of power, and be arrayed
with certain dignities and attributes of sovereignty? We have heard of
the impious doctrine in the Old World, that the people were made for
kings, not kings for the people. Is the same doctrine to be revived in
the New, in another shape that the solid happiness of the people is to
be sacrificed to the views of political institutions of a different
form? It is too early for politicians to presume on our forgetting that
the public good, the real welfare of the great body of the people, is
the supreme object to be pursued; and that no form of government
whatever has any other value than as it may be fitted for the
attainment of this object. Were the plan of the convention adverse to
the public happiness, my voice would be, Reject the plan. Were the
Union itself inconsistent with the public happiness, it would be,
Abolish the Union. In like manner, as far as the sovereignty of the
States cannot be reconciled to the happiness of the people, the voice
of every good citizen must be,

Let the former be sacrificed to the latter. How far the sacrifice is
necessary, has been shown. How far the unsacrificed residue will be
endangered, is the question before us. Several important considerations
have been touched in the course of these papers, which discountenance
the supposition that the operation of the federal government will by
degrees prove fatal to the State governments. The more I revolve the
subject, the more fully I am persuaded that the balance is much more
likely to be disturbed by the preponderancy of the last than of the
first scale. We have seen, in all the examples of ancient and modern
confederacies, the strongest tendency continually betraying itself in
the members, to despoil the general government of its authorities, with
a very ineffectual capacity in the latter to defend itself against the
encroachments. Although, in most of these examples, the system has been
so dissimilar from that under consideration as greatly to weaken any
inference concerning the latter from the fate of the former, yet, as
the States will retain, under the proposed Constitution, a very
extensive portion of active sovereignty, the inference ought not to be
wholly disregarded. In the Achaean league it is probable that the
federal head had a degree and species of power, which gave it a
considerable likeness to the government framed by the convention. The
Lycian Confederacy, as far as its principles and form are transmitted,
must have borne a still greater analogy to it. Yet history does not
inform us that either of them ever degenerated, or tended to
degenerate, into one consolidated government. On the contrary, we know
that the ruin of one of them proceeded from the incapacity of the
federal authority to prevent the dissensions, and finally the disunion,
of the subordinate authorities. These cases are the more worthy of our
attention, as the external causes by which the component parts were
pressed together were much more numerous and powerful than in our case;
and consequently less powerful ligaments within would be sufficient to
bind the members to the head, and to each other. In the feudal system,
we have seen a similar propensity exemplified. Notwithstanding the want
of proper sympathy in every instance between the local sovereigns and
the people, and the sympathy in some instances between the general
sovereign and the latter, it usually happened that the local sovereigns
prevailed in the rivalship for encroachments.

Had no external dangers enforced internal harmony and subordination,
and particularly, had the local sovereigns possessed the affections of
the people, the great kingdoms in Europe would at this time consist of
as many independent princes as there were formerly feudatory barons.
The State government will have the advantage of the Federal government,
whether we compare them in respect to the immediate dependence of the
one on the other; to the weight of personal influence which each side
will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the disposition and
faculty of resisting and frustrating the measures of each other. The
State governments may be regarded as constituent and essential parts of
the federal government; whilst the latter is nowise essential to the
operation or organization of the former. Without the intervention of
the State legislatures, the President of the United States cannot be
elected at all. They must in all cases have a great share in his
appointment, and will, perhaps, in most cases, of themselves determine
it. The Senate will be elected absolutely and exclusively by the State
legislatures. Even the House of Representatives, though drawn
immediately from the people, will be chosen very much under the
influence of that class of men, whose influence over the people obtains
for themselves an election into the State legislatures. Thus, each of
the principal branches of the federal government will owe its existence
more or less to the favor of the State governments, and must
consequently feel a dependence, which is much more likely to beget a
disposition too obsequious than too overbearing towards them. On the
other side, the component parts of the State governments will in no
instance be indebted for their appointment to the direct agency of the
federal government, and very little, if at all, to the local influence
of its members. The number of individuals employed under the
Constitution of the United States will be much smaller than the number
employed under the particular States.

There will consequently be less of personal influence on the side of
the former than of the latter. The members of the legislative,
executive, and judiciary departments of thirteen and more States, the
justices of peace, officers of militia, ministerial officers of
justice, with all the county, corporation, and town officers, for three
millions and more of people, intermixed, and having particular
acquaintance with every class and circle of people, must exceed, beyond
all proportion, both in number and influence, those of every
description who will be employed in the administration of the federal
system. Compare the members of the three great departments of the
thirteen States, excluding from the judiciary department the justices
of peace, with the members of the corresponding departments of the
single government of the Union; compare the militia officers of three
millions of people with the military and marine officers of any
establishment which is within the compass of probability, or, I may
add, of possibility, and in this view alone, we may pronounce the
advantage of the States to be decisive. If the federal government is to
have collectors of revenue, the State governments will have theirs
also. And as those of the former will be principally on the seacoast,
and not very numerous, whilst those of the latter will be spread over
the face of the country, and will be very numerous, the advantage in
this view also lies on the same side. I

t is true, that the Confederacy is to possess, and may exercise, the
power of collecting internal as well as external taxes throughout the
States; but it is probable that this power will not be resorted to,
except for supplemental purposes of revenue; that an option will then
be given to the States to supply their quotas by previous collections
of their own; and that the eventual collection, under the immediate
authority of the Union, will generally be made by the officers, and
according to the rules, appointed by the several States. Indeed it is
extremely probable, that in other instances, particularly in the
organization of the judicial power, the officers of the States will be
clothed with the correspondent authority of the Union.

Should it happen, however, that separate collectors of internal revenue
should be appointed under the federal government, the influence of the
whole number would not bear a comparison with that of the multitude of
State officers in the opposite scale.

Within every district to which a federal collector would be allotted,
there would not be less than thirty or forty, or even more, officers of
different descriptions, and many of them persons of character and
weight, whose influence would lie on the side of the State. The powers
delegated by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State governments are
numerous and indefinite. The former will be exercised principally on
external objects, as war, peace, negotiation, and foreign commerce;
with which last the power of taxation will, for the most part, be
connected. The powers reserved to the several States will extend to all
the objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal order,
improvement, and prosperity of the State. The operations of the federal
government will be most extensive and important in times of war and
danger; those of the State governments, in times of peace and security.
As the former periods will probably bear a small proportion to the
latter, the State governments will here enjoy another advantage over
the federal government. The more adequate, indeed, the federal powers
may be rendered to the national defense, the less frequent will be
those scenes of danger which might favor their ascendancy over the
governments of the particular States. If the new Constitution be
examined with accuracy and candor, it will be found that the change
which it proposes consists much less in the addition of NEW POWERS to
the Union, than in the invigoration of its ORIGINAL POWERS. The
regulation of commerce, it is true, is a new power; but that seems to
be an addition which few oppose, and from which no apprehensions are
entertained. The powers relating to war and peace, armies and fleets,
treaties and finance, with the other more considerable powers, are all
vested in the existing Congress by the articles of Confederation. The
proposed change does not enlarge these powers; it only substitutes a
more effectual mode of administering them. The change relating to
taxation may be regarded as the most important; and yet the present
Congress have as complete authority to REQUIRE of the States indefinite
supplies of money for the common defense and general welfare, as the
future Congress will have to require them of individual citizens; and
the latter will be no more bound than the States themselves have been,
to pay the quotas respectively taxed on them. Had the States complied
punctually with the articles of Confederation, or could their
compliance have been enforced by as peaceable means as may be used with
success towards single persons, our past experience is very far from
countenancing an opinion, that the State governments would have lost
their constitutional powers, and have gradually undergone an entire
consolidation. To maintain that such an event would have ensued, would
be to say at once, that the existence of the State governments is
incompatible with any system whatever that accomplishes the essential
purposes of the Union.

PUBLIUS.




THE FEDERALIST.
No. XLVI.

The Influence of the State and Federal Governments Compared

From the New York Packet. Tuesday, January 29, 1788.

MADISON


To the People of the State of New York:

Resuming the subject of the last paper, I proceed to inquire whether
the federal government or the State governments will have the advantage
with regard to the predilection and support of the people.
Notwithstanding the different modes in which they are appointed, we
must consider both of them as substantially dependent on the great body
of the citizens of the United States.

I assume this position here as it respects the first, reserving the
proofs for another place. The federal and State governments are in fact
but different agents and trustees of the people, constituted with
different powers, and designed for different purposes. The adversaries
of the Constitution seem to have lost sight of the people altogether in
their reasonings on this subject; and to have viewed these different
establishments, not only as mutual rivals and enemies, but as
uncontrolled by any common superior in their efforts to usurp the
authorities of each other. These gentlemen must here be reminded of
their error. They must be told that the ultimate authority, wherever
the derivative may be found, resides in the people alone, and that it
will not depend merely on the comparative ambition or address of the
different governments, whether either, or which of them, will be able
to enlarge its sphere of jurisdiction at the expense of the other.
Truth, no less than decency, requires that the event in every case
should be supposed to depend on the sentiments and sanction of their
common constituents. Many considerations, besides those suggested on a
former occasion, seem to place it beyond doubt that the first and most
natural attachment of the people will be to the governments of their
respective States.

Into the administration of these a greater number of individuals will
expect to rise. From the gift of these a greater number of offices and
emoluments will flow. By the superintending care of these, all the more
domestic and personal interests of the people will be regulated and
provided for. With the affairs of these, the people will be more
familiarly and minutely conversant. And with the members of these, will
a greater proportion of the people have the ties of personal
acquaintance and friendship, and of family and party attachments; on
the side of these, therefore, the popular bias may well be expected
most strongly to incline. Experience speaks the same language in this
case. The federal administration, though hitherto very defective in
comparison with what may be hoped under a better system, had, during
the war, and particularly whilst the independent fund of paper
emissions was in credit, an activity and importance as great as it can
well have in any future circumstances whatever.

It was engaged, too, in a course of measures which had for their object
the protection of everything that was dear, and the acquisition of
everything that could be desirable to the people at large. It was,
nevertheless, invariably found, after the transient enthusiasm for the
early Congresses was over, that the attention and attachment of the
people were turned anew to their own particular governments; that the
federal council was at no time the idol of popular favor; and that
opposition to proposed enlargements of its powers and importance was
the side usually taken by the men who wished to build their political
consequence on the prepossessions of their fellow-citizens. If,
therefore, as has been elsewhere remarked, the people should in future
become more partial to the federal than to the State governments, the
change can only result from such manifest and irresistible proofs of a
better administration, as will overcome all their antecedent
propensities. And in that case, the people ought not surely to be
precluded from giving most of their confidence where they may discover
it to be most due; but even in that case the State governments could
have little to apprehend, because it is only within a certain sphere
that the federal power can, in the nature of things, be advantageously
administered. The remaining points on which I propose to compare the
federal and State governments, are the disposition and the faculty they
may respectively possess, to resist and frustrate the measures of each
other. It has been already proved that the members of the federal will
be more dependent on the members of the State governments, than the
latter will be on the former. It has appeared also, that the
prepossessions of the people, on whom both will depend, will be more on
the side of the State governments, than of the federal government. So
far as the disposition of each towards the other may be influenced by
these causes, the State governments must clearly have the advantage.

But in a distinct and very important point of view, the advantage will
lie on the same side. The prepossessions, which the members themselves
will carry into the federal government, will generally be favorable to
the States; whilst it will rarely happen, that the members of the State
governments will carry into the public councils a bias in favor of the
general government. A local spirit will infallibly prevail much more in
the members of Congress, than a national spirit will prevail in the
legislatures of the particular States. Every one knows that a great
proportion of the errors committed by the State legislatures proceeds
from the disposition of the members to sacrifice the comprehensive and
permanent interest of the State, to the particular and separate views
of the counties or districts in which they reside. And if they do not
sufficiently enlarge their policy to embrace the collective welfare of
their particular State, how can it be imagined that they will make the
aggregate prosperity of the Union, and the dignity and respectability
of its government, the objects of their affections and consultations?
For the same reason that the members of the State legislatures will be
unlikely to attach themselves sufficiently to national objects, the
members of the federal legislature will be likely to attach themselves
too much to local objects. The States will be to the latter what
counties and towns are to the former. Measures will too often be
decided according to their probable effect, not on the national
prosperity and happiness, but on the prejudices, interests, and
pursuits of the governments and people of the individual States. What
is the spirit that has in general characterized the proceedings of
Congress? A perusal of their journals, as well as the candid
acknowledgments of such as have had a seat in that assembly, will
inform us, that the members have but too frequently displayed the
character, rather of partisans of their respective States, than of
impartial guardians of a common interest; that where on one occasion
improper sacrifices have been made of local considerations, to the
aggrandizement of the federal government, the great interests of the
nation have suffered on a hundred, from an undue attention to the local
prejudices, interests, and views of the particular States. I mean not
by these reflections to insinuate, that the new federal government will
not embrace a more enlarged plan of policy than the existing government
may have pursued; much less, that its views will be as confined as
those of the State legislatures; but only that it will partake
sufficiently of the spirit of both, to be disinclined to invade the
rights of the individual States, or the preorgatives of their
governments. The motives on the part of the State governments, to
augment their prerogatives by defalcations from the federal government,
will be overruled by no reciprocal predispositions in the members. Were
it admitted, however, that the Federal government may feel an equal
disposition with the State governments to extend its power beyond the
due limits, the latter would still have the advantage in the means of
defeating such encroachments. If an act of a particular State, though
unfriendly to the national government, be generally popular in that
State and should not too grossly violate the oaths of the State
officers, it is executed immediately and, of course, by means on the
spot and depending on the State alone. The opposition of the federal
government, or the interposition of federal officers, would but inflame
the zeal of all parties on the side of the State, and the evil could
not be prevented or repaired, if at all, without the employment of
means which must always be resorted to with reluctance and difficulty.

On the other hand, should an unwarrantable measure of the federal
government be unpopular in particular States, which would seldom fail
to be the case, or even a warrantable measure be so, which may
sometimes be the case, the means of opposition to it are powerful and
at hand. The disquietude of the people; their repugnance and, perhaps,
refusal to co-operate with the officers of the Union; the frowns of the
executive magistracy of the State; the embarrassments created by
legislative devices, which would often be added on such occasions,
would oppose, in any State, difficulties not to be despised; would
form, in a large State, very serious impediments; and where the
sentiments of several adjoining States happened to be in unison, would
present obstructions which the federal government would hardly be
willing to encounter. But ambitious encroachments of the federal
government, on the authority of the State governments, would not excite
the opposition of a single State, or of a few States only. They would
be signals of general alarm. Every government would espouse the common
cause. A correspondence would be opened. Plans of resistance would be
concerted. One spirit would animate and conduct the whole. The same
combinations, in short, would result from an apprehension of the
federal, as was produced by the dread of a foreign, yoke; and unless
the projected innovations should be voluntarily renounced, the same
appeal to a trial of force would be made in the one case as was made in
the other. But what degree of madness could ever drive the federal
government to such an extremity. In the contest with Great Britain, one
part of the empire was employed against the other.

The more numerous part invaded the rights of the less numerous part.
The attempt was unjust and unwise; but it was not in speculation
absolutely chimerical. But what would be the contest in the case we are
supposing? Who would be the parties? A few representatives of the
people would be opposed to the people themselves; or rather one set of
representatives would be contending against thirteen sets of
representatives, with the whole body of their common constituents on
the side of the latter. The only refuge left for those who prophesy the
downfall of the State governments is the visionary supposition that the
federal government may previously accumulate a military force for the
projects of ambition. The reasonings contained in these papers must
have been employed to little purpose indeed, if it could be necessary
now to disprove the reality of this danger. That the people and the
States should, for a sufficient period of time, elect an uninterrupted
succession of men ready to betray both; that the traitors should,
throughout this period, uniformly and systematically pursue some fixed
plan for the extension of the military establishment; that the
governments and the people of the States should silently and patiently
behold the gathering storm, and continue to supply the materials, until
it should be prepared to burst on their own heads, must appear to every
one more like the incoherent dreams of a delirious jealousy, or the
misjudged exaggerations of a counterfeit zeal, than like the sober
apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a
regular army, fully equal to the resources of the country, be formed;
and let it be entirely at the devotion of the federal government; still
it would not be going too far to say, that the State governments, with
the people on their side, would be able to repel the danger. The
highest number to which, according to the best computation, a standing
army can be carried in any country, does not exceed one hundredth part
of the whole number of souls; or one twenty-fifth part of the number
able to bear arms. This proportion would not yield, in the United
States, an army of more than twenty-five or thirty thousand men. To
these would be opposed a militia amounting to near half a million of
citizens with arms in their hands, officered by men chosen from among
themselves, fighting for their common liberties, and united and
conducted by governments possessing their affections and confidence. It
may well be doubted, whether a militia thus circumstanced could ever be
conquered by such a proportion of regular troops. Those who are best
acquainted with the last successful resistance of this country against
the British arms, will be most inclined to deny the possibility of it.
Besides the advantage of being armed, which the Americans possess over
the people of almost every other nation, the existence of subordinate
governments, to which the people are attached, and by which the militia
officers are appointed, forms a barrier against the enterprises of
ambition, more insurmountable than any which a simple government of any
form can admit of. Notwithstanding the military establishments in the
several kingdoms of Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the people
with arms. And it is not certain, that with this aid alone they would
not be able to shake off their yokes. But were the people to possess
the additional advantages of local governments chosen by themselves,
who could collect the national will and direct the national force, and
of officers appointed out of the militia, by these governments, and
attached both to them and to the militia, it may be affirmed with the
greatest assurance, that the throne of every tyranny in Europe would be
speedily overturned in spite of the legions which surround it. Let us
not insult the free and gallant citizens of America with the suspicion,
that they would be less able to defend the rights of which they would
be in actual possession, than the debased subjects of arbitrary power
would be to rescue theirs from the hands of their oppressors. Let us
rather no longer insult them with the supposition that they can ever
reduce themselves to the necessity of making the experiment, by a blind
and tame submission to the long train of insidious measures which must
precede and produce it. The argument under the present head may be put
into a very concise form, which appears altogether conclusive. Either
the mode in which the federal government is to be constructed will
render it sufficiently dependent on the people, or it will not. On the
first supposition, it will be restrained by that dependence from
forming schemes obnoxious to their constituents. On the other
supposition, it will not possess the confidence of the people, and its
schemes of usurpation will be easily defeated by the State governments,
who will be supported by the people. On summing up the considerations
stated in this and the last paper, they seem to amount to the most
convincing evidence, that the powers proposed to be lodged in the
federal government are as little formidable to those reserved to the
individual States, as they are indispensably necessary to accomplish
the purposes of the Union; and that all those alarms which have been
sounded, of a meditated and consequential annihilation of the State
governments, must, on the most favorable interpretation, be ascribed to
the chimerical fears of the authors of them.

PUBLIUS.




THE FEDERALIST.
No. XLVII.

The Particular Structure of the New Government and the Distribution of
Power Among Its Different Parts

From the New York Packet. Friday, February 1, 1788.

MADISON


To the People of the State of New York:

Having reviewed the general form of the proposed government and the
general mass of power allotted to it, I proceed to examine the
particular structure of this government, and the distribution of this
mass of power among its constituent parts. One of the principal
objections inculcated by the more respectable adversaries to the
Constitution, is its supposed violation of the political maxim, that
the legislative, executive, and judiciary departments ought to be
separate and distinct. In the structure of the federal government, no
regard, it is said, seems to have been paid to this essential
precaution in favor of liberty. The several departments of power are
distributed and blended in such a manner as at once to destroy all
symmetry and beauty of form, and to expose some of the essential parts
of the edifice to the danger of being crushed by the disproportionate
weight of other parts. No political truth is certainly of greater
intrinsic value, or is stamped with the authority of more enlightened
patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and judiciary,
in the same hands, whether of one, a few, or many, and whether
hereditary, selfappointed, or elective, may justly be pronounced the
very definition of tyranny. Were the federal Constitution, therefore,
really chargeable with the accumulation of power, or with a mixture of
powers, having a dangerous tendency to such an accumulation, no further
arguments would be necessary to inspire a universal reprobation of the
system. I persuade myself, however, that it will be made apparent to
every one, that the charge cannot be supported, and that the maxim on
which it relies has been totally misconceived and misapplied. In order
to form correct ideas on this important subject, it will be proper to
investigate the sense in which the preservation of liberty requires
that the three great departments of power should be separate and
distinct. The oracle who is always consulted and cited on this subject
is the celebrated Montesquieu. If he be not the author of this
invaluable precept in the science of politics, he has the merit at
least of displaying and recommending it most effectually to the
attention of mankind. Let us endeavor, in the first place, to ascertain
his meaning on this point. The British Constitution was to Montesquieu
what Homer has been to the didactic writers on epic poetry. As the
latter have considered the work of the immortal bard as the perfect
model from which the principles and rules of the epic art were to be
drawn, and by which all similar works were to be judged, so this great
political critic appears to have viewed the Constitution of England as
the standard, or to use his own expression, as the mirror of political
liberty; and to have delivered, in the form of elementary truths, the
several characteristic principles of that particular system. That we
may be sure, then, not to mistake his meaning in this case, let us
recur to the source from which the maxim was drawn. On the slightest
view of the British Constitution, we must perceive that the
legislative, executive, and judiciary departments are by no means
totally separate and distinct from each other. The executive magistrate
forms an integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which, when
made, have, under certain limitations, the force of legislative acts.
All the members of the judiciary department are appointed by him, can
be removed by him on the address of the two Houses of Parliament, and
form, when he pleases to consult them, one of his constitutional
councils. One branch of the legislative department forms also a great
constitutional council to the executive chief, as, on another hand, it
is the sole depositary of judicial power in cases of impeachment, and
is invested with the supreme appellate jurisdiction in all other cases.
The judges, again, are so far connected with the legislative department
as often to attend and participate in its deliberations, though not
admitted to a legislative vote. From these facts, by which Montesquieu
was guided, it may clearly be inferred that, in saying “There can be no
liberty where the legislative and executive powers are united in the
same person, or body of magistrates,” or, “if the power of judging be
not separated from the legislative and executive powers,” he did not
mean that these departments ought to have no PARTIAL AGENCY in, or no
CONTROL over, the acts of each other. His meaning, as his own words
import, and still more conclusively as illustrated by the example in
his eye, can amount to no more than this, that where the WHOLE power of
one department is exercised by the same hands which possess the WHOLE
power of another department, the fundamental principles of a free
constitution are subverted. This would have been the case in the
constitution examined by him, if the king, who is the sole executive
magistrate, had possessed also the complete legislative power, or the
supreme administration of justice; or if the entire legislative body
had possessed the supreme judiciary, or the supreme executive
authority. This, however, is not among the vices of that constitution.
The magistrate in whom the whole executive power resides cannot of
himself make a law, though he can put a negative on every law; nor
administer justice in person, though he has the appointment of those
who do administer it. The judges can exercise no executive prerogative,
though they are shoots from the executive stock; nor any legislative
function, though they may be advised with by the legislative councils.
The entire legislature can perform no judiciary act, though by the
joint act of two of its branches the judges may be removed from their
offices, and though one of its branches is possessed of the judicial
power in the last resort. The entire legislature, again, can exercise
no executive prerogative, though one of its branches constitutes the
supreme executive magistracy, and another, on the impeachment of a
third, can try and condemn all the subordinate officers in the
executive department. The reasons on which Montesquieu grounds his
maxim are a further demonstration of his meaning. “When the legislative
and executive powers are united in the same person or body,” says he,
“there can be no liberty, because apprehensions may arise lest THE SAME
monarch or senate should ENACT tyrannical laws to EXECUTE them in a
tyrannical manner. “ Again: “Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to
arbitrary control, for THE JUDGE would then be THE LEGISLATOR.

Were it joined to the executive power, THE JUDGE might behave with all
the violence of AN OPPRESSOR. “ Some of these reasons are more fully
explained in other passages; but briefly stated as they are here, they
sufficiently establish the meaning which we have put on this celebrated
maxim of this celebrated author.

If we look into the constitutions of the several States, we find that,
notwithstanding the emphatical and, in some instances, the unqualified
terms in which this axiom has been laid down, there is not a single
instance in which the several departments of power have been kept
absolutely separate and distinct. New Hampshire, whose constitution was
the last formed, seems to have been fully aware of the impossibility
and inexpediency of avoiding any mixture whatever of these departments,
and has qualified the doctrine by declaring “that the legislative,
executive, and judiciary powers ought to be kept as separate from, and
independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL
ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE
WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND
AMITY. “ Her constitution accordingly mixes these departments in
several respects. The Senate, which is a branch of the legislative
department, is also a judicial tribunal for the trial of impeachments.
The President, who is the head of the executive department, is the
presiding member also of the Senate; and, besides an equal vote in all
cases, has a casting vote in case of a tie. The executive head is
himself eventually elective every year by the legislative department,
and his council is every year chosen by and from the members of the
same department. Several of the officers of state are also appointed by
the legislature. And the members of the judiciary department are
appointed by the executive department. The constitution of
Massachusetts has observed a sufficient though less pointed caution, in
expressing this fundamental article of liberty. It declares “that the
legislative department shall never exercise the executive and judicial
powers, or either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; the judicial shall
never exercise the legislative and executive powers, or either of them.
“ This declaration corresponds precisely with the doctrine of
Montesquieu, as it has been explained, and is not in a single point
violated by the plan of the convention. It goes no farther than to
prohibit any one of the entire departments from exercising the powers
of another department. In the very Constitution to which it is
prefixed, a partial mixture of powers has been admitted. The executive
magistrate has a qualified negative on the legislative body, and the
Senate, which is a part of the legislature, is a court of impeachment
for members both of the executive and judiciary departments. The
members of the judiciary department, again, are appointable by the
executive department, and removable by the same authority on the
address of the two legislative branches.

Lastly, a number of the officers of government are annually appointed
by the legislative department. As the appointment to offices,
particularly executive offices, is in its nature an executive function,
the compilers of the Constitution have, in this last point at least,
violated the rule established by themselves. I pass over the
constitutions of Rhode Island and Connecticut, because they were formed
prior to the Revolution, and even before the principle under
examination had become an object of political attention. The
constitution of New York contains no declaration on this subject; but
appears very clearly to have been framed with an eye to the danger of
improperly blending the different departments. It gives, nevertheless,
to the executive magistrate, a partial control over the legislative
department; and, what is more, gives a like control to the judiciary
department; and even blends the executive and judiciary departments in
the exercise of this control. In its council of appointment members of
the legislative are associated with the executive authority, in the
appointment of officers, both executive and judiciary. And its court
for the trial of impeachments and correction of errors is to consist of
one branch of the legislature and the principal members of the
judiciary department. The constitution of New Jersey has blended the
different powers of government more than any of the preceding. The
governor, who is the executive magistrate, is appointed by the
legislature; is chancellor and ordinary, or surrogate of the State; is
a member of the Supreme Court of Appeals, and president, with a casting
vote, of one of the legislative branches. The same legislative branch
acts again as executive council of the governor, and with him
constitutes the Court of Appeals. The members of the judiciary
department are appointed by the legislative department and removable by
one branch of it, on the impeachment of the other. According to the
constitution of Pennsylvania, the president, who is the head of the
executive department, is annually elected by a vote in which the
legislative department predominates. In conjunction with an executive
council, he appoints the members of the judiciary department, and forms
a court of impeachment for trial of all officers, judiciary as well as
executive. The judges of the Supreme Court and justices of the peace
seem also to be removable by the legislature; and the executive power
of pardoning in certain cases, to be referred to the same department.
The members of the executive council are made EX-OFFICIO justices of
peace throughout the State. In Delaware, the chief executive magistrate
is annually elected by the legislative department. The speakers of the
two legislative branches are vice-presidents in the executive
department. The executive chief, with six others, appointed, three by
each of the legislative branches constitutes the Supreme Court of
Appeals; he is joined with the legislative department in the
appointment of the other judges. Throughout the States, it appears that
the members of the legislature may at the same time be justices of the
peace; in this State, the members of one branch of it are EX-OFFICIO
justices of the peace; as are also the members of the executive
council. The principal officers of the executive department are
appointed by the legislative; and one branch of the latter forms a
court of impeachments. All officers may be removed on address of the
legislature. Maryland has adopted the maxim in the most unqualified
terms; declaring that the legislative, executive, and judicial powers
of government ought to be forever separate and distinct from each
other. Her constitution, notwithstanding, makes the executive
magistrate appointable by the legislative department; and the members
of the judiciary by the executive department. The language of Virginia
is still more pointed on this subject. Her constitution declares, “that
the legislative, executive, and judiciary departments shall be separate
and distinct; so that neither exercise the powers properly belonging to
the other; nor shall any person exercise the powers of more than one of
them at the same time, except that the justices of county courts shall
be eligible to either House of Assembly. “ Yet we find not only this
express exception, with respect to the members of the inferior courts,
but that the chief magistrate, with his executive council, are
appointable by the legislature; that two members of the latter are
triennially displaced at the pleasure of the legislature; and that all
the principal offices, both executive and judiciary, are filled by the
same department. The executive prerogative of pardon, also, is in one
case vested in the legislative department. The constitution of North
Carolina, which declares “that the legislative, executive, and supreme
judicial powers of government ought to be forever separate and distinct
from each other,” refers, at the same time, to the legislative
department, the appointment not only of the executive chief, but all
the principal officers within both that and the judiciary department.
In South Carolina, the constitution makes the executive magistracy
eligible by the legislative department.

It gives to the latter, also, the appointment of the members of the
judiciary department, including even justices of the peace and
sheriffs; and the appointment of officers in the executive department,
down to captains in the army and navy of the State.

In the constitution of Georgia, where it is declared “that the
legislative, executive, and judiciary departments shall be separate and
distinct, so that neither exercise the powers properly belonging to the
other,” we find that the executive department is to be filled by
appointments of the legislature; and the executive prerogative of
pardon to be finally exercised by the same authority. Even justices of
the peace are to be appointed by the legislature. In citing these
cases, in which the legislative, executive, and judiciary departments
have not been kept totally separate and distinct, I wish not to be
regarded as an advocate for the particular organizations of the several
State governments. I am fully aware that among the many excellent
principles which they exemplify, they carry strong marks of the haste,
and still stronger of the inexperience, under which they were framed.
It is but too obvious that in some instances the fundamental principle
under consideration has been violated by too great a mixture, and even
an actual consolidation, of the different powers; and that in no
instance has a competent provision been made for maintaining in
practice the separation delineated on paper. What I have wished to
evince is, that the charge brought against the proposed Constitution,
of violating the sacred maxim of free government, is warranted neither
by the real meaning annexed to that maxim by its author, nor by the
sense in which it has hitherto been understood in America. This
interesting subject will be resumed in the ensuing paper.

PUBLIUS.




THE FEDERALIST.
No. XLVIII.

These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other

From the New York Packet. Friday, February 1, 1788.

MADISON


To the People of the State of New York:

It was shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and
judiciary departments should be wholly unconnected with each other. I
shall undertake, in the next place, to show that unless these
departments be so far connected and blended as to give to each a
constitutional control over the others, the degree of separation which
the maxim requires, as essential to a free government, can never in
practice be duly maintained. It is agreed on all sides, that the powers
properly belonging to one of the departments ought not to be directly
and completely administered by either of the other departments. It is
equally evident, that none of them ought to possess, directly or
indirectly, an overruling influence over the others, in the
administration of their respective powers. It will not be denied, that
power is of an encroaching nature, and that it ought to be effectually
restrained from passing the limits assigned to it.

After discriminating, therefore, in theory, the several classes of
power, as they may in their nature be legislative, executive, or
judiciary, the next and most difficult task is to provide some
practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will
it be sufficient to mark, with precision, the boundaries of these
departments, in the constitution of the government, and to trust to
these parchment barriers against the encroaching spirit of power? This
is the security which appears to have been principally relied on by the
compilers of most of the American constitutions. But experience assures
us, that the efficacy of the provision has been greatly overrated; and
that some more adequate defense is indispensably necessary for the more
feeble, against the more powerful, members of the government. The
legislative department is everywhere extending the sphere of its
activity, and drawing all power into its impetuous vortex. The founders
of our republics have so much merit for the wisdom which they have
displayed, that no task can be less pleasing than that of pointing out
the errors into which they have fallen. A respect for truth, however,
obliges us to remark, that they seem never for a moment to have turned
their eyes from the danger to liberty from the overgrown and
all-grasping prerogative of an hereditary magistrate, supported and
fortified by an hereditary branch of the legislative authority. They
seem never to have recollected the danger from legislative usurpations,
which, by assembling all power in the same hands, must lead to the same
tyranny as is threatened by executive usurpations. In a government
where numerous and extensive prerogatives are placed in the hands of an
hereditary monarch, the executive department is very justly regarded as
the source of danger, and watched with all the jealousy which a zeal
for liberty ought to inspire. In a democracy, where a multitude of
people exercise in person the legislative functions, and are
continually exposed, by their incapacity for regular deliberation and
concerted measures, to the ambitious intrigues of their executive
magistrates, tyranny may well be apprehended, on some favorable
emergency, to start up in the same quarter. But in a representative
republic, where the executive magistracy is carefully limited; both in
the extent and the duration of its power; and where the legislative
power is exercised by an assembly, which is inspired, by a supposed
influence over the people, with an intrepid confidence in its own
strength; which is sufficiently numerous to feel all the passions which
actuate a multitude, yet not so numerous as to be incapable of pursuing
the objects of its passions, by means which reason prescribes; it is
against the enterprising ambition of this department that the people
ought to indulge all their jealousy and exhaust all their precautions.
The legislative department derives a superiority in our governments
from other circumstances. Its constitutional powers being at once more
extensive, and less susceptible of precise limits, it can, with the
greater facility, mask, under complicated and indirect measures, the
encroachments which it makes on the co-ordinate departments. It is not
unfrequently a question of real nicety in legislative bodies, whether
the operation of a particular measure will, or will not, extend beyond
the legislative sphere. On the other side, the executive power being
restrained within a narrower compass, and being more simple in its
nature, and the judiciary being described by landmarks still less
uncertain, projects of usurpation by either of these departments would
immediately betray and defeat themselves. Nor is this all: as the
legislative department alone has access to the pockets of the people,
and has in some constitutions full discretion, and in all a prevailing
influence, over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former. I have appealed
to our own experience for the truth of what I advance on this subject.
Were it necessary to verify this experience by particular proofs, they
might be multiplied without end. I might find a witness in every
citizen who has shared in, or been attentive to, the course of public
administrations. I might collect vouchers in abundance from the records
and archives of every State in the Union. But as a more concise, and at
the same time equally satisfactory, evidence, I will refer to the
example of two States, attested by two unexceptionable authorities. The
first example is that of Virginia, a State which, as we have seen, has
expressly declared in its constitution, that the three great
departments ought not to be intermixed. The authority in support of it
is Mr. Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of it. In
order to convey fully the ideas with which his experience had impressed
him on this subject, it will be necessary to quote a passage of some
length from his very interesting “Notes on the State of Virginia,” p.
195. “All the powers of government, legislative, executive, and
judiciary, result to the legislative body. The concentrating these in
the same hands, is precisely the definition of despotic government. It
will be no alleviation, that these powers will be exercised by a
plurality of hands, and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those
who doubt it, turn their eyes on the republic of Venice. As little will
it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM
was not the government we fought for; but one which should not only be
founded on free principles, but in which the powers of government
should be so divided and balanced among several bodies of magistracy,
as that no one could transcend their legal limits, without being
effectually checked and restrained by the others.

For this reason, that convention which passed the ordinance of
government, laid its foundation on this basis, that the legislative,
executive, and judiciary departments should be separate and distinct,
so that no person should exercise the powers of more than one of them
at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL
POWERS. The judiciary and the executive members were left dependent on
the legislative for their subsistence in office, and some of them for
their continuance in it. If, therefore, the legislature assumes
executive and judiciary powers, no opposition is likely to be made;
nor, if made, can be effectual; because in that case they may put their
proceedings into the form of acts of Assembly, which will render them
obligatory on the other branches. They have accordingly, IN MANY
instances, DECIDED RIGHTS which should have been left to JUDICIARY
CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME
OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. “The other State
which I shall take for an example is Pennsylvania; and the other
authority, the Council of Censors, which assembled in the years 1783
and 1784. A part of the duty of this body, as marked out by the
constitution, was “to inquire whether the constitution had been
preserved inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as guardians
of the people, or assumed to themselves, or exercised, other or greater
powers than they are entitled to by the constitution. “ In the
execution of this trust, the council were necessarily led to a
comparison of both the legislative and executive proceedings, with the
constitutional powers of these departments; and from the facts
enumerated, and to the truth of most of which both sides in the council
subscribed, it appears that the constitution had been flagrantly
violated by the legislature in a variety of important instances. A
great number of laws had been passed, violating, without any apparent
necessity, the rule requiring that all bills of a public nature shall
be previously printed for the consideration of the people; although
this is one of the precautions chiefly relied on by the constitution
against improper acts of legislature. The constitutional trial by jury
had been violated, and powers assumed which had not been delegated by
the constitution.

Executive powers had been usurped. The salaries of the judges, which
the constitution expressly requires to be fixed, had been occasionally
varied; and cases belonging to the judiciary department frequently
drawn within legislative cognizance and determination. Those who wish
to see the several particulars falling under each of these heads, may
consult the journals of the council, which are in print. Some of them,
it will be found, may be imputable to peculiar circumstances connected
with the war; but the greater part of them may be considered as the
spontaneous shoots of an ill-constituted government. It appears, also,
that the executive department had not been innocent of frequent
breaches of the constitution. There are three observations, however,
which ought to be made on this head: FIRST, a great proportion of the
instances were either immediately produced by the necessities of the
war, or recommended by Congress or the commander-in-chief; SECONDLY, in
most of the other instances, they conformed either to the declared or
the known sentiments of the legislative department; THIRDLY, the
executive department of Pennsylvania is distinguished from that of the
other States by the number of members composing it. In this respect, it
has as much affinity to a legislative assembly as to an executive
council. And being at once exempt from the restraint of an individual
responsibility for the acts of the body, and deriving confidence from
mutual example and joint influence, unauthorized measures would, of
course, be more freely hazarded, than where the executive department is
administered by a single hand, or by a few hands.

The conclusion which I am warranted in drawing from these observations
is, that a mere demarcation on parchment of the constitutional limits
of the several departments, is not a sufficient guard against those
encroachments which lead to a tyrannical concentration of all the
powers of government in the same hands.

PUBLIUS.




THE FEDERALIST.
No. XLIX.

Method of Guarding Against the Encroachments of Any One Department of
Government by Appealing to the People Through a Convention

From the New York Packet. Tuesday, February 5, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

The author of the “Notes on the State of Virginia,” quoted in the last
paper, has subjoined to that valuable work the draught of a
constitution, which had been prepared in order to be laid before a
convention, expected to be called in 1783, by the legislature, for the
establishment of a constitution for that commonwealth. The plan, like
every thing from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it
equally displays a fervent attachment to republican government and an
enlightened view of the dangerous propensities against which it ought
to be guarded.

One of the precautions which he proposes, and on which he appears
ultimately to rely as a palladium to the weaker departments of power
against the invasions of the stronger, is perhaps altogether his own,
and as it immediately relates to the subject of our present inquiry,
ought not to be overlooked. His proposition is, “that whenever any two
of the three branches of government shall concur in opinion, each by
the voices of two thirds of their whole number, that a convention is
necessary for altering the constitution, or CORRECTING BREACHES OF IT,
a convention shall be called for the purpose. “As the people are the
only legitimate fountain of power, and it is from them that the
constitutional charter, under which the several branches of government
hold their power, is derived, it seems strictly consonant to the
republican theory, to recur to the same original authority, not only
whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments
may commit encroachments on the chartered authorities of the others.
The several departments being perfectly co-ordinate by the terms of
their common commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers; and how are the encroachments of the stronger to be
prevented, or the wrongs of the weaker to be redressed, without an
appeal to the people themselves, who, as the grantors of the
commissions, can alone declare its true meaning, and enforce its
observance? There is certainly great force in this reasoning, and it
must be allowed to prove that a constitutional road to the decision of
the people ought to be marked out and kept open, for certain great and
extraordinary occasions. But there appear to be insuperable objections
against the proposed recurrence to the people, as a provision in all
cases for keeping the several departments of power within their
constitutional limits. In the first place, the provision does not reach
the case of a combination of two of the departments against the third.
If the legislative authority, which possesses so many means of
operating on the motives of the other departments, should be able to
gain to its interest either of the others, or even one third of its
members, the remaining department could derive no advantage from its
remedial provision. I do not dwell, however, on this objection, because
it may be thought to be rather against the modification of the
principle, than against the principle itself. In the next place, it may
be considered as an objection inherent in the principle, that as every
appeal to the people would carry an implication of some defect in the
government, frequent appeals would, in a great measure, deprive the
government of that veneration which time bestows on every thing, and
without which perhaps the wisest and freest governments would not
possess the requisite stability. If it be true that all governments
rest on opinion, it is no less true that the strength of opinion in
each individual, and its practical influence on his conduct, depend
much on the number which he supposes to have entertained the same
opinion. The reason of man, like man himself, is timid and cautious
when left alone, and acquires firmness and confidence in proportion to
the number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a
double effect. In a nation of philosophers, this consideration ought to
be disregarded. A reverence for the laws would be sufficiently
inculcated by the voice of an enlightened reason. But a nation of
philosophers is as little to be expected as the philosophical race of
kings wished for by Plato. And in every other nation, the most rational
government will not find it a superfluous advantage to have the
prejudices of the community on its side. The danger of disturbing the
public tranquillity by interesting too strongly the public passions, is
a still more serious objection against a frequent reference of
constitutional questions to the decision of the whole society.
Notwithstanding the success which has attended the revisions of our
established forms of government, and which does so much honor to the
virtue and intelligence of the people of America, it must be confessed
that the experiments are of too ticklish a nature to be unnecessarily
multiplied. We are to recollect that all the existing constitutions
were formed in the midst of a danger which repressed the passions most
unfriendly to order and concord; of an enthusiastic confidence of the
people in their patriotic leaders, which stifled the ordinary diversity
of opinions on great national questions; of a universal ardor for new
and opposite forms, produced by a universal resentment and indignation
against the ancient government; and whilst no spirit of party connected
with the changes to be made, or the abuses to be reformed, could mingle
its leaven in the operation. The future situations in which we must
expect to be usually placed, do not present any equivalent security
against the danger which is apprehended. But the greatest objection of
all is, that the decisions which would probably result from such
appeals would not answer the purpose of maintaining the constitutional
equilibrium of the government. We have seen that the tendency of
republican governments is to an aggrandizement of the legislative at
the expense of the other departments. The appeals to the people,
therefore, would usually be made by the executive and judiciary
departments. But whether made by one side or the other, would each side
enjoy equal advantages on the trial? Let us view their different
situations. The members of the executive and judiciary departments are
few in number, and can be personally known to a small part only of the
people. The latter, by the mode of their appointment, as well as by the
nature and permanency of it, are too far removed from the people to
share much in their prepossessions. The former are generally the
objects of jealousy, and their administration is always liable to be
discolored and rendered unpopular. The members of the legislative
department, on the other hand, are numberous. They are distributed and
dwell among the people at large. Their connections of blood, of
friendship, and of acquaintance embrace a great proportion of the most
influential part of the society. The nature of their public trust
implies a personal influence among the people, and that they are more
immediately the confidential guardians of the rights and liberties of
the people. With these advantages, it can hardly be supposed that the
adverse party would have an equal chance for a favorable issue. But the
legislative party would not only be able to plead their cause most
successfully with the people. They would probably be constituted
themselves the judges.

The same influence which had gained them an election into the
legislature, would gain them a seat in the convention. If this should
not be the case with all, it would probably be the case with many, and
pretty certainly with those leading characters, on whom every thing
depends in such bodies. The convention, in short, would be composed
chiefly of men who had been, who actually were, or who expected to be,
members of the department whose conduct was arraigned. They would
consequently be parties to the very question to be decided by them. It
might, however, sometimes happen, that appeals would be made under
circumstances less adverse to the executive and judiciary departments.
The usurpations of the legislature might be so flagrant and so sudden,
as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be
in the hands of a peculiar favorite of the people. In such a posture of
things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected to
turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with
persons of distinguished character and extensive influence in the
community. It would be pronounced by the very men who had been agents
in, or opponents of, the measures to which the decision would relate.
The PASSIONS, therefore, not the REASON, of the public would sit in
judgment. But it is the reason, alone, of the public, that ought to
control and regulate the government. The passions ought to be
controlled and regulated by the government.

We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several departments
within their legal rights. It appears in this, that occasional appeals
to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in
the plan above quoted might be adequate, I do not examine. Some of them
are unquestionably founded on sound political principles, and all of
them are framed with singular ingenuity and precision.

PUBLIUS.




THE FEDERALIST.
No. L.

Periodical Appeals to the People Considered

From the New York Packet. Tuesday, February 5, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

It may be contended, perhaps, that instead of OCCASIONAL appeals to the
people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to,
that in the examination of these expedients, I confine myself to their
aptitude for ENFORCING the Constitution, by keeping the several
departments of power within their due bounds, without particularly
considering them as provisions for ALTERING the Constitution itself. In
the first view, appeals to the people at fixed periods appear to be
nearly as ineligible as appeals on particular occasions as they emerge.

If the periods be separated by short intervals, the measures to be
reviewed and rectified will have been of recent date, and will be
connected with all the circumstances which tend to vitiate and pervert
the result of occasional revisions. If the periods be distant from each
other, the same remark will be applicable to all recent measures; and
in proportion as the remoteness of the others may favor a dispassionate
review of them, this advantage is inseparable from inconveniences which
seem to counterbalance it. In the first place, a distant prospect of
public censure would be a very feeble restraint on power from those
excesses to which it might be urged by the force of present motives. Is
it to be imagined that a legislative assembly, consisting of a hundred
or two hundred members, eagerly bent on some favorite object, and
breaking through the restraints of the Constitution in pursuit of it,
would be arrested in their career, by considerations drawn from a
censorial revision of their conduct at the future distance of ten,
fifteen, or twenty years? In the next place, the abuses would often
have completed their mischievous effects before the remedial provision
would be applied. And in the last place, where this might not be the
case, they would be of long standing, would have taken deep root, and
would not easily be extirpated. The scheme of revising the
constitution, in order to correct recent breaches of it, as well as for
other purposes, has been actually tried in one of the States. One of
the objects of the Council of Censors which met in Pennsylvania in 1783
and 1784, was, as we have seen, to inquire, “whether the constitution
had been violated, and whether the legislative and executive
departments had encroached upon each other. “ This important and novel
experiment in politics merits, in several points of view, very
particular attention. In some of them it may, perhaps, as a single
experiment, made under circumstances somewhat peculiar, be thought to
be not absolutely conclusive. But as applied to the case under
consideration, it involves some facts, which I venture to remark, as a
complete and satisfactory illustration of the reasoning which I have
employed. First. It appears, from the names of the gentlemen who
composed the council, that some, at least, of its most active members
had also been active and leading characters in the parties which
pre-existed in the State.

Secondly. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.

Thirdly. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had this
not been the case, the face of their proceedings exhibits a proof
equally satisfactory. In all questions, however unimportant in
themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a
variety of distinct questions, they inevitably fall into different
opinions on some of them. When they are governed by a common passion,
their opinions, if they are so to be called, will be the same.

Fourthly. It is at least problematical, whether the decisions of this
body do not, in several instances, misconstrue the limits prescribed
for the legislative and executive departments, instead of reducing and
limiting them within their constitutional places.

Fifthly. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed, have
had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest. This censorial body, therefore,
proves at the same time, by its researches, the existence of the
disease, and by its example, the inefficacy of the remedy. This
conclusion cannot be invalidated by alleging that the State in which
the experiment was made was at that crisis, and had been for a long
time before, violently heated and distracted by the rage of party. Is
it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State,
at the same or any other given period, will be exempt from them? Such
an event ought to be neither presumed nor desired; because an
extinction of parties necessarily implies either a universal alarm for
the public safety, or an absolute extinction of liberty. Were the
precaution taken of excluding from the assemblies elected by the
people, to revise the preceding administration of the government, all
persons who should have been concerned with the government within the
given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities,
would in other respects be little better qualified. Although they might
not have been personally concerned in the administration, and therefore
not immediately agents in the measures to be examined, they would
probably have been involved in the parties connected with these
measures, and have been elected under their auspices.

PUBLIUS.




THE FEDERALIST.
No. LI.

The Structure of the Government Must Furnish the Proper Checks and
Balances Between the Different Departments

From the New York Packet. Friday, February 8, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

To what expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several
departments, as laid down in the Constitution? The only answer that can
be given is, that as all these exterior provisions are found to be
inadequate, the defect must be supplied, by so contriving the interior
structure of the government as that its several constituent parts may,
by their mutual relations, be the means of keeping each other in their
proper places. Without presuming to undertake a full development of
this important idea, I will hazard a few general observations, which
may perhaps place it in a clearer light, and enable us to form a more
correct judgment of the principles and structure of the government
planned by the convention. In order to lay a due foundation for that
separate and distinct exercise of the different powers of government,
which to a certain extent is admitted on all hands to be essential to
the preservation of liberty, it is evident that each department should
have a will of its own; and consequently should be so constituted that
the members of each should have as little agency as possible in the
appointment of the members of the others. Were this principle
rigorously adhered to, it would require that all the appointments for
the supreme executive, legislative, and judiciary magistracies should
be drawn from the same fountain of authority, the people, through
channels having no communication whatever with one another. Perhaps
such a plan of constructing the several departments would be less
difficult in practice than it may in contemplation appear. Some
difficulties, however, and some additional expense would attend the
execution of it. Some deviations, therefore, from the principle must be
admitted. In the constitution of the judiciary department in
particular, it might be inexpedient to insist rigorously on the
principle: first, because peculiar qualifications being essential in
the members, the primary consideration ought to be to select that mode
of choice which best secures these qualifications; secondly, because
the permanent tenure by which the appointments are held in that
department, must soon destroy all sense of dependence on the authority
conferring them. It is equally evident, that the members of each
department should be as little dependent as possible on those of the
others, for the emoluments annexed to their offices. Were the executive
magistrate, or the judges, not independent of the legislature in this
particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The provision
for defense must in this, as in all other cases, be made commensurate
to the danger of attack. Ambition must be made to counteract ambition.
The interest of the man must be connected with the constitutional
rights of the place. It may be a reflection on human nature, that such
devices should be necessary to control the abuses of government. But
what is government itself, but the greatest of all reflections on human
nature? If men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which is to be
administered by men over men, the great difficulty lies in this: you
must first enable the government to control the governed; and in the
next place oblige it to control itself. A dependence on the people is,
no doubt, the primary control on the government; but experience has
taught mankind the necessity of auxiliary precautions. This policy of
supplying, by opposite and rival interests, the defect of better
motives, might be traced through the whole system of human affairs,
private as well as public. We see it particularly displayed in all the
subordinate distributions of power, where the constant aim is to divide
and arrange the several offices in such a manner as that each may be a
check on the other that the private interest of every individual may be
a sentinel over the public rights. These inventions of prudence cannot
be less requisite in the distribution of the supreme powers of the
State. But it is not possible to give to each department an equal power
of self-defense. In republican government, the legislative authority
necessarily predominates. The remedy for this inconveniency is to
divide the legislature into different branches; and to render them, by
different modes of election and different principles of action, as
little connected with each other as the nature of their common
functions and their common dependence on the society will admit. It may
even be necessary to guard against dangerous encroachments by still
further precautions. As the weight of the legislative authority
requires that it should be thus divided, the weakness of the executive
may require, on the other hand, that it should be fortified. An
absolute negative on the legislature appears, at first view, to be the
natural defense with which the executive magistrate should be armed.
But perhaps it would be neither altogether safe nor alone sufficient.
On ordinary occasions it might not be exerted with the requisite
firmness, and on extraordinary occasions it might be perfidiously
abused. May not this defect of an absolute negative be supplied by some
qualified connection between this weaker department and the weaker
branch of the stronger department, by which the latter may be led to
support the constitutional rights of the former, without being too much
detached from the rights of its own department? If the principles on
which these observations are founded be just, as I persuade myself they
are, and they be applied as a criterion to the several State
constitutions, and to the federal Constitution it will be found that if
the latter does not perfectly correspond with them, the former are
infinitely less able to bear such a test. There are, moreover, two
considerations particularly applicable to the federal system of
America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people is
submitted to the administration of a single government; and the
usurpations are guarded against by a division of the government into
distinct and separate departments. In the compound republic of America,
the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each subdivided
among distinct and separate departments. Hence a double security arises
to the rights of the people. The different governments will control
each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of
the society against the injustice of the other part. Different
interests necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights of the minority
will be insecure. There are but two methods of providing against this
evil: the one by creating a will in the community independent of the
majority that is, of the society itself; the other, by comprehending in
the society so many separate descriptions of citizens as will render an
unjust combination of a majority of the whole very improbable, if not
impracticable. The first method prevails in all governments possessing
an hereditary or self-appointed authority. This, at best, is but a
precarious security; because a power independent of the society may as
well espouse the unjust views of the major, as the rightful interests
of the minor party, and may possibly be turned against both parties.
The second method will be exemplified in the federal republic of the
United States. Whilst all authority in it will be derived from and
dependent on the society, the society itself will be broken into so
many parts, interests, and classes of citizens, that the rights of
individuals, or of the minority, will be in little danger from
interested combinations of the majority. In a free government the
security for civil rights must be the same as that for religious
rights. It consists in the one case in the multiplicity of interests,
and in the other in the multiplicity of sects. The degree of security
in both cases will depend on the number of interests and sects; and
this may be presumed to depend on the extent of country and number of
people comprehended under the same government. This view of the subject
must particularly recommend a proper federal system to all the sincere
and considerate friends of republican government, since it shows that
in exact proportion as the territory of the Union may be formed into
more circumscribed Confederacies, or States oppressive combinations of
a majority will be facilitated: the best security, under the republican
forms, for the rights of every class of citizens, will be diminished:
and consequently the stability and independence of some member of the
government, the only other security, must be proportionately increased.
Justice is the end of government. It is the end of civil society. It
ever has been and ever will be pursued until it be obtained, or until
liberty be lost in the pursuit. In a society under the forms of which
the stronger faction can readily unite and oppress the weaker, anarchy
may as truly be said to reign as in a state of nature, where the weaker
individual is not secured against the violence of the stronger; and as,
in the latter state, even the stronger individuals are prompted, by the
uncertainty of their condition, to submit to a government which may
protect the weak as well as themselves; so, in the former state, will
the more powerful factions or parties be gradually induced, by a like
motive, to wish for a government which will protect all parties, the
weaker as well as the more powerful. It can be little doubted that if
the State of Rhode Island was separated from the Confederacy and left
to itself, the insecurity of rights under the popular form of
government within such narrow limits would be displayed by such
reiterated oppressions of factious majorities that some power
altogether independent of the people would soon be called for by the
voice of the very factions whose misrule had proved the necessity of
it. In the extended republic of the United States, and among the great
variety of interests, parties, and sects which it embraces, a coalition
of a majority of the whole society could seldom take place on any other
principles than those of justice and the general good; whilst there
being thus less danger to a minor from the will of a major party, there
must be less pretext, also, to provide for the security of the former,
by introducing into the government a will not dependent on the latter,
or, in other words, a will independent of the society itself. It is no
less certain than it is important, notwithstanding the contrary
opinions which have been entertained, that the larger the society,
provided it lie within a practical sphere, the more duly capable it
will be of self-government. And happily for the REPUBLICAN CAUSE, the
practicable sphere may be carried to a very great extent, by a
judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.




THE FEDERALIST.
No. LII.

The House of Representatives

From the New York Packet. Friday, February 8, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

From the more general inquiries pursued in the four last papers, I pass
on to a more particular examination of the several parts of the
government. I shall begin with the House of Representatives. The first
view to be taken of this part of the government relates to the
qualifications of the electors and the elected. Those of the former are
to be the same with those of the electors of the most numerous branch
of the State legislatures.

The definition of the right of suffrage is very justly regarded as a
fundamental article of republican government. It was incumbent on the
convention, therefore, to define and establish this right in the
Constitution. To have left it open for the occasional regulation of the
Congress, would have been improper for the reason just mentioned. To
have submitted it to the legislative discretion of the States, would
have been improper for the same reason; and for the additional reason
that it would have rendered too dependent on the State governments that
branch of the federal government which ought to be dependent on the
people alone. To have reduced the different qualifications in the
different States to one uniform rule, would probably have been as
dissatisfactory to some of the States as it would have been difficult
to the convention. The provision made by the convention appears,
therefore, to be the best that lay within their option.

It must be satisfactory to every State, because it is conformable to
the standard already established, or which may be established, by the
State itself. It will be safe to the United States, because, being
fixed by the State constitutions, it is not alterable by the State
governments, and it cannot be feared that the people of the States will
alter this part of their constitutions in such a manner as to abridge
the rights secured to them by the federal Constitution. The
qualifications of the elected, being less carefully and properly
defined by the State constitutions, and being at the same time more
susceptible of uniformity, have been very properly considered and
regulated by the convention. A representative of the United States must
be of the age of twenty-five years; must have been seven years a
citizen of the United States; must, at the time of his election, be an
inhabitant of the State he is to represent; and, during the time of his
service, must be in no office under the United States. Under these
reasonable limitations, the door of this part of the federal government
is open to merit of every description, whether native or adoptive,
whether young or old, and without regard to poverty or wealth, or to
any particular profession of religious faith. The term for which the
representatives are to be elected falls under a second view which may
be taken of this branch. In order to decide on the propriety of this
article, two questions must be considered: first, whether biennial
elections will, in this case, be safe; secondly, whether they be
necessary or useful. First. As it is essential to liberty that the
government in general should have a common interest with the people, so
it is particularly essential that the branch of it under consideration
should have an immediate dependence on, and an intimate sympathy with,
the people. Frequent elections are unquestionably the only policy by
which this dependence and sympathy can be effectually secured. But what
particular degree of frequency may be absolutely necessary for the
purpose, does not appear to be susceptible of any precise calculation,
and must depend on a variety of circumstances with which it may be
connected. Let us consult experience, the guide that ought always to be
followed whenever it can be found. The scheme of representation, as a
substitute for a meeting of the citizens in person, being at most but
very imperfectly known to ancient polity, it is in more modern times
only that we are to expect instructive examples. And even here, in
order to avoid a research too vague and diffusive, it will be proper to
confine ourselves to the few examples which are best known, and which
bear the greatest analogy to our particular case. The first to which
this character ought to be applied, is the House of Commons in Great
Britain. The history of this branch of the English Constitution,
anterior to the date of Magna Charta, is too obscure to yield
instruction. The very existence of it has been made a question among
political antiquaries. The earliest records of subsequent date prove
that parliaments were to SIT only every year; not that they were to be
ELECTED every year. And even these annual sessions were left so much at
the discretion of the monarch, that, under various pretexts, very long
and dangerous intermissions were often contrived by royal ambition. To
remedy this grievance, it was provided by a statute in the reign of
Charles II. , that the intermissions should not be protracted beyond a
period of three years. On the accession of William III., when a
revolution took place in the government, the subject was still more
seriously resumed, and it was declared to be among the fundamental
rights of the people that parliaments ought to be held FREQUENTLY. By
another statute, which passed a few years later in the same reign, the
term “frequently,” which had alluded to the triennial period settled in
the time of Charles II., is reduced to a precise meaning, it being
expressly enacted that a new parliament shall be called within three
years after the termination of the former. The last change, from three
to seven years, is well known to have been introduced pretty early in
the present century, under on alarm for the Hanoverian succession. From
these facts it appears that the greatest frequency of elections which
has been deemed necessary in that kingdom, for binding the
representatives to their constituents, does not exceed a triennial
return of them. And if we may argue from the degree of liberty retained
even under septennial elections, and all the other vicious ingredients
in the parliamentary constitution, we cannot doubt that a reduction of
the period from seven to three years, with the other necessary reforms,
would so far extend the influence of the people over their
representatives as to satisfy us that biennial elections, under the
federal system, cannot possibly be dangerous to the requisite
dependence of the House of Representatives on their constituents.
Elections in Ireland, till of late, were regulated entirely by the
discretion of the crown, and were seldom repeated, except on the
accession of a new prince, or some other contingent event. The
parliament which commenced with George II. was continued throughout his
whole reign, a period of about thirty-five years. The only dependence
of the representatives on the people consisted in the right of the
latter to supply occasional vacancies by the election of new members,
and in the chance of some event which might produce a general new
election.

The ability also of the Irish parliament to maintain the rights of
their constituents, so far as the disposition might exist, was
extremely shackled by the control of the crown over the subjects of
their deliberation. Of late these shackles, if I mistake not, have been
broken; and octennial parliaments have besides been established. What
effect may be produced by this partial reform, must be left to further
experience. The example of Ireland, from this view of it, can throw but
little light on the subject. As far as we can draw any conclusion from
it, it must be that if the people of that country have been able under
all these disadvantages to retain any liberty whatever, the advantage
of biennial elections would secure to them every degree of liberty,
which might depend on a due connection between their representatives
and themselves. Let us bring our inquiries nearer home. The example of
these States, when British colonies, claims particular attention, at
the same time that it is so well known as to require little to be said
on it. The principle of representation, in one branch of the
legislature at least, was established in all of them. But the periods
of election were different. They varied from one to seven years. Have
we any reason to infer, from the spirit and conduct of the
representatives of the people, prior to the Revolution, that biennial
elections would have been dangerous to the public liberties? The spirit
which everywhere displayed itself at the commencement of the struggle,
and which vanquished the obstacles to independence, is the best of
proofs that a sufficient portion of liberty had been everywhere enjoyed
to inspire both a sense of its worth and a zeal for its proper
enlargement This remark holds good, as well with regard to the then
colonies whose elections were least frequent, as to those whose
elections were most frequent Virginia was the colony which stood first
in resisting the parliamentary usurpations of Great Britain; it was the
first also in espousing, by public act, the resolution of independence.

In Virginia, nevertheless, if I have not been misinformed, elections
under the former government were septennial. This particular example is
brought into view, not as a proof of any peculiar merit, for the
priority in those instances was probably accidental; and still less of
any advantage in SEPTENNIAL elections, for when compared with a greater
frequency they are inadmissible; but merely as a proof, and I conceive
it to be a very substantial proof, that the liberties of the people can
be in no danger from BIENNIAL elections. The conclusion resulting from
these examples will be not a little strengthened by recollecting three
circumstances. The first is, that the federal legislature will possess
a part only of that supreme legislative authority which is vested
completely in the British Parliament; and which, with a few exceptions,
was exercised by the colonial assemblies and the Irish legislature. It
is a received and well-founded maxim, that where no other circumstances
affect the case, the greater the power is, the shorter ought to be its
duration; and, conversely, the smaller the power, the more safely may
its duration be protracted. In the second place, it has, on another
occasion, been shown that the federal legislature will not only be
restrained by its dependence on its people, as other legislative bodies
are, but that it will be, moreover, watched and controlled by the
several collateral legislatures, which other legislative bodies are
not. And in the third place, no comparison can be made between the
means that will be possessed by the more permanent branches of the
federal government for seducing, if they should be disposed to seduce,
the House of Representatives from their duty to the people, and the
means of influence over the popular branch possessed by the other
branches of the government above cited. With less power, therefore, to
abuse, the federal representatives can be less tempted on one side, and
will be doubly watched on the other.

PUBLIUS.




THE FEDERALIST.
No. LIII.

The Same Subject Continued (The House of Representatives)

From the New York Packet. Tuesday, February 12, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

I shall here, perhaps, be reminded of a current observation, “that
where annual elections end, tyranny begins. “ If it be true, as has
often been remarked, that sayings which become proverbial are generally
founded in reason, it is not less true, that when once established,
they are often applied to cases to which the reason of them does not
extend. I need not look for a proof beyond the case before us. What is
the reason on which this proverbial observation is founded? No man will
subject himself to the ridicule of pretending that any natural
connection subsists between the sun or the seasons, and the period
within which human virtue can bear the temptations of power. Happily
for mankind, liberty is not, in this respect, confined to any single
point of time; but lies within extremes, which afford sufficient
latitude for all the variations which may be required by the various
situations and circumstances of civil society. The election of
magistrates might be, if it were found expedient, as in some instances
it actually has been, daily, weekly, or monthly, as well as annual; and
if circumstances may require a deviation from the rule on one side, why
not also on the other side? Turning our attention to the periods
established among ourselves, for the election of the most numerous
branches of the State legislatures, we find them by no means coinciding
any more in this instance, than in the elections of other civil
magistrates. In Connecticut and Rhode Island, the periods are
half-yearly. In the other States, South Carolina excepted, they are
annual. In South Carolina they are biennial as is proposed in the
federal government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to show,
that Connecticut or Rhode Island is better governed, or enjoys a
greater share of rational liberty, than South Carolina; or that either
the one or the other of these States is distinguished in these
respects, and by these causes, from the States whose elections are
different from both. In searching for the grounds of this doctrine, I
can discover but one, and that is wholly inapplicable to our case. The
important distinction so well understood in America, between a
Constitution established by the people and unalterable by the
government, and a law established by the government and alterable by
the government, seems to have been little understood and less observed
in any other country. Wherever the supreme power of legislation has
resided, has been supposed to reside also a full power to change the
form of the government. Even in Great Britain, where the principles of
political and civil liberty have been most discussed, and where we hear
most of the rights of the Constitution, it is maintained that the
authority of the Parliament is transcendent and uncontrollable, as well
with regard to the Constitution, as the ordinary objects of legislative
provision. They have accordingly, in several instances, actually
changed, by legislative acts, some of the most fundamental articles of
the government. They have in particular, on several occasions, changed
the period of election; and, on the last occasion, not only introduced
septennial in place of triennial elections, but by the same act,
continued themselves in place four years beyond the term for which they
were elected by the people. An attention to these dangerous practices
has produced a very natural alarm in the votaries of free government,
of which frequency of elections is the corner-stone; and has led them
to seek for some security to liberty, against the danger to which it is
exposed. Where no Constitution, paramount to the government, either
existed or could be obtained, no constitutional security, similar to
that established in the United States, was to be attempted. Some other
security, therefore, was to be sought for; and what better security
would the case admit, than that of selecting and appealing to some
simple and familiar portion of time, as a standard for measuring the
danger of innovations, for fixing the national sentiment, and for
uniting the patriotic exertions? The most simple and familiar portion
of time, applicable to the subject was that of a year; and hence the
doctrine has been inculcated by a laudable zeal, to erect some barrier
against the gradual innovations of an unlimited government, that the
advance towards tyranny was to be calculated by the distance of
departure from the fixed point of annual elections. But what necessity
can there be of applying this expedient to a government limited, as the
federal government will be, by the authority of a paramount
Constitution? Or who will pretend that the liberties of the people of
America will not be more secure under biennial elections, unalterably
fixed by such a Constitution, than those of any other nation would be,
where elections were annual, or even more frequent, but subject to
alterations by the ordinary power of the government? The second
question stated is, whether biennial elections be necessary or useful.
The propriety of answering this question in the affirmative will appear
from several very obvious considerations. No man can be a competent
legislator who does not add to an upright intention and a sound
judgment a certain degree of knowledge of the subjects on which he is
to legislate. A part of this knowledge may be acquired by means of
information which lie within the compass of men in private as well as
public stations. Another part can only be attained, or at least
thoroughly attained, by actual experience in the station which requires
the use of it. The period of service, ought, therefore, in all such
cases, to bear some proportion to the extent of practical knowledge
requisite to the due performance of the service. The period of
legislative service established in most of the States for the more
numerous branch is, as we have seen, one year. The question then may be
put into this simple form: does the period of two years bear no greater
proportion to the knowledge requisite for federal legislation than one
year does to the knowledge requisite for State legislation? The very
statement of the question, in this form, suggests the answer that ought
to be given to it. In a single State, the requisite knowledge relates
to the existing laws which are uniform throughout the State, and with
which all the citizens are more or less conversant; and to the general
affairs of the State, which lie within a small compass, are not very
diversified, and occupy much of the attention and conversation of every
class of people. The great theatre of the United States presents a very
different scene. The laws are so far from being uniform, that they vary
in every State; whilst the public affairs of the Union are spread
throughout a very extensive region, and are extremely diversified by t
e local affairs connected with them, and can with difficulty be
correctly learnt in any other place than in the central councils to
which a knowledge of them will be brought by the representatives of
every part of the empire. Yet some knowledge of the affairs, and even
of the laws, of all the States, ought to be possessed by the members
from each of the States. How can foreign trade be properly regulated by
uniform laws, without some acquaintance with the commerce, the ports,
the usages, and the regulatious of the different States? How can the
trade between the different States be duly regulated, without some
knowledge of their relative situations in these and other respects? How
can taxes be judiciously imposed and effectually collected, if they be
not accommodated to the different laws and local circumstances relating
to these objects in the different States? How can uniform regulations
for the militia be duly provided, without a similar knowledge of many
internal circumstances by which the States are distinguished from each
other? These are the principal objects of federal legislation, and
suggest most forcibly the extensive information which the
representatives ought to acquire. The other interior objects will
require a proportional degree of information with regard to them. It is
true that all these difficulties will, by degrees, be very much
diminished. The most laborious task will be the proper inauguration of
the government and the primeval formation of a federal code.
Improvements on the first draughts will every year become both easier
and fewer. Past transactions of the government will be a ready and
accurate source of information to new members. The affairs of the Union
will become more and more objects of curiosity and conversation among
the citizens at large. And the increased intercourse among those of
different States will contribute not a little to diffuse a mutual
knowledge of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these abatements,
the business of federal legislation must continue so far to exceed,
both in novelty and difficulty, the legislative business of a single
State, as to justify the longer period of service assigned to those who
are to transact it. A branch of knowledge which belongs to the
acquirements of a federal representative, and which has not been
mentioned is that of foreign affairs. In regulating our own commerce he
ought to be not only acquainted with the treaties between the United
States and other nations, but also with the commercial policy and laws
of other nations. He ought not to be altogether ignorant of the law of
nations; for that, as far as it is a proper object of municipal
legislation, is submitted to the federal government.

And although the House of Representatives is not immediately to
participate in foreign negotiations and arrangements, yet from the
necessary connection between the several branches of public affairs,
those particular branches will frequently deserve attention in the
ordinary course of legislation, and will sometimes demand particular
legislative sanction and co-operation. Some portion of this knowledge
may, no doubt, be acquired in a man’s closet; but some of it also can
only be derived from the public sources of information; and all of it
will be acquired to best effect by a practical attention to the subject
during the period of actual service in the legislature.

There are other considerations, of less importance, perhaps, but which
are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements
rendered necessary by that circumstance, might be much more serious
objections with fit men to this service, if limited to a single year,
than if extended to two years. No argument can be drawn on this
subject, from the case of the delegates to the existing Congress. They
are elected annually, it is true; but their re-election is considered
by the legislative assemblies almost as a matter of course. The
election of the representatives by the people would not be governed by
the same principle. A few of the members, as happens in all such
assemblies, will possess superior talents; will, by frequent
reelections, become members of long standing; will be thoroughly
masters of the public business, and perhaps not unwilling to avail
themselves of those advantages. The greater the proportion of new
members, and the less the information of the bulk of the members the
more apt will they be to fall into the snares that may be laid for
them. This remark is no less applicable to the relation which will
subsist between the House of Representatives and the Senate. It is an
inconvenience mingled with the advantages of our frequent elections
even in single States, where they are large, and hold but one
legislative session in a year, that spurious elections cannot be
investigated and annulled in time for the decision to have its due
effect. If a return can be obtained, no matter by what unlawful means,
the irregular member, who takes his seat of course, is sure of holding
it a sufficient time to answer his purposes. Hence, a very pernicious
encouragement is given to the use of unlawful means, for obtaining
irregular returns. Were elections for the federal legislature to be
annual, this practice might become a very serious abuse, particularly
in the more distant States. Each house is, as it necessarily must be,
the judge of the elections, qualifications, and returns of its members;
and whatever improvements may be suggested by experience, for
simplifying and accelerating the process in disputed cases, so great a
portion of a year would unavoidably elapse, before an illegitimate
member could be dispossessed of his seat, that the prospect of such an
event would be little check to unfair and illicit means of obtaining a
seat. All these considerations taken together warrant us in affirming,
that biennial elections will be as useful to the affairs of the public
as we have seen that they will be safe to the liberty of the people.

PUBLIUS.




THE FEDERALIST.
No. LIV.

The Apportionment of Members Among the States

From the New York Packet. Tuesday, February 12, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

The next view which I shall take of the House of Representatives
relates to the appointment of its members to the several States which
is to be determined by the same rule with that of direct taxes. It is
not contended that the number of people in each State ought not to be
the standard for regulating the proportion of those who are to
represent the people of each State. The establishment of the same rule
for the appointment of taxes, will probably be as little contested;
though the rule itself in this case, is by no means founded on the same
principle. In the former case, the rule is understood to refer to the
personal rights of the people, with which it has a natural and
universal connection.

In the latter, it has reference to the proportion of wealth, of which
it is in no case a precise measure, and in ordinary cases a very unfit
one. But notwithstanding the imperfection of the rule as applied to the
relative wealth and contributions of the States, it is evidently the
least objectionable among the practicable rules, and had too recently
obtained the general sanction of America, not to have found a ready
preference with the convention. All this is admitted, it will perhaps
be said; but does it follow, from an admission of numbers for the
measure of representation, or of slaves combined with free citizens as
a ratio of taxation, that slaves ought to be included in the numerical
rule of representation? Slaves are considered as property, not as
persons. They ought therefore to be comprehended in estimates of
taxation which are founded on property, and to be excluded from
representation which is regulated by a census of persons. This is the
objection, as I understand it, stated in its full force. I shall be
equally candid in stating the reasoning which may be offered on the
opposite side. “We subscribe to the doctrine,” might one of our
Southern brethren observe, “that representation relates more
immediately to persons, and taxation more immediately to property, and
we join in the application of this distinction to the case of our
slaves. But we must deny the fact, that slaves are considered merely as
property, and in no respect whatever as persons. The true state of the
case is, that they partake of both these qualities: being considered by
our laws, in some respects, as persons, and in other respects as
property. In being compelled to labor, not for himself, but for a
master; in being vendible by one master to another master; and in being
subject at all times to be restrained in his liberty and chastised in
his body, by the capricious will of another, the slave may appear to be
degraded from the human rank, and classed with those irrational animals
which fall under the legal denomination of property. In being
protected, on the other hand, in his life and in his limbs, against the
violence of all others, even the master of his labor and his liberty;
and in being punishable himself for all violence committed against
others, the slave is no less evidently regarded by the law as a member
of the society, not as a part of the irrational creation; as a moral
person, not as a mere article of property. The federal Constitution,
therefore, decides with great propriety on the case of our slaves, when
it views them in the mixed character of persons and of property. This
is in fact their true character. It is the character bestowed on them
by the laws under which they live; and it will not be denied, that
these are the proper criterion; because it is only under the pretext
that the laws have transformed the negroes into subjects of property,
that a place is disputed them in the computation of numbers; and it is
admitted, that if the laws were to restore the rights which have been
taken away, the negroes could no longer be refused an equal share of
representation with the other inhabitants. “This question may be placed
in another light. It is agreed on all sides, that numbers are the best
scale of wealth and taxation, as they are the only proper scale of
representation. Would the convention have been impartial or consistent,
if they had rejected the slaves from the list of inhabitants, when the
shares of representation were to be calculated, and inserted them on
the lists when the tariff of contributions was to be adjusted? Could it
be reasonably expected, that the Southern States would concur in a
system, which considered their slaves in some degree as men, when
burdens were to be imposed, but refused to consider them in the same
light, when advantages were to be conferred? Might not some surprise
also be expressed, that those who reproach the Southern States with the
barbarous policy of considering as property a part of their human
brethren, should themselves contend, that the government to which all
the States are to be parties, ought to consider this unfortunate race
more completely in the unnatural light of property, than the very laws
of which they complain? “It may be replied, perhaps, that slaves are
not included in the estimate of representatives in any of the States
possessing them. They neither vote themselves nor increase the votes of
their masters. Upon what principle, then, ought they to be taken into
the federal estimate of representation? In rejecting them altogether,
the Constitution would, in this respect, have followed the very laws
which have been appealed to as the proper guide. “This objection is
repelled by a single observation. It is a fundamental principle of the
proposed Constitution, that as the aggregate number of representatives
allotted to the several States is to be determined by a federal rule,
founded on the aggregate number of inhabitants, so the right of
choosing this allotted number in each State is to be exercised by such
part of the inhabitants as the State itself may designate. The
qualifications on which the right of suffrage depend are not, perhaps,
the same in any two States. In some of the States the difference is
very material. In every State, a certain proportion of inhabitants are
deprived of this right by the constitution of the State, who will be
included in the census by which the federal Constitution apportions the
representatives.

In this point of view the Southern States might retort the complaint,
by insisting that the principle laid down by the convention required
that no regard should be had to the policy of particular States towards
their own inhabitants; and consequently, that the slaves, as
inhabitants, should have been admitted into the census according to
their full number, in like manner with other inhabitants, who, by the
policy of other States, are not admitted to all the rights of citizens.
A rigorous adherence, however, to this principle, is waived by those
who would be gainers by it. All that they ask is that equal moderation
be shown on the other side. Let the case of the slaves be considered,
as it is in truth, a peculiar one. Let the compromising expedient of
the Constitution be mutually adopted, which regards them as
inhabitants, but as debased by servitude below the equal level of free
inhabitants, which regards the SLAVE as divested of two fifths of the
MAN. “After all, may not another ground be taken on which this article
of the Constitution will admit of a still more ready defense? We have
hitherto proceeded on the idea that representation related to persons
only, and not at all to property. But is it a just idea?

Government is instituted no less for protection of the property, than
of the persons, of individuals. The one as well as the other,
therefore, may be considered as represented by those who are charged
with the government. Upon this principle it is, that in several of the
States, and particularly in the State of New York, one branch of the
government is intended more especially to be the guardian of property,
and is accordingly elected by that part of the society which is most
interested in this object of government. In the federal Constitution,
this policy does not prevail. The rights of property are committed into
the same hands with the personal rights. Some attention ought,
therefore, to be paid to property in the choice of those hands. “For
another reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the comparative
wealth of the States. States have not, like individuals, an influence
over each other, arising from superior advantages of fortune. If the
law allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his
fortunate situation very frequently guide the votes of others to the
objects of his choice; and through this imperceptible channel the
rights of property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable that
the richest State in the Confederacy will ever influence the choice of
a single representative in any other State. Nor will the
representatives of the larger and richer States possess any other
advantage in the federal legislature, over the representatives of other
States, than what may result from their superior number alone. As far,
therefore, as their superior wealth and weight may justly entitle them
to any advantage, it ought to be secured to them by a superior share of
representation. The new Constitution is, in this respect, materially
different from the existing Confederation, as well as from that of the
United Netherlands, and other similar confederacies. In each of the
latter, the efficacy of the federal resolutions depends on the
subsequent and voluntary resolutions of the states composing the union.
Hence the states, though possessing an equal vote in the public
councils, have an unequal influence, corresponding with the unequal
importance of these subsequent and voluntary resolutions. Under the
proposed Constitution, the federal acts will take effect without the
necessary intervention of the individual States. They will depend
merely on the majority of votes in the federal legislature, and
consequently each vote, whether proceeding from a larger or smaller
State, or a State more or less wealthy or powerful, will have an equal
weight and efficacy: in the same manner as the votes individually given
in a State legislature, by the representatives of unequal counties or
other districts, have each a precise equality of value and effect; or
if there be any difference in the case, it proceeds from the difference
in the personal character of the individual representative, rather than
from any regard to the extent of the district from which he comes.
“Such is the reasoning which an advocate for the Southern interests
might employ on this subject; and although it may appear to be a little
strained in some points, yet, on the whole, I must confess that it
fully reconciles me to the scale of representation which the convention
have established. In one respect, the establishment of a common measure
for representation and taxation will have a very salutary effect. As
the accuracy of the census to be obtained by the Congress will
necessarily depend, in a considerable degree on the disposition, if not
on the co-operation, of the States, it is of great importance that the
States should feel as little bias as possible, to swell or to reduce
the amount of their numbers. Were their share of representation alone
to be governed by this rule, they would have an interest in
exaggerating their inhabitants. Were the rule to decide their share of
taxation alone, a contrary temptation would prevail. By extending the
rule to both objects, the States will have opposite interests, which
will control and balance each other, and produce the requisite
impartiality.

PUBLIUS.




THE FEDERALIST.
No. LV.

The Total Number of the House of Representatives

From the New York Packet. Friday, February 15, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

The number of which the House of Representatives is to consist, forms
another and a very interesting point of view, under which this branch
of the federal legislature may be contemplated.

Scarce any article, indeed, in the whole Constitution seems to be
rendered more worthy of attention, by the weight of character and the
apparent force of argument with which it has been assailed.

The charges exhibited against it are, first, that so small a number of
representatives will be an unsafe depositary of the public interests;
secondly, that they will not possess a proper knowledge of the local
circumstances of their numerous constituents; thirdly, that they will
be taken from that class of citizens which will sympathize least with
the feelings of the mass of the people, and be most likely to aim at a
permanent elevation of the few on the depression of the many; fourthly,
that defective as the number will be in the first instance, it will be
more and more disproportionate, by the increase of the people, and the
obstacles which will prevent a correspondent increase of the
representatives. In general it may be remarked on this subject, that no
political problem is less susceptible of a precise solution than that
which relates to the number most convenient for a representative
legislature; nor is there any point on which the policy of the several
States is more at variance, whether we compare their legislative
assemblies directly with each other, or consider the proportions which
they respectively bear to the number of their constituents. Passing
over the difference between the smallest and largest States, as
Delaware, whose most numerous branch consists of twenty-one
representatives, and Massachusetts, where it amounts to between three
and four hundred, a very considerable difference is observable among
States nearly equal in population. The number of representatives in
Pennsylvania is not more than one fifth of that in the State last
mentioned. New York, whose population is to that of South Carolina as
six to five, has little more than one third of the number of
representatives. As great a disparity prevails between the States of
Georgia and Delaware or Rhode Island. In Pennsylvania, the
representatives do not bear a greater proportion to their constituents
than of one for every four or five thousand. In Rhode Island, they bear
a proportion of at least one for every thousand. And according to the
constitution of Georgia, the proportion may be carried to one to every
ten electors; and must unavoidably far exceed the proportion in any of
the other States. Another general remark to be made is, that the ratio
between the representatives and the people ought not to be the same
where the latter are very numerous as where they are very few. Were the
representatives in Virginia to be regulated by the standard in Rhode
Island, they would, at this time, amount to between four and five
hundred; and twenty or thirty years hence, to a thousand. On the other
hand, the ratio of Pennsylvania, if applied to the State of Delaware,
would reduce the representative assembly of the latter to seven or
eight members. Nothing can be more fallacious than to found our
political calculations on arithmetical principles. Sixty or seventy men
may be more properly trusted with a given degree of power than six or
seven. But it does not follow that six or seven hundred would be
proportionably a better depositary. And if we carry on the supposition
to six or seven thousand, the whole reasoning ought to be reversed. The
truth is, that in all cases a certain number at least seems to be
necessary to secure the benefits of free consultation and discussion,
and to guard against too easy a combination for improper purposes; as,
on the other hand, the number ought at most to be kept within a certain
limit, in order to avoid the confusion and intemperance of a multitude.
In all very numerous assemblies, of whatever character composed,
passion never fails to wrest the sceptre from reason.

Had every Athenian citizen been a Socrates, every Athenian assembly
would still have been a mob.

It is necessary also to recollect here the observations which were
applied to the case of biennial elections. For the same reason that the
limited powers of the Congress, and the control of the State
legislatures, justify less frequent elections than the public safely
might otherwise require, the members of the Congress need be less
numerous than if they possessed the whole power of legislation, and
were under no other than the ordinary restraints of other legislative
bodies. With these general ideas in our mind, let us weigh the
objections which have been stated against the number of members
proposed for the House of Representatives. It is said, in the first
place, that so small a number cannot be safely trusted with so much
power. The number of which this branch of the legislature is to
consist, at the outset of the government, will be sixtyfive. Within
three years a census is to be taken, when the number may be augmented
to one for every thirty thousand inhabitants; and within every
successive period of ten years the census is to be renewed, and
augmentations may continue to be made under the above limitation. It
will not be thought an extravagant conjecture that the first census
will, at the rate of one for every thirty thousand, raise the number of
representatives to at least one hundred. Estimating the negroes in the
proportion of three fifths, it can scarcely be doubted that the
population of the United States will by that time, if it does not
already, amount to three millions. At the expiration of twenty-five
years, according to the computed rate of increase, the number of
representatives will amount to two hundred, and of fifty years, to four
hundred. This is a number which, I presume, will put an end to all
fears arising from the smallness of the body. I take for granted here
what I shall, in answering the fourth objection, hereafter show, that
the number of representatives will be augmented from time to time in
the manner provided by the Constitution. On a contrary supposition, I
should admit the objection to have very great weight indeed. The true
question to be decided then is, whether the smallness of the number, as
a temporary regulation, be dangerous to the public liberty? Whether
sixty-five members for a few years, and a hundred or two hundred for a
few more, be a safe depositary for a limited and well-guarded power of
legislating for the United States? I must own that I could not give a
negative answer to this question, without first obliterating every
impression which I have received with regard to the present genius of
the people of America, the spirit which actuates the State
legislatures, and the principles which are incorporated with the
political character of every class of citizens I am unable to conceive
that the people of America, in their present temper, or under any
circumstances which can speedily happen, will choose, and every second
year repeat the choice of, sixty-five or a hundred men who would be
disposed to form and pursue a scheme of tyranny or treachery. I am
unable to conceive that the State legislatures, which must feel so many
motives to watch, and which possess so many means of counteracting, the
federal legislature, would fail either to detect or to defeat a
conspiracy of the latter against the liberties of their common
constituents. I am equally unable to conceive that there are at this
time, or can be in any short time, in the United States, any sixty-five
or a hundred men capable of recommending themselves to the choice of
the people at large, who would either desire or dare, within the short
space of two years, to betray the solemn trust committed to them. What
change of circumstances, time, and a fuller population of our country
may produce, requires a prophetic spirit to declare, which makes no
part of my pretensions. But judging from the circumstances now before
us, and from the probable state of them within a moderate period of
time, I must pronounce that the liberties of America cannot be unsafe
in the number of hands proposed by the federal Constitution. From what
quarter can the danger proceed? Are we afraid of foreign gold? If
foreign gold could so easily corrupt our federal rulers and enable them
to ensnare and betray their constituents, how has it happened that we
are at this time a free and independent nation? The Congress which
conducted us through the Revolution was a less numerous body than their
successors will be; they were not chosen by, nor responsible to, their
fellowcitizens at large; though appointed from year to year, and
recallable at pleasure, they were generally continued for three years,
and prior to the ratification of the federal articles, for a still
longer term.

They held their consultations always under the veil of secrecy; they
had the sole transaction of our affairs with foreign nations; through
the whole course of the war they had the fate of their country more in
their hands than it is to be hoped will ever be the case with our
future representatives; and from the greatness of the prize at stake,
and the eagerness of the party which lost it, it may well be supposed
that the use of other means than force would not have been scrupled.
Yet we know by happy experience that the public trust was not betrayed;
nor has the purity of our public councils in this particular ever
suffered, even from the whispers of calumny. Is the danger apprehended
from the other branches of the federal government?

But where are the means to be found by the President, or the Senate, or
both? Their emoluments of office, it is to be presumed, will not, and
without a previous corruption of the House of Representatives cannot,
more than suffice for very different purposes; their private fortunes,
as they must allbe American citizens, cannot possibly be sources of
danger. The only means, then, which they can possess, will be in the
dispensation of appointments. Is it here that suspicion rests her
charge? Sometimes we are told that this fund of corruption is to be
exhausted by the President in subduing the virtue of the Senate. Now,
the fidelity of the other House is to be the victim. The improbability
of such a mercenary and perfidious combination of the several members
of government, standing on as different foundations as republican
principles will well admit, and at the same time accountable to the
society over which they are placed, ought alone to quiet this
apprehension. But, fortunately, the Constitution has provided a still
further safeguard. The members of the Congress are rendered ineligible
to any civil offices that may be created, or of which the emoluments
may be increased, during the term of their election.

No offices therefore can be dealt out to the existing members but such
as may become vacant by ordinary casualties: and to suppose that these
would be sufficient to purchase the guardians of the people, selected
by the people themselves, is to renounce every rule by which events
ought to be calculated, and to substitute an indiscriminate and
unbounded jealousy, with which all reasoning must be vain. The sincere
friends of liberty, who give themselves up to the extravagancies of
this passion, are not aware of the injury they do their own cause. As
there is a degree of depravity in mankind which requires a certain
degree of circumspection and distrust, so there are other qualities in
human nature which justify a certain portion of esteem and confidence.
Republican government presupposes the existence of these qualities in a
higher degree than any other form. Were the pictures which have been
drawn by the political jealousy of some among us faithful likenesses of
the human character, the inference would be, that there is not
sufficient virtue among men for self-government; and that nothing less
than the chains of despotism can restrain them from destroying and
devouring one another.

PUBLIUS.




THE FEDERALIST.
No. LVI.

The Same Subject Continued (The Total Number of the House of
Representatives)

From the New York Packet. Tuesday, February 19, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

The second charge against the House of Representatives is, that it will
be too small to possess a due knowledge of the interests of its
constituents. As this objection evidently proceeds from a comparison of
the proposed number of representatives with the great extent of the
United States, the number of their inhabitants, and the diversity of
their interests, without taking into view at the same time the
circumstances which will distinguish the Congress from other
legislative bodies, the best answer that can be given to it will be a
brief explanation of these peculiarities. It is a sound and important
principle that the representative ought to be acquainted with the
interests and circumstances of his constituents. But this principle can
extend no further than to those circumstances and interests to which
the authority and care of the representative relate. An ignorance of a
variety of minute and particular objects, which do not lie within the
compass of legislation, is consistent with every attribute necessary to
a due performance of the legislative trust. In determining the extent
of information required in the exercise of a particular authority,
recourse then must be had to the objects within the purview of that
authority. What are to be the objects of federal legislation? Those
which are of most importance, and which seem most to require local
knowledge, are commerce, taxation, and the militia. A proper regulation
of commerce requires much information, as has been elsewhere remarked;
but as far as this information relates to the laws and local situation
of each individual State, a very few representatives would be very
sufficient vehicles of it to the federal councils. Taxation will
consist, in a great measure, of duties which will be involved in the
regulation of commerce. So far the preceding remark is applicable to
this object. As far as it may consist of internal collections, a more
diffusive knowledge of the circumstances of the State may be necessary.
But will not this also be possessed in sufficient degree by a very few
intelligent men, diffusively elected within the State? Divide the
largest State into ten or twelve districts, and it will be found that
there will be no peculiar local interests in either, which will not be
within the knowledge of the representative of the district. Besides
this source of information, the laws of the State, framed by
representatives from every part of it, will be almost of themselves a
sufficient guide. In every State there have been made, and must
continue to be made, regulations on this subject which will, in many
cases, leave little more to be done by the federal legislature, than to
review the different laws, and reduce them in one general act. A
skillful individual in his closet with all the local codes before him,
might compile a law on some subjects of taxation for the whole union,
without any aid from oral information, and it may be expected that
whenever internal taxes may be necessary, and particularly in cases
requiring uniformity throughout the States, the more simple objects
will be preferred. To be fully sensible of the facility which will be
given to this branch of federal legislation by the assistance of the
State codes, we need only suppose for a moment that this or any other
State were divided into a number of parts, each having and exercising
within itself a power of local legislation. Is it not evident that a
degree of local information and preparatory labor would be found in the
several volumes of their proceedings, which would very much shorten the
labors of the general legislature, and render a much smaller number of
members sufficient for it? The federal councils will derive great
advantage from another circumstance. The representatives of each State
will not only bring with them a considerable knowledge of its laws, and
a local knowledge of their respective districts, but will probably in
all cases have been members, and may even at the very time be members,
of the State legislature, where all the local information and interests
of the State are assembled, and from whence they may easily be conveyed
by a very few hands into the legislature of the United States. The
observations made on the subject of taxation apply with greater force
to the case of the militia. For however different the rules of
discipline may be in different States, they are the same throughout
each particular State; and depend on circumstances which can differ but
little in different parts of the same State. The attentive reader will
discern that the reasoning here used, to prove the sufficiency of a
moderate number of representatives, does not in any respect contradict
what was urged on another occasion with regard to the extensive
information which the representatives ought to possess, and the time
that might be necessary for acquiring it. This information, so far as
it may relate to local objects, is rendered necessary and difficult,
not by a difference of laws and local circumstances within a single
State, but of those among different States. Taking each State by
itself, its laws are the same, and its interests but little
diversified. A few men, therefore, will possess all the knowledge
requisite for a proper representation of them. Were the interests and
affairs of each individual State perfectly simple and uniform, a
knowledge of them in one part would involve a knowledge of them in
every other, and the whole State might be competently represented by a
single member taken from any part of it. On a comparison of the
different States together, we find a great dissimilarity in their laws,
and in many other circumstances connected with the objects of federal
legislation, with all of which the federal representatives ought to
have some acquaintance. Whilst a few representatives, therefore, from
each State, may bring with them a due knowledge of their own State,
every representative will have much information to acquire concerning
all the other States.

The changes of time, as was formerly remarked, on the comparative
situation of the different States, will have an assimilating effect.
The effect of time on the internal affairs of the States, taken singly,
will be just the contrary. At present some of the States are little
more than a society of husbandmen. Few of them have made much progress
in those branches of industry which give a variety and complexity to
the affairs of a nation. These, however, will in all of them be the
fruits of a more advanced population, and will require, on the part of
each State, a fuller representation. The foresight of the convention
has accordingly taken care that the progress of population may be
accompanied with a proper increase of the representative branch of the
government. The experience of Great Britain, which presents to mankind
so many political lessons, both of the monitory and exemplary kind, and
which has been frequently consulted in the course of these inquiries,
corroborates the result of the reflections which we have just made. The
number of inhabitants in the two kingdoms of England and Scotland
cannot be stated at less than eight millions. The representatives of
these eight millions in the House of Commons amount to five hundred and
fifty-eight.

Of this number, one ninth are elected by three hundred and sixty-four
persons, and one half, by five thousand seven hundred and twenty-three
persons.[1] It cannot be supposed that the half thus elected, and who
do not even reside among the people at large, can add any thing either
to the security of the people against the government, or to the
knowledge of their circumstances and interests in the legislative
councils. On the contrary, it is notorious, that they are more
frequently the representatives and instruments of the executive
magistrate, than the guardians and advocates of the popular rights.
They might therefore, with great propriety, be considered as something
more than a mere deduction from the real representatives of the nation.
We will, however, consider them in this light alone, and will not
extend the deduction to a considerable number of others, who do not
reside among their constitutents, are very faintly connected with them,
and have very little particular knowledge of their affairs. With all
these concessions, two hundred and seventy-nine persons only will be
the depository of the safety, interest, and happiness of eight millions
that is to say, there will be one representative only to maintain the
rights and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED
AND SEVENTY constitutents, in an assembly exposed to the whole force of
executive influence, and extending its authority to every object of
legislation within a nation whose affairs are in the highest degree
diversified and complicated. Yet it is very certain, not only that a
valuable portion of freedom has been preserved under all these
circumstances, but that the defects in the British code are chargeable,
in a very small proportion, on the ignorance of the legislature
concerning the circumstances of the people. Allowing to this case the
weight which is due to it, and comparing it with that of the House of
Representatives as above explained it seems to give the fullest
assurance, that a representative for every THIRTY THOUSAND INHABITANTS
will render the latter both a safe and competent guardian of the
interests which will be confided to it.

PUBLIUS.

 [1] Burgh’s _Political Disquisitions_.




THE FEDERALIST.
No. LVII.

The Alleged Tendency of the New Plan to Elevate the Few at the Expense
of the Many Considered in Connection with Representation

From the New York Packet. Tuesday, February 19, 1788.

HAMILTON OR MADISON


To the People of the State of New York:

The third charge against the House of Representatives is, that it will
be taken from that class of citizens which will have least sympathy
with the mass of the people, and be most likely to aim at an ambitious
sacrifice of the many to the aggrandizement of the few. Of all the
objections which have been framed against the federal Constitution,
this is perhaps the most extraordinary.

Whilst the objection itself is levelled against a pretended oligarchy,
the principle of it strikes at the very root of republican government.
The aim of every political constitution is, or ought to be, first to
obtain for rulers men who possess most wisdom to discern, and most
virtue to pursue, the common good of the society; and in the next
place, to take the most effectual precautions for keeping them virtuous
whilst they continue to hold their public trust. The elective mode of
obtaining rulers is the characteristic policy of republican government.
The means relied on in this form of government for preventing their
degeneracy are numerous and various. The most effectual one, is such a
limitation of the term of appointments as will maintain a proper
responsibility to the people. Let me now ask what circumstance there is
in the constitution of the House of Representatives that violates the
principles of republican government, or favors the elevation of the few
on the ruins of the many? Let me ask whether every circumstance is not,
on the contrary, strictly conformable to these principles, and
scrupulously impartial to the rights and pretensions of every class and
description of citizens? Who are to be the electors of the federal
representatives? Not the rich, more than the poor; not the learned,
more than the ignorant; not the haughty heirs of distinguished names,
more than the humble sons of obscurity and unpropitious fortune. The
electors are to be the great body of the people of the United States.
They are to be the same who exercise the right in every State of
electing the corresponding branch of the legislature of the State. Who
are to be the objects of popular choice? Every citizen whose merit may
recommend him to the esteem and confidence of his country. No
qualification of wealth, of birth, of religious faith, or of civil
profession is permitted to fetter the judgement or disappoint the
inclination of the people. If we consider the situation of the men on
whom the free suffrages of their fellow-citizens may confer the
representative trust, we shall find it involving every security which
can be devised or desired for their fidelity to their constituents. In
the first place, as they will have been distinguished by the preference
of their fellow-citizens, we are to presume that in general they will
be somewhat distinguished also by those qualities which entitle them to
it, and which promise a sincere and scrupulous regard to the nature of
their engagements. In the second place, they will enter into the public
service under circumstances which cannot fail to produce a temporary
affection at least to their constituents. There is in every breast a
sensibility to marks of honor, of favor, of esteem, and of confidence,
which, apart from all considerations of interest, is some pledge for
grateful and benevolent returns.

Ingratitude is a common topic of declamation against human nature; and
it must be confessed that instances of it are but too frequent and
flagrant, both in public and in private life. But the universal and
extreme indignation which it inspires is itself a proof of the energy
and prevalence of the contrary sentiment.

In the third place, those ties which bind the representative to his
constituents are strengthened by motives of a more selfish nature. His
pride and vanity attach him to a form of government which favors his
pretensions and gives him a share in its honors and distinctions.
Whatever hopes or projects might be entertained by a few aspiring
characters, it must generally happen that a great proportion of the men
deriving their advancement from their influence with the people, would
have more to hope from a preservation of the favor, than from
innovations in the government subversive of the authority of the
people. All these securities, however, would be found very insufficient
without the restraint of frequent elections. Hence, in the fourth
place, the House of Representatives is so constituted as to support in
the members an habitual recollection of their dependence on the people.
Before the sentiments impressed on their minds by the mode of their
elevation can be effaced by the exercise of power, they will be
compelled to anticipate the moment when their power is to cease, when
their exercise of it is to be reviewed, and when they must descend to
the level from which they were raised; there forever to remain unless a
faithful discharge of their trust shall have established their title to
a renewal of it. I will add, as a fifth circumstance in the situation
of the House of Representatives, restraining them from oppressive
measures, that they can make no law which will not have its full
operation on themselves and their friends, as well as on the great mass
of the society. This has always been deemed one of the strongest bonds
by which human policy can connect the rulers and the people together.
It creates between them that communion of interests and sympathy of
sentiments, of which few governments have furnished examples; but
without which every government degenerates into tyranny. If it be
asked, what is to restrain the House of Representatives from making
legal discriminations in favor of themselves and a particular class of
the society? I answer: the genius of the whole system; the nature of
just and constitutional laws; and above all, the vigilant and manly
spirit which actuates the people of America, a spirit which nourishes
freedom, and in return is nourished by it. If this spirit shall ever be
so far debased as to tolerate a law not obligatory on the legislature,
as well as on the people, the people will be prepared to tolerate any
thing but liberty. Such will be the relation between the House of
Representatives and their constituents. Duty, gratitude, interest,
ambition itself, are the chords by which they will be bound to fidelity
and sympathy with the great mass of the people.

It is possible that these may all be insufficient to control the
caprice and wickedness of man. But are they not all that government
will admit, and that human prudence can devise? Are they not the
genuine and the characteristic means by which republican government
provides for the liberty and happiness of the people? Are they not the
identical means on which every State government in the Union relies for
the attainment of these important ends? What then are we to understand
by the objection which this paper has combated? What are we to say to
the men who profess the most flaming zeal for republican government,
yet boldly impeach the fundamental principle of it; who pretend to be
champions for the right and the capacity of the people to choose their
own rulers, yet maintain that they will prefer those only who will
immediately and infallibly betray the trust committed to them? Were the
objection to be read by one who had not seen the mode prescribed by the
Constitution for the choice of representatives, he could suppose
nothing less than that some unreasonable qualification of property was
annexed to the right of suffrage; or that the right of eligibility was
limited to persons of particular families or fortunes; or at least that
the mode prescribed by the State constitutions was in some respect or
other, very grossly departed from. We have seen how far such a
supposition would err, as to the two first points. Nor would it, in
fact, be less erroneous as to the last. The only difference
discoverable between the two cases is, that each representative of the
United States will be elected by five or six thousand citizens; whilst
in the individual States, the election of a representative is left to
about as many hundreds. Will it be pretended that this difference is
sufficient to justify an attachment to the State governments, and an
abhorrence to the federal government? If this be the point on which the
objection turns, it deserves to be examined. Is it supported by REASON?

This cannot be said, without maintaining that five or six thousand
citizens are less capable of choosing a fit representative, or more
liable to be corrupted by an unfit one, than five or six hundred.
Reason, on the contrary, assures us, that as in so great a number a fit
representative would be most likely to be found, so the choice would be
less likely to be diverted from him by the intrigues of the ambitious
or the ambitious or the bribes of the rich. Is the CONSEQUENCE from
this doctrine admissible? If we say that five or six hundred citizens
are as many as can jointly exercise their right of suffrage, must we
not deprive the people of the immediate choice of their public
servants, in every instance where the administration of the government
does not require as many of them as will amount to one for that number
of citizens? Is the doctrine warranted by FACTS? It was shown in the
last paper, that the real representation in the British House of
Commons very little exceeds the proportion of one for every thirty
thousand inhabitants. Besides a variety of powerful causes not existing
here, and which favor in that country the pretensions of rank and
wealth, no person is eligible as a representative of a county, unless
he possess real estate of the clear value of six hundred pounds
sterling per year; nor of a city or borough, unless he possess a like
estate of half that annual value. To this qualification on the part of
the county representatives is added another on the part of the county
electors, which restrains the right of suffrage to persons having a
freehold estate of the annual value of more than twenty pounds
sterling, according to the present rate of money. Notwithstanding these
unfavorable circumstances, and notwithstanding some very unequal laws
in the British code, it cannot be said that the representatives of the
nation have elevated the few on the ruins of the many. But we need not
resort to foreign experience on this subject. Our own is explicit and
decisive. The districts in New Hampshire in which the senators are
chosen immediately by the people, are nearly as large as will be
necessary for her representatives in the Congress. Those of
Massachusetts are larger than will be necessary for that purpose; and
those of New York still more so.

In the last State the members of Assembly for the cities and counties
of New York and Albany are elected by very nearly as many voters as
will be entitled to a representative in the Congress, calculating on
the number of sixty-five representatives only. It makes no difference
that in these senatorial districts and counties a number of
representatives are voted for by each elector at the same time. If the
same electors at the same time are capable of choosing four or five
representatives, they cannot be incapable of choosing one. Pennsylvania
is an additional example. Some of her counties, which elect her State
representatives, are almost as large as her districts will be by which
her federal representatives will be elected. The city of Philadelphia
is supposed to contain between fifty and sixty thousand souls. It will
therefore form nearly two districts for the choice of federal
representatives. It forms, however, but one county, in which every
elector votes for each of its representatives in the State legislature.
And what may appear to be still more directly to our purpose, the whole
city actually elects a SINGLE MEMBER for the executive council. This is
the case in all the other counties of the State. Are not these facts
the most satisfactory proofs of the fallacy which has been employed
against the branch of the federal government under consideration? Has
it appeared on trial that the senators of New Hampshire, Massachusetts,
and New York, or the executive council of Pennsylvania, or the members
of the Assembly in the two last States, have betrayed any peculiar
disposition to sacrifice the many to the few, or are in any respect
less worthy of their places than the representatives and magistrates
appointed in other States by very small divisions of the people? But
there are cases of a stronger complexion than any which I have yet
quoted.

One branch of the legislature of Connecticut is so constituted that
each member of it is elected by the whole State. So is the governor of
that State, of Massachusetts, and of this State, and the president of
New Hampshire. I leave every man to decide whether the result of any
one of these experiments can be said to countenance a suspicion, that a
diffusive mode of choosing representatives of the people tends to
elevate traitors and to undermine the public liberty.

PUBLIUS.




THE FEDERALIST.
No. LVIII.

Objection That The Number of Members Will Not Be Augmented as the
Progress of Population Demands Considered

MADISON


To the People of the State of New York:

The remaining charge against the House of Representatives, which I am
to examine, is grounded on a supposition that the number of members
will not be augmented from time to time, as the progress of population
may demand. It has been admitted, that this objection, if well
supported, would have great weight. The following observations will
show that, like most other objections against the Constitution, it can
only proceed from a partial view of the subject, or from a jealousy
which discolors and disfigures every object which is beheld. 1. Those
who urge the objection seem not to have recollected that the federal
Constitution will not suffer by a comparison with the State
constitutions, in the security provided for a gradual augmentation of
the number of representatives. The number which is to prevail in the
first instance is declared to be temporary. Its duration is limited to
the short term of three years. Within every successive term of ten
years a census of inhabitants is to be repeated. The unequivocal
objects of these regulations are, first, to readjust, from time to
time, the apportionment of representatives to the number of
inhabitants, under the single exception that each State shall have one
representative at least; secondly, to augment the number of
representatives at the same periods, under the sole limitation that the
whole number shall not exceed one for every thirty thousand
inhabitants. If we review the constitutions of the several States, we
shall find that some of them contain no determinate regulations on this
subject, that others correspond pretty much on this point with the
federal Constitution, and that the most effectual security in any of
them is resolvable into a mere directory provision. 2. As far as
experience has taken place on this subject, a gradual increase of
representatives under the State constitutions has at least kept pace
with that of the constituents, and it appears that the former have been
as ready to concur in such measures as the latter have been to call for
them. 3. There is a peculiarity in the federal Constitution which
insures a watchful attention in a majority both of the people and of
their representatives to a constitutional augmentation of the latter.
The peculiarity lies in this, that one branch of the legislature is a
representation of citizens, the other of the States: in the former,
consequently, the larger States will have most weight; in the latter,
the advantage will be in favor of the smaller States. From this
circumstance it may with certainty be inferred that the larger States
will be strenuous advocates for increasing the number and weight of
that part of the legislature in which their influence predominates. And
it so happens that four only of the largest will have a majority of the
whole votes in the House of Representatives. Should the representatives
or people, therefore, of the smaller States oppose at any time a
reasonable addition of members, a coalition of a very few States will
be sufficient to overrule the opposition; a coalition which,
notwithstanding the rivalship and local prejudices which might prevent
it on ordinary occasions, would not fail to take place, when not merely
prompted by common interest, but justified by equity and the principles
of the Constitution. It may be alleged, perhaps, that the Senate would
be prompted by like motives to an adverse coalition; and as their
concurrence would be indispensable, the just and constitutional views
of the other branch might be defeated. This is the difficulty which has
probably created the most serious apprehensions in the jealous friends
of a numerous representation. Fortunately it is among the difficulties
which, existing only in appearance, vanish on a close and accurate
inspection. The following reflections will, if I mistake not, be
admitted to be conclusive and satisfactory on this point.
Notwithstanding the equal authority which will subsist between the two
houses on all legislative subjects, except the originating of money
bills, it cannot be doubted that the House, composed of the greater
number of members, when supported by the more powerful States, and
speaking the known and determined sense of a majority of the people,
will have no small advantage in a question depending on the comparative
firmness of the two houses. This advantage must be increased by the
consciousness, felt by the same side of being supported in its demands
by right, by reason, and by the Constitution; and the consciousness, on
the opposite side, of contending against the force of all these solemn
considerations. It is farther to be considered, that in the gradation
between the smallest and largest States, there are several, which,
though most likely in general to arrange themselves among the former
are too little removed in extent and population from the latter, to
second an opposition to their just and legitimate pretensions. Hence it
is by no means certain that a majority of votes, even in the Senate,
would be unfriendly to proper augmentations in the number of
representatives. It will not be looking too far to add, that the
senators from all the new States may be gained over to the just views
of the House of Representatives, by an expedient too obvious to be
overlooked. As these States will, for a great length of time, advance
in population with peculiar rapidity, they will be interested in
frequent reapportionments of the representatives to the number of
inhabitants. The large States, therefore, who will prevail in the House
of Representatives, will have nothing to do but to make
reapportionments and augmentations mutually conditions of each other;
and the senators from all the most growing States will be bound to
contend for the latter, by the interest which their States will feel in
the former. These considerations seem to afford ample security on this
subject, and ought alone to satisfy all the doubts and fears which have
been indulged with regard to it. Admitting, however, that they should
all be insufficient to subdue the unjust policy of the smaller States,
or their predominant influence in the councils of the Senate, a
constitutional and infallible resource still remains with the larger
States, by which they will be able at all times to accomplish their
just purposes. The House of Representatives cannot only refuse, but
they alone can propose, the supplies requisite for the support of
government. They, in a word, hold the purse that powerful instrument by
which we behold, in the history of the British Constitution, an infant
and humble representation of the people gradually enlarging the sphere
of its activity and importance, and finally reducing, as far as it
seems to have wished, all the overgrown prerogatives of the other
branches of the government. This power over the purse may, in fact, be
regarded as the most complete and effectual weapon with which any
constitution can arm the immediate representatives of the people, for
obtaining a redress of every grievance, and for carrying into effect
every just and salutary measure. But will not the House of
Representatives be as much interested as the Senate in maintaining the
government in its proper functions, and will they not therefore be
unwilling to stake its existence or its reputation on the pliancy of
the Senate? Or, if such a trial of firmness between the two branches
were hazarded, would not the one be as likely first to yield as the
other? These questions will create no difficulty with those who reflect
that in all cases the smaller the number, and the more permanent and
conspicuous the station, of men in power, the stronger must be the
interest which they will individually feel in whatever concerns the
government. Those who represent the dignity of their country in the
eyes of other nations, will be particularly sensible to every prospect
of public danger, or of dishonorable stagnation in public affairs. To
those causes we are to ascribe the continual triumph of the British
House of Commons over the other branches of the government, whenever
the engine of a money bill has been employed. An absolute inflexibility
on the side of the latter, although it could not have failed to involve
every department of the state in the general confusion, has neither
been apprehended nor experienced. The utmost degree of firmness that
can be displayed by the federal Senate or President, will not be more
than equal to a resistance in which they will be supported by
constitutional and patriotic principles. In this review of the
Constitution of the House of Representatives, I have passed over the
circumstances of economy, which, in the present state of affairs, might
have had some effect in lessening the temporary number of
representatives, and a disregard of which would probably have been as
rich a theme of declamation against the Constitution as has been shown
by the smallness of the number proposed. I omit also any remarks on the
difficulty which might be found, under present circumstances, in
engaging in the federal service a large number of such characters as
the people will probably elect. One observation, however, I must be
permitted to add on this subject as claiming, in my judgment, a very
serious attention. It is, that in all legislative assemblies the
greater the number composing them may be, the fewer will be the men who
will in fact direct their proceedings. In the first place, the more
numerous an assembly may be, of whatever characters composed, the
greater is known to be the ascendency of passion over reason. In the
next place, the larger the number, the greater will be the proportion
of members of limited information and of weak capacities. Now, it is
precisely on characters of this description that the eloquence and
address of the few are known to act with all their force. In the
ancient republics, where the whole body of the people assembled in
person, a single orator, or an artful statesman, was generally seen to
rule with as complete a sway as if a sceptre had been placed in his
single hand. On the same principle, the more multitudinous a
representative assembly may be rendered, the more it will partake of
the infirmities incident to collective meetings of the people.

Ignorance will be the dupe of cunning, and passion the slave of
sophistry and declamation. The people can never err more than in
supposing that by multiplying their representatives beyond a certain
limit, they strengthen the barrier against the government of a few.
Experience will forever admonish them that, on the contrary, AFTER
SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL
INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they
will counteract their own views by every addition to their
representatives. The countenance of the government may become more
democratic, but the soul that animates it will be more oligarchic. The
machine will be enlarged, but the fewer, and often the more secret,
will be the springs by which its motions are directed. As connected
with the objection against the number of representatives, may properly
be here noticed, that which has been suggested against the number made
competent for legislative business. It has been said that more than a
majority ought to have been required for a quorum; and in particular
cases, if not in all, more than a majority of a quorum for a decision.
That some advantages might have resulted from such a precaution, cannot
be denied. It might have been an additional shield to some particular
interests, and another obstacle generally to hasty and partial
measures. But these considerations are outweighed by the inconveniences
in the opposite scale. In all cases where justice or the general good
might require new laws to be passed, or active measures to be pursued,
the fundamental principle of free government would be reversed. It
would be no longer the majority that would rule: the power would be
transferred to the minority. Were the defensive privilege limited to
particular cases, an interested minority might take advantage of it to
screen themselves from equitable sacrifices to the general weal, or, in
particular emergencies, to extort unreasonable indulgences. Lastly, it
would facilitate and foster the baneful practice of secessions; a
practice which has shown itself even in States where a majority only is
required; a practice subversive of all the principles of order and
regular government; a practice which leads more directly to public
convulsions, and the ruin of popular governments, than any other which
has yet been displayed among us.

PUBLIUS.




THE FEDERALIST.
No. LIX.

Concerning the Power of Congress to Regulate the Election of Members

From the New York Packet. Friday, February 22, 1788.

HAMILTON


To the People of the State of New York:

The natural order of the subject leads us to consider, in this place,
that provision of the Constitution which authorizes the national
legislature to regulate, in the last resort, the election of its own
members. It is in these words: “The TIMES, PLACES, and MANNER of
holding elections for senators and representatives shall be prescribed
in each State by the legislature thereof; but the Congress may, at any
time, by law, make or alter SUCH REGULATIONS, except as to the PLACES
of choosing senators.”[1] This provision has not only been declaimed
against by those who condemn the Constitution in the gross, but it has
been censured by those who have objected with less latitude and greater
moderation; and, in one instance it has been thought exceptionable by a
gentleman who has declared himself the advocate of every other part of
the system. I am greatly mistaken, notwithstanding, if there be any
article in the whole plan more completely defensible than this. Its
propriety rests upon the evidence of this plain proposition, that EVERY
GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN
PRESERVATION. Every just reasoner will, at first sight, approve an
adherence to this rule, in the work of the convention; and will
disapprove every deviation from it which may not appear to have been
dictated by the necessity of incorporating into the work some
particular ingredient, with which a rigid conformity to the rule was
incompatible. Even in this case, though he may acquiesce in the
necessity, yet he will not cease to regard and to regret a departure
from so fundamental a principle, as a portion of imperfection in the
system which may prove the seed of future weakness, and perhaps
anarchy. It will not be alleged, that an election law could have been
framed and inserted in the Constitution, which would have been always
applicable to every probable change in the situation of the country;
and it will therefore not be denied, that a discretionary power over
elections ought to exist somewhere. It will, I presume, be as readily
conceded, that there were only three ways in which this power could
have been reasonably modified and disposed: that it must either have
been lodged wholly in the national legislature, or wholly in the State
legislatures, or primarily in the latter and ultimately in the former.
The last mode has, with reason, been preferred by the convention. They
have submitted the regulation of elections for the federal government,
in the first instance, to the local administrations; which, in ordinary
cases, and when no improper views prevail, may be both more convenient
and more satisfactory; but they have reserved to the national authority
a right to interpose, whenever extraordinary circumstances might render
that interposition necessary to its safety. Nothing can be more
evident, than that an exclusive power of regulating elections for the
national government, in the hands of the State legislatures, would
leave the existence of the Union entirely at their mercy. They could at
any moment annihilate it, by neglecting to provide for the choice of
persons to administer its affairs. It is to little purpose to say, that
a neglect or omission of this kind would not be likely to take place.
The constitutional possibility of the thing, without an equivalent for
the risk, is an unanswerable objection. Nor has any satisfactory reason
been yet assigned for incurring that risk. The extravagant surmises of
a distempered jealousy can never be dignified with that character. If
we are in a humor to presume abuses of power, it is as fair to presume
them on the part of the State governments as on the part of the general
government. And as it is more consonant to the rules of a just theory,
to trust the Union with the care of its own existence, than to transfer
that care to any other hands, if abuses of power are to be hazarded on
the one side or on the other, it is more rational to hazard them where
the power would naturally be placed, than where it would unnaturally be
placed. Suppose an article had been introduced into the Constitution,
empowering the United States to regulate the elections for the
particular States, would any man have hesitated to condemn it, both as
an unwarrantable transposition of power, and as a premeditated engine
for the destruction of the State governments? The violation of
principle, in this case, would have required no comment; and, to an
unbiased observer, it will not be less apparent in the project of
subjecting the existence of the national government, in a similar
respect, to the pleasure of the State governments. An impartial view of
the matter cannot fail to result in a conviction, that each, as far as
possible, ought to depend on itself for its own preservation. As an
objection to this position, it may be remarked that the constitution of
the national Senate would involve, in its full extent, the danger which
it is suggested might flow from an exclusive power in the State
legislatures to regulate the federal elections. It may be alleged, that
by declining the appointment of Senators, they might at any time give a
fatal blow to the Union; and from this it may be inferred, that as its
existence would be thus rendered dependent upon them in so essential a
point, there can be no objection to intrusting them with it in the
particular case under consideration. The interest of each State, it may
be added, to maintain its representation in the national councils,
would be a complete security against an abuse of the trust. This
argument, though specious, will not, upon examination, be found solid.
It is certainly true that the State legislatures, by forbearing the
appointment of senators, may destroy the national government. But it
will not follow that, because they have a power to do this in one
instance, they ought to have it in every other. There are cases in
which the pernicious tendency of such a power may be far more decisive,
without any motive equally cogent with that which must have regulated
the conduct of the convention in respect to the formation of the
Senate, to recommend their admission into the system. So far as that
construction may expose the Union to the possibility of injury from the
State legislatures, it is an evil; but it is an evil which could not
have been avoided without excluding the States, in their political
capacities, wholly from a place in the organization of the national
government. If this had been done, it would doubtless have been
interpreted into an entire dereliction of the federal principle; and
would certainly have deprived the State governments of that absolute
safeguard which they will enjoy under this provision. But however wise
it may have been to have submitted in this instance to an
inconvenience, for the attainment of a necessary advantage or a greater
good, no inference can be drawn from thence to favor an accumulation of
the evil, where no necessity urges, nor any greater good invites. It
may be easily discerned also that the national government would run a
much greater risk from a power in the State legislatures over the
elections of its House of Representatives, than from their power of
appointing the members of its Senate. The senators are to be chosen for
the period of six years; there is to be a rotation, by which the seats
of a third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators; a
quorum of the body is to consist of sixteen members. The joint result
of these circumstances would be, that a temporary combination of a few
States to intermit the appointment of senators, could neither annul the
existence nor impair the activity of the body; and it is not from a
general and permanent combination of the States that we can have any
thing to fear. The first might proceed from sinister designs in the
leading members of a few of the State legislatures; the last would
suppose a fixed and rooted disaffection in the great body of the
people, which will either never exist at all, or will, in all
probability, proceed from an experience of the inaptitude of the
general government to the advancement of their happiness in which event
no good citizen could desire its continuance. But with regard to the
federal House of Representatives, there is intended to be a general
election of members once in two years. If the State legislatures were
to be invested with an exclusive power of regulating these elections,
every period of making them would be a delicate crisis in the national
situation, which might issue in a dissolution of the Union, if the
leaders of a few of the most important States should have entered into
a previous conspiracy to prevent an election. I shall not deny, that
there is a degree of weight in the observation, that the interests of
each State, to be represented in the federal councils, will be a
security against the abuse of a power over its elections in the hands
of the State legislatures. But the security will not be considered as
complete, by those who attend to the force of an obvious distinction
between the interest of the people in the public felicity, and the
interest of their local rulers in the power and consequence of their
offices. The people of America may be warmly attached to the government
of the Union, at times when the particular rulers of particular States,
stimulated by the natural rivalship of power, and by the hopes of
personal aggrandizement, and supported by a strong faction in each of
those States, may be in a very opposite temper. This diversity of
sentiment between a majority of the people, and the individuals who
have the greatest credit in their councils, is exemplified in some of
the States at the present moment, on the present question. The scheme
of separate confederacies, which will always multiply the chances of
ambition, will be a never failing bait to all such influential
characters in the State administrations as are capable of preferring
their own emolument and advancement to the public weal. With so
effectual a weapon in their hands as the exclusive power of regulating
elections for the national government, a combination of a few such men,
in a few of the most considerable States, where the temptation will
always be the strongest, might accomplish the destruction of the Union,
by seizing the opportunity of some casual dissatisfaction among the
people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm union of
this country, under an efficient government, will probably be an
increasing object of jealousy to more than one nation of Europe; and
that enterprises to subvert it will sometimes originate in the
intrigues of foreign powers, and will seldom fail to be patronized and
abetted by some of them. Its preservation, therefore ought in no case
that can be avoided, to be committed to the guardianship of any but
those whose situation will uniformly beget an immediate interest in the
faithful and vigilant performance of the trust.

PUBLIUS.

 [1] 1st clause, 4th section, of the 1st article.




THE FEDERALIST.
No. LX.

The Same Subject Continued

(Concerning the Power of Congress to Regulate the Election of Members)

From the New York Packet.

Tuesday, February 26, 1788.

HAMILTON


To the People of the State of New York:

We have seen, that an uncontrollable power over the elections to the
federal government could not, without hazard, be committed to the State
legislatures. Let us now see, what would be the danger on the other
side; that is, from confiding the ultimate right of regulating its own
elections to the Union itself. It is not pretended, that this right
would ever be used for the exclusion of any State from its share in the
representation. The interest of all would, in this respect at least, be
the security of all. But it is alleged, that it might be employed in
such a manner as to promote the election of some favorite class of men
in exclusion of others, by confining the places of election to
particular districts, and rendering it impracticable to the citizens at
large to partake in the choice. Of all chimerical suppositions, this
seems to be the most chimerical. On the one hand, no rational
calculation of probabilities would lead us to imagine that the
disposition which a conduct so violent and extraordinary would imply,
could ever find its way into the national councils; and on the other,
it may be concluded with certainty, that if so improper a spirit should
ever gain admittance into them, it would display itself in a form
altogether different and far more decisive.

The improbability of the attempt may be satisfactorily inferred from
this single reflection, that it could never be made without causing an
immediate revolt of the great body of the people, headed and directed
by the State governments. It is not difficult to conceive that this
characteristic right of freedom may, in certain turbulent and factious
seasons, be violated, in respect to a particular class of citizens, by
a victorious and overbearing majority; but that so fundamental a
privilege, in a country so situated and enlightened, should be invaded
to the prejudice of the great mass of the people, by the deliberate
policy of the government, without occasioning a popular revolution, is
altogether inconceivable and incredible.

In addition to this general reflection, there are considerations of a
more precise nature, which forbid all apprehension on the subject. The
dissimilarity in the ingredients which will compose the national
government, and still more in the manner in which they will be brought
into action in its various branches, must form a powerful obstacle to a
concert of views in any partial scheme of elections. There is
sufficient diversity in the state of property, in the genius, manners,
and habits of the people of the different parts of the Union, to
occasion a material diversity of disposition in their representatives
towards the different ranks and conditions in society. And though an
intimate intercourse under the same government will promote a gradual
assimilation in some of these respects, yet there are causes, as well
physical as moral, which may, in a greater or less degree, permanently
nourish different propensities and inclinations in this respect. But
the circumstance which will be likely to have the greatest influence in
the matter, will be the dissimilar modes of constituting the several
component parts of the government. The House of Representatives being
to be elected immediately by the people, the Senate by the State
legislatures, the President by electors chosen for that purpose by the
people, there would be little probability of a common interest to
cement these different branches in a predilection for any particular
class of electors.

As to the Senate, it is impossible that any regulation of “time and
manner,” which is all that is proposed to be submitted to the national
government in respect to that body, can affect the spirit which will
direct the choice of its members. The collective sense of the State
legislatures can never be influenced by extraneous circumstances of
that sort; a consideration which alone ought to satisfy us that the
discrimination apprehended would never be attempted. For what
inducement could the Senate have to concur in a preference in which
itself would not be included? Or to what purpose would it be
established, in reference to one branch of the legislature, if it could
not be extended to the other? The composition of the one would in this
case counteract that of the other. And we can never suppose that it
would embrace the appointments to the Senate, unless we can at the same
time suppose the voluntary co-operation of the State legislatures. If
we make the latter supposition, it then becomes immaterial where the
power in question is placed whether in their hands or in those of the
Union.

But what is to be the object of this capricious partiality in the
national councils? Is it to be exercised in a discrimination between
the different departments of industry, or between the different kinds
of property, or between the different degrees of property? Will it lean
in favor of the landed interest, or the moneyed interest, or the
mercantile interest, or the manufacturing interest? Or, to speak in the
fashionable language of the adversaries to the Constitution, will it
court the elevation of “the wealthy and the well-born,” to the
exclusion and debasement of all the rest of the society?

If this partiality is to be exerted in favor of those who are concerned
in any particular description of industry or property, I presume it
will readily be admitted, that the competition for it will lie between
landed men and merchants. And I scruple not to affirm, that it is
infinitely less likely that either of them should gain an ascendant in
the national councils, than that the one or the other of them should
predominate in all the local councils. The inference will be, that a
conduct tending to give an undue preference to either is much less to
be dreaded from the former than from the latter.

The several States are in various degrees addicted to agriculture and
commerce. In most, if not all of them, agriculture is predominant. In a
few of them, however, commerce nearly divides its empire, and in most
of them has a considerable share of influence. In proportion as either
prevails, it will be conveyed into the national representation; and for
the very reason, that this will be an emanation from a greater variety
of interests, and in much more various proportions, than are to be
found in any single State, it will be much less apt to espouse either
of them with a decided partiality, than the representation of any
single State.

In a country consisting chiefly of the cultivators of land, where the
rules of an equal representation obtain, the landed interest must, upon
the whole, preponderate in the government. As long as this interest
prevails in most of the State legislatures, so long it must maintain a
correspondent superiority in the national Senate, which will generally
be a faithful copy of the majorities of those assemblies. It cannot
therefore be presumed, that a sacrifice of the landed to the mercantile
class will ever be a favorite object of this branch of the federal
legislature. In applying thus particularly to the Senate a general
observation suggested by the situation of the country, I am governed by
the consideration, that the credulous votaries of State power cannot,
upon their own principles, suspect, that the State legislatures would
be warped from their duty by any external influence. But in reality the
same situation must have the same effect, in the primative composition
at least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this
quarter as from the other.

In order, perhaps, to give countenance to the objection at any rate, it
may be asked, is there not danger of an opposite bias in the national
government, which may dispose it to endeavor to secure a monopoly of
the federal administration to the landed class? As there is little
likelihood that the supposition of such a bias will have any terrors
for those who would be immediately injured by it, a labored answer to
this question will be dispensed with. It will be sufficient to remark,
first, that for the reasons elsewhere assigned, it is less likely that
any decided partiality should prevail in the councils of the Union than
in those of any of its members. Secondly, that there would be no
temptation to violate the Constitution in favor of the landed class,
because that class would, in the natural course of things, enjoy as
great a preponderancy as itself could desire. And thirdly, that men
accustomed to investigate the sources of public prosperity upon a large
scale, must be too well convinced of the utility of commerce, to be
inclined to inflict upon it so deep a wound as would result from the
entire exclusion of those who would best understand its interest from a
share in the management of them. The importance of commerce, in the
view of revenue alone, must effectually guard it against the enmity of
a body which would be continually importuned in its favor, by the
urgent calls of public necessity.

I the rather consult brevity in discussing the probability of a
preference founded upon a discrimination between the different kinds of
industry and property, because, as far as I understand the meaning of
the objectors, they contemplate a discrimination of another kind. They
appear to have in view, as the objects of the preference with which
they endeavor to alarm us, those whom they designate by the description
of “the wealthy and the well-born.” These, it seems, are to be exalted
to an odious pre-eminence over the rest of their fellow-citizens. At
one time, however, their elevation is to be a necessary consequence of
the smallness of the representative body; at another time it is to be
effected by depriving the people at large of the opportunity of
exercising their right of suffrage in the choice of that body.

But upon what principle is the discrimination of the places of election
to be made, in order to answer the purpose of the meditated preference?
Are “the wealthy and the well-born,” as they are called, confined to
particular spots in the several States? Have they, by some miraculous
instinct or foresight, set apart in each of them a common place of
residence? Are they only to be met with in the towns or cities? Or are
they, on the contrary, scattered over the face of the country as
avarice or chance may have happened to cast their own lot or that of
their predecessors? If the latter is the case, (as every intelligent
man knows it to be[1]) is it not evident that the policy of confining
the places of election to particular districts would be as subversive
of its own aim as it would be exceptionable on every other account? The
truth is, that there is no method of securing to the rich the
preference apprehended, but by prescribing qualifications of property
either for those who may elect or be elected. But this forms no part of
the power to be conferred upon the national government. Its authority
would be expressly restricted to the regulation of the TIMES, the
PLACES, the MANNER of elections. The qualifications of the persons who
may choose or be chosen, as has been remarked upon other occasions, are
defined and fixed in the Constitution, and are unalterable by the
legislature.

Let it, however, be admitted, for argument sake, that the expedient
suggested might be successful; and let it at the same time be equally
taken for granted that all the scruples which a sense of duty or an
apprehension of the danger of the experiment might inspire, were
overcome in the breasts of the national rulers, still I imagine it will
hardly be pretended that they could ever hope to carry such an
enterprise into execution without the aid of a military force
sufficient to subdue the resistance of the great body of the people.
The improbability of the existence of a force equal to that object has
been discussed and demonstrated in different parts of these papers; but
that the futility of the objection under consideration may appear in
the strongest light, it shall be conceded for a moment that such a
force might exist, and the national government shall be supposed to be
in the actual possession of it. What will be the conclusion? With a
disposition to invade the essential rights of the community, and with
the means of gratifying that disposition, is it presumable that the
persons who were actuated by it would amuse themselves in the
ridiculous task of fabricating election laws for securing a preference
to a favorite class of men? Would they not be likely to prefer a
conduct better adapted to their own immediate aggrandizement? Would
they not rather boldly resolve to perpetuate themselves in office by
one decisive act of usurpation, than to trust to precarious expedients
which, in spite of all the precautions that might accompany them, might
terminate in the dismission, disgrace, and ruin of their authors? Would
they not fear that citizens, not less tenacious than conscious of their
rights, would flock from the remote extremes of their respective States
to the places of election, to overthrow their tyrants, and to
substitute men who would be disposed to avenge the violated majesty of
the people?

PUBLIUS.

 [1] Particularly in the Southern States and in this State.




THE FEDERALIST.
No. LXI.

The Same Subject Continued

(Concerning the Power of Congress to Regulate the Election of Members)

From the New York Packet.

Tuesday, February 26, 1788.

HAMILTON


To the People of the State of New York:

The more candid opposers of the provision respecting elections,
contained in the plan of the convention, when pressed in argument, will
sometimes concede the propriety of that provision; with this
qualification, however, that it ought to have been accompanied with a
declaration, that all elections should be had in the counties where the
electors resided. This, say they, was a necessary precaution against an
abuse of the power. A declaration of this nature would certainly have
been harmless; so far as it would have had the effect of quieting
apprehensions, it might not have been undesirable. But it would, in
fact, have afforded little or no additional security against the danger
apprehended; and the want of it will never be considered, by an
impartial and judicious examiner, as a serious, still less as an
insuperable, objection to the plan. The different views taken of the
subject in the two preceding papers must be sufficient to satisfy all
dispassionate and discerning men, that if the public liberty should
ever be the victim of the ambition of the national rulers, the power
under examination, at least, will be guiltless of the sacrifice.

If those who are inclined to consult their jealousy only, would
exercise it in a careful inspection of the several State constitutions,
they would find little less room for disquietude and alarm, from the
latitude which most of them allow in respect to elections, than from
the latitude which is proposed to be allowed to the national government
in the same respect. A review of their situation, in this particular,
would tend greatly to remove any ill impressions which may remain in
regard to this matter. But as that view would lead into long and
tedious details, I shall content myself with the single example of the
State in which I write. The constitution of New York makes no other
provision for LOCALITY of elections, than that the members of the
Assembly shall be elected in the COUNTIES; those of the Senate, in the
great districts into which the State is or may be divided: these at
present are four in number, and comprehend each from two to six
counties. It may readily be perceived that it would not be more
difficult to the legislature of New York to defeat the suffrages of the
citizens of New York, by confining elections to particular places, than
for the legislature of the United States to defeat the suffrages of the
citizens of the Union, by the like expedient. Suppose, for instance,
the city of Albany was to be appointed the sole place of election for
the county and district of which it is a part, would not the
inhabitants of that city speedily become the only electors of the
members both of the Senate and Assembly for that county and district?
Can we imagine that the electors who reside in the remote subdivisions
of the counties of Albany, Saratoga, Cambridge, etc., or in any part of
the county of Montgomery, would take the trouble to come to the city of
Albany, to give their votes for members of the Assembly or Senate,
sooner than they would repair to the city of New York, to participate
in the choice of the members of the federal House of Representatives?
The alarming indifference discoverable in the exercise of so invaluable
a privilege under the existing laws, which afford every facility to it,
furnishes a ready answer to this question. And, abstracted from any
experience on the subject, we can be at no loss to determine, that when
the place of election is at an INCONVENIENT DISTANCE from the elector,
the effect upon his conduct will be the same whether that distance be
twenty miles or twenty thousand miles. Hence it must appear, that
objections to the particular modification of the federal power of
regulating elections will, in substance, apply with equal force to the
modification of the like power in the constitution of this State; and
for this reason it will be impossible to acquit the one, and to condemn
the other. A similar comparison would lead to the same conclusion in
respect to the constitutions of most of the other States.

If it should be said that defects in the State constitutions furnish no
apology for those which are to be found in the plan proposed, I answer,
that as the former have never been thought chargeable with inattention
to the security of liberty, where the imputations thrown on the latter
can be shown to be applicable to them also, the presumption is that
they are rather the cavilling refinements of a predetermined
opposition, than the well-founded inferences of a candid research after
truth. To those who are disposed to consider, as innocent omissions in
the State constitutions, what they regard as unpardonable blemishes in
the plan of the convention, nothing can be said; or at most, they can
only be asked to assign some substantial reason why the representatives
of the people in a single State should be more impregnable to the lust
of power, or other sinister motives, than the representatives of the
people of the United States? If they cannot do this, they ought at
least to prove to us that it is easier to subvert the liberties of
three millions of people, with the advantage of local governments to
head their opposition, than of two hundred thousand people who are
destitute of that advantage. And in relation to the point immediately
under consideration, they ought to convince us that it is less probable
that a predominant faction in a single State should, in order to
maintain its superiority, incline to a preference of a particular class
of electors, than that a similar spirit should take possession of the
representatives of thirteen States, spread over a vast region, and in
several respects distinguishable from each other by a diversity of
local circumstances, prejudices, and interests.

Hitherto my observations have only aimed at a vindication of the
provision in question, on the ground of theoretic propriety, on that of
the danger of placing the power elsewhere, and on that of the safety of
placing it in the manner proposed. But there remains to be mentioned a
positive advantage which will result from this disposition, and which
could not as well have been obtained from any other: I allude to the
circumstance of uniformity in the time of elections for the federal
House of Representatives. It is more than possible that this uniformity
may be found by experience to be of great importance to the public
welfare, both as a security against the perpetuation of the same spirit
in the body, and as a cure for the diseases of faction. If each State
may choose its own time of election, it is possible there may be at
least as many different periods as there are months in the year. The
times of election in the several States, as they are now established
for local purposes, vary between extremes as wide as March and
November. The consequence of this diversity would be that there could
never happen a total dissolution or renovation of the body at one time.
If an improper spirit of any kind should happen to prevail in it, that
spirit would be apt to infuse itself into the new members, as they come
forward in succession. The mass would be likely to remain nearly the
same, assimilating constantly to itself its gradual accretions. There
is a contagion in example which few men have sufficient force of mind
to resist. I am inclined to think that treble the duration in office,
with the condition of a total dissolution of the body at the same time,
might be less formidable to liberty than one third of that duration
subject to gradual and successive alterations.

Uniformity in the time of elections seems not less requisite for
executing the idea of a regular rotation in the Senate, and for
conveniently assembling the legislature at a stated period in each
year.

It may be asked, Why, then, could not a time have been fixed in the
Constitution? As the most zealous adversaries of the plan of the
convention in this State are, in general, not less zealous admirers of
the constitution of the State, the question may be retorted, and it may
be asked, Why was not a time for the like purpose fixed in the
constitution of this State? No better answer can be given than that it
was a matter which might safely be entrusted to legislative discretion;
and that if a time had been appointed, it might, upon experiment, have
been found less convenient than some other time. The same answer may be
given to the question put on the other side. And it may be added that
the supposed danger of a gradual change being merely speculative, it
would have been hardly advisable upon that speculation to establish, as
a fundamental point, what would deprive several States of the
convenience of having the elections for their own governments and for
the national government at the same epochs.

PUBLIUS.




THE FEDERALIST.
No. LXII.

The Senate

For the Independent Journal.

HAMILTON OR MADISON


To the People of the State of New York:

Having examined the constitution of the House of Representatives, and
answered such of the objections against it as seemed to merit notice, I
enter next on the examination of the Senate.

The heads into which this member of the government may be considered
are: I. The qualification of senators; II. The appointment of them by
the State legislatures; III. The equality of representation in the
Senate; IV. The number of senators, and the term for which they are to
be elected; V. The powers vested in the Senate.

I. The qualifications proposed for senators, as distinguished from
those of representatives, consist in a more advanced age and a longer
period of citizenship. A senator must be thirty years of age at least;
as a representative must be twenty-five. And the former must have been
a citizen nine years; as seven years are required for the latter. The
propriety of these distinctions is explained by the nature of the
senatorial trust, which, requiring greater extent of information and
stability of character, requires at the same time that the senator
should have reached a period of life most likely to supply these
advantages; and which, participating immediately in transactions with
foreign nations, ought to be exercised by none who are not thoroughly
weaned from the prepossessions and habits incident to foreign birth and
education. The term of nine years appears to be a prudent mediocrity
between a total exclusion of adopted citizens, whose merits and talents
may claim a share in the public confidence, and an indiscriminate and
hasty admission of them, which might create a channel for foreign
influence on the national councils.

II. It is equally unnecessary to dilate on the appointment of senators
by the State legislatures. Among the various modes which might have
been devised for constituting this branch of the government, that which
has been proposed by the convention is probably the most congenial with
the public opinion. It is recommended by the double advantage of
favoring a select appointment, and of giving to the State governments
such an agency in the formation of the federal government as must
secure the authority of the former, and may form a convenient link
between the two systems.

III. The equality of representation in the Senate is another point,
which, being evidently the result of compromise between the opposite
pretensions of the large and the small States, does not call for much
discussion. If indeed it be right, that among a people thoroughly
incorporated into one nation, every district ought to have a
PROPORTIONAL share in the government, and that among independent and
sovereign States, bound together by a simple league, the parties,
however unequal in size, ought to have an EQUAL share in the common
councils, it does not appear to be without some reason that in a
compound republic, partaking both of the national and federal
character, the government ought to be founded on a mixture of the
principles of proportional and equal representation. But it is
superfluous to try, by the standard of theory, a part of the
Constitution which is allowed on all hands to be the result, not of
theory, but “of a spirit of amity, and that mutual deference and
concession which the peculiarity of our political situation rendered
indispensable.” A common government, with powers equal to its objects,
is called for by the voice, and still more loudly by the political
situation, of America. A government founded on principles more
consonant to the wishes of the larger States, is not likely to be
obtained from the smaller States. The only option, then, for the
former, lies between the proposed government and a government still
more objectionable. Under this alternative, the advice of prudence must
be to embrace the lesser evil; and, instead of indulging a fruitless
anticipation of the possible mischiefs which may ensue, to contemplate
rather the advantageous consequences which may qualify the sacrifice.

In this spirit it may be remarked, that the equal vote allowed to each
State is at once a constitutional recognition of the portion of
sovereignty remaining in the individual States, and an instrument for
preserving that residuary sovereignty. So far the equality ought to be
no less acceptable to the large than to the small States; since they
are not less solicitous to guard, by every possible expedient, against
an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of
the Senate is, the additional impediment it must prove against improper
acts of legislation. No law or resolution can now be passed without the
concurrence, first, of a majority of the people, and then, of a
majority of the States. It must be acknowledged that this complicated
check on legislation may in some instances be injurious as well as
beneficial; and that the peculiar defense which it involves in favor of
the smaller States, would be more rational, if any interests common to
them, and distinct from those of the other States, would otherwise be
exposed to peculiar danger. But as the larger States will always be
able, by their power over the supplies, to defeat unreasonable
exertions of this prerogative of the lesser States, and as the faculty
and excess of law-making seem to be the diseases to which our
governments are most liable, it is not impossible that this part of the
Constitution may be more convenient in practice than it appears to many
in contemplation.

IV. The number of senators, and the duration of their appointment, come
next to be considered. In order to form an accurate judgment on both of
these points, it will be proper to inquire into the purposes which are
to be answered by a senate; and in order to ascertain these, it will be
necessary to review the inconveniences which a republic must suffer
from the want of such an institution.

First. It is a misfortune incident to republican government, though in
a less degree than to other governments, that those who administer it
may forget their obligations to their constituents, and prove
unfaithful to their important trust. In this point of view, a senate,
as a second branch of the legislative assembly, distinct from, and
dividing the power with, a first, must be in all cases a salutary check
on the government. It doubles the security to the people, by requiring
the concurrence of two distinct bodies in schemes of usurpation or
perfidy, where the ambition or corruption of one would otherwise be
sufficient. This is a precaution founded on such clear principles, and
now so well understood in the United States, that it would be more than
superfluous to enlarge on it. I will barely remark, that as the
improbability of sinister combinations will be in proportion to the
dissimilarity in the genius of the two bodies, it must be politic to
distinguish them from each other by every circumstance which will
consist with a due harmony in all proper measures, and with the genuine
principles of republican government.

Secondly. The necessity of a senate is not less indicated by the
propensity of all single and numerous assemblies to yield to the
impulse of sudden and violent passions, and to be seduced by factious
leaders into intemperate and pernicious resolutions. Examples on this
subject might be cited without number; and from proceedings within the
United States, as well as from the history of other nations. But a
position that will not be contradicted, need not be proved. All that
need be remarked is, that a body which is to correct this infirmity
ought itself to be free from it, and consequently ought to be less
numerous. It ought, moreover, to possess great firmness, and
consequently ought to hold its authority by a tenure of considerable
duration.

Thirdly. Another defect to be supplied by a senate lies in a want of
due acquaintance with the objects and principles of legislation. It is
not possible that an assembly of men called for the most part from
pursuits of a private nature, continued in appointment for a short
time, and led by no permanent motive to devote the intervals of public
occupation to a study of the laws, the affairs, and the comprehensive
interests of their country, should, if left wholly to themselves,
escape a variety of important errors in the exercise of their
legislative trust. It may be affirmed, on the best grounds, that no
small share of the present embarrassments of America is to be charged
on the blunders of our governments; and that these have proceeded from
the heads rather than the hearts of most of the authors of them. What
indeed are all the repealing, explaining, and amending laws, which fill
and disgrace our voluminous codes, but so many monuments of deficient
wisdom; so many impeachments exhibited by each succeeding against each
preceding session; so many admonitions to the people, of the value of
those aids which may be expected from a well-constituted senate?

A good government implies two things: first, fidelity to the object of
government, which is the happiness of the people; secondly, a knowledge
of the means by which that object can be best attained. Some
governments are deficient in both these qualities; most governments are
deficient in the first. I scruple not to assert, that in American
governments too little attention has been paid to the last. The federal
Constitution avoids this error; and what merits particular notice, it
provides for the last in a mode which increases the security for the
first.

Fourthly. The mutability in the public councils arising from a rapid
succession of new members, however qualified they may be, points out,
in the strongest manner, the necessity of some stable institution in
the government. Every new election in the States is found to change one
half of the representatives. From this change of men must proceed a
change of opinions; and from a change of opinions, a change of
measures. But a continual change even of good measures is inconsistent
with every rule of prudence and every prospect of success. The remark
is verified in private life, and becomes more just, as well as more
important, in national transactions.

To trace the mischievous effects of a mutable government would fill a
volume. I will hint a few only, each of which will be perceived to be a
source of innumerable others.

In the first place, it forfeits the respect and confidence of other
nations, and all the advantages connected with national character. An
individual who is observed to be inconstant to his plans, or perhaps to
carry on his affairs without any plan at all, is marked at once, by all
prudent people, as a speedy victim to his own unsteadiness and folly.
His more friendly neighbors may pity him, but all will decline to
connect their fortunes with his; and not a few will seize the
opportunity of making their fortunes out of his. One nation is to
another what one individual is to another; with this melancholy
distinction perhaps, that the former, with fewer of the benevolent
emotions than the latter, are under fewer restraints also from taking
undue advantage from the indiscretions of each other. Every nation,
consequently, whose affairs betray a want of wisdom and stability, may
calculate on every loss which can be sustained from the more systematic
policy of their wiser neighbors. But the best instruction on this
subject is unhappily conveyed to America by the example of her own
situation. She finds that she is held in no respect by her friends;
that she is the derision of her enemies; and that she is a prey to
every nation which has an interest in speculating on her fluctuating
councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It
poisons the blessing of liberty itself. It will be of little avail to
the people, that the laws are made by men of their own choice, if the
laws be so voluminous that they cannot be read, or so incoherent that
they cannot be understood; if they be repealed or revised before they
are promulgated, or undergo such incessant changes that no man, who
knows what the law is to-day, can guess what it will be to-morrow. Law
is defined to be a rule of action; but how can that be a rule, which is
little known, and less fixed?

Another effect of public instability is the unreasonable advantage it
gives to the sagacious, the enterprising, and the moneyed few over the
industrious and uniformed mass of the people. Every new regulation
concerning commerce or revenue, or in any way affecting the value of
the different species of property, presents a new harvest to those who
watch the change, and can trace its consequences; a harvest, reared not
by themselves, but by the toils and cares of the great body of their
fellow-citizens. This is a state of things in which it may be said with
some truth that laws are made for the FEW, not for the MANY.

In another point of view, great injury results from an unstable
government. The want of confidence in the public councils damps every
useful undertaking, the success and profit of which may depend on a
continuance of existing arrangements. What prudent merchant will hazard
his fortunes in any new branch of commerce when he knows not but that
his plans may be rendered unlawful before they can be executed? What
farmer or manufacturer will lay himself out for the encouragement given
to any particular cultivation or establishment, when he can have no
assurance that his preparatory labors and advances will not render him
a victim to an inconstant government? In a word, no great improvement
or laudable enterprise can go forward which requires the auspices of a
steady system of national policy.

But the most deplorable effect of all is that diminution of attachment
and reverence which steals into the hearts of the people, towards a
political system which betrays so many marks of infirmity, and
disappoints so many of their flattering hopes. No government, any more
than an individual, will long be respected without being truly
respectable; nor be truly respectable, without possessing a certain
portion of order and stability.

PUBLIUS.




THE FEDERALIST.
No. LXIII.

The Senate Continued

For the Independent Journal.

HAMILTON OR MADISON


To the People of the State of New York:

A fifth desideratum, illustrating the utility of a senate, is the want
of a due sense of national character. Without a select and stable
member of the government, the esteem of foreign powers will not only be
forfeited by an unenlightened and variable policy, proceeding from the
causes already mentioned, but the national councils will not possess
that sensibility to the opinion of the world, which is perhaps not less
necessary in order to merit, than it is to obtain, its respect and
confidence.

An attention to the judgment of other nations is important to every
government for two reasons: the one is, that, independently of the
merits of any particular plan or measure, it is desirable, on various
accounts, that it should appear to other nations as the offspring of a
wise and honorable policy; the second is, that in doubtful cases,
particularly where the national councils may be warped by some strong
passion or momentary interest, the presumed or known opinion of the
impartial world may be the best guide that can be followed. What has
not America lost by her want of character with foreign nations; and how
many errors and follies would she not have avoided, if the justice and
propriety of her measures had, in every instance, been previously tried
by the light in which they would probably appear to the unbiased part
of mankind?

Yet however requisite a sense of national character may be, it is
evident that it can never be sufficiently possessed by a numerous and
changeable body. It can only be found in a number so small that a
sensible degree of the praise and blame of public measures may be the
portion of each individual; or in an assembly so durably invested with
public trust, that the pride and consequence of its members may be
sensibly incorporated with the reputation and prosperity of the
community. The half-yearly representatives of Rhode Island would
probably have been little affected in their deliberations on the
iniquitous measures of that State, by arguments drawn from the light in
which such measures would be viewed by foreign nations, or even by the
sister States; whilst it can scarcely be doubted that if the
concurrence of a select and stable body had been necessary, a regard to
national character alone would have prevented the calamities under
which that misguided people is now laboring.

I add, as a SIXTH defect the want, in some important cases, of a due
responsibility in the government to the people, arising from that
frequency of elections which in other cases produces this
responsibility. This remark will, perhaps, appear not only new, but
paradoxical. It must nevertheless be acknowledged, when explained, to
be as undeniable as it is important.

Responsibility, in order to be reasonable, must be limited to objects
within the power of the responsible party, and in order to be
effectual, must relate to operations of that power, of which a ready
and proper judgment can be formed by the constituents. The objects of
government may be divided into two general classes: the one depending
on measures which have singly an immediate and sensible operation; the
other depending on a succession of well-chosen and well-connected
measures, which have a gradual and perhaps unobserved operation. The
importance of the latter description to the collective and permanent
welfare of every country, needs no explanation. And yet it is evident
that an assembly elected for so short a term as to be unable to provide
more than one or two links in a chain of measures, on which the general
welfare may essentially depend, ought not to be answerable for the
final result, any more than a steward or tenant, engaged for one year,
could be justly made to answer for places or improvements which could
not be accomplished in less than half a dozen years. Nor is it possible
for the people to estimate the SHARE of influence which their annual
assemblies may respectively have on events resulting from the mixed
transactions of several years. It is sufficiently difficult to preserve
a personal responsibility in the members of a NUMEROUS body, for such
acts of the body as have an immediate, detached, and palpable operation
on its constituents.

The proper remedy for this defect must be an additional body in the
legislative department, which, having sufficient permanency to provide
for such objects as require a continued attention, and a train of
measures, may be justly and effectually answerable for the attainment
of those objects.

Thus far I have considered the circumstances which point out the
necessity of a well-constructed Senate only as they relate to the
representatives of the people. To a people as little blinded by
prejudice or corrupted by flattery as those whom I address, I shall not
scruple to add, that such an institution may be sometimes necessary as
a defense to the people against their own temporary errors and
delusions. As the cool and deliberate sense of the community ought, in
all governments, and actually will, in all free governments, ultimately
prevail over the views of its rulers; so there are particular moments
in public affairs when the people, stimulated by some irregular
passion, or some illicit advantage, or misled by the artful
misrepresentations of interested men, may call for measures which they
themselves will afterwards be the most ready to lament and condemn. In
these critical moments, how salutary will be the interference of some
temperate and respectable body of citizens, in order to check the
misguided career, and to suspend the blow meditated by the people
against themselves, until reason, justice, and truth can regain their
authority over the public mind? What bitter anguish would not the
people of Athens have often escaped if their government had contained
so provident a safeguard against the tyranny of their own passions?
Popular liberty might then have escaped the indelible reproach of
decreeing to the same citizens the hemlock on one day and statues on
the next.

It may be suggested, that a people spread over an extensive region
cannot, like the crowded inhabitants of a small district, be subject to
the infection of violent passions, or to the danger of combining in
pursuit of unjust measures. I am far from denying that this is a
distinction of peculiar importance. I have, on the contrary, endeavored
in a former paper to show, that it is one of the principal
recommendations of a confederated republic. At the same time, this
advantage ought not to be considered as superseding the use of
auxiliary precautions. It may even be remarked, that the same extended
situation, which will exempt the people of America from some of the
dangers incident to lesser republics, will expose them to the
inconveniency of remaining for a longer time under the influence of
those misrepresentations which the combined industry of interested men
may succeed in distributing among them.

It adds no small weight to all these considerations, to recollect that
history informs us of no long-lived republic which had not a senate.
Sparta, Rome, and Carthage are, in fact, the only states to whom that
character can be applied. In each of the two first there was a senate
for life. The constitution of the senate in the last is less known.
Circumstantial evidence makes it probable that it was not different in
this particular from the two others. It is at least certain, that it
had some quality or other which rendered it an anchor against popular
fluctuations; and that a smaller council, drawn out of the senate, was
appointed not only for life, but filled up vacancies itself. These
examples, though as unfit for the imitation, as they are repugnant to
the genius, of America, are, notwithstanding, when compared with the
fugitive and turbulent existence of other ancient republics, very
instructive proofs of the necessity of some institution that will blend
stability with liberty. I am not unaware of the circumstances which
distinguish the American from other popular governments, as well
ancient as modern; and which render extreme circumspection necessary,
in reasoning from the one case to the other. But after allowing due
weight to this consideration, it may still be maintained, that there
are many points of similitude which render these examples not unworthy
of our attention. Many of the defects, as we have seen, which can only
be supplied by a senatorial institution, are common to a numerous
assembly frequently elected by the people, and to the people
themselves. There are others peculiar to the former, which require the
control of such an institution. The people can never wilfully betray
their own interests; but they may possibly be betrayed by the
representatives of the people; and the danger will be evidently greater
where the whole legislative trust is lodged in the hands of one body of
men, than where the concurrence of separate and dissimilar bodies is
required in every public act.

The difference most relied on, between the American and other
republics, consists in the principle of representation; which is the
pivot on which the former move, and which is supposed to have been
unknown to the latter, or at least to the ancient part of them. The use
which has been made of this difference, in reasonings contained in
former papers, will have shown that I am disposed neither to deny its
existence nor to undervalue its importance. I feel the less restraint,
therefore, in observing, that the position concerning the ignorance of
the ancient governments on the subject of representation, is by no
means precisely true in the latitude commonly given to it. Without
entering into a disquisition which here would be misplaced, I will
refer to a few known facts, in support of what I advance.

In the most pure democracies of Greece, many of the executive functions
were performed, not by the people themselves, but by officers elected
by the people, and REPRESENTING the people in their EXECUTIVE capacity.

Prior to the reform of Solon, Athens was governed by nine Archons,
annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated
to them seems to be left in great obscurity. Subsequent to that period,
we find an assembly, first of four, and afterwards of six hundred
members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing
them in their LEGISLATIVE capacity, since they were not only associated
with the people in the function of making laws, but had the exclusive
right of originating legislative propositions to the people. The senate
of Carthage, also, whatever might be its power, or the duration of its
appointment, appears to have been ELECTIVE by the suffrages of the
people. Similar instances might be traced in most, if not all the
popular governments of antiquity.

Lastly, in Sparta we meet with the Ephori, and in Rome with the
Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY
THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of
the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of
Crete were also annually ELECTED BY THE PEOPLE, and have been
considered by some authors as an institution analogous to those of
Sparta and Rome, with this difference only, that in the election of
that representative body the right of suffrage was communicated to a
part only of the people.

From these facts, to which many others might be added, it is clear that
the principle of representation was neither unknown to the ancients nor
wholly overlooked in their political constitutions. The true
distinction between these and the American governments, lies IN THE
TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any
share in the LATTER, and not in the TOTAL EXCLUSION OF THE
REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER.
The distinction, however, thus qualified, must be admitted to leave a
most advantageous superiority in favor of the United States. But to
insure to this advantage its full effect, we must be careful not to
separate it from the other advantage, of an extensive territory. For it
cannot be believed, that any form of representative government could
have succeeded within the narrow limits occupied by the democracies of
Greece.

In answer to all these arguments, suggested by reason, illustrated by
examples, and enforced by our own experience, the jealous adversary of
the Constitution will probably content himself with repeating, that a
senate appointed not immediately by the people, and for the term of six
years, must gradually acquire a dangerous pre-eminence in the
government, and finally transform it into a tyrannical aristocracy.

To this general answer, the general reply ought to be sufficient, that
liberty may be endangered by the abuses of liberty as well as by the
abuses of power; that there are numerous instances of the former as
well as of the latter; and that the former, rather than the latter, are
apparently most to be apprehended by the United States. But a more
particular reply may be given.

Before such a revolution can be effected, the Senate, it is to be
observed, must in the first place corrupt itself; must next corrupt the
State legislatures; must then corrupt the House of Representatives; and
must finally corrupt the people at large. It is evident that the Senate
must be first corrupted before it can attempt an establishment of
tyranny. Without corrupting the State legislatures, it cannot prosecute
the attempt, because the periodical change of members would otherwise
regenerate the whole body. Without exerting the means of corruption
with equal success on the House of Representatives, the opposition of
that coequal branch of the government would inevitably defeat the
attempt; and without corrupting the people themselves, a succession of
new representatives would speedily restore all things to their pristine
order. Is there any man who can seriously persuade himself that the
proposed Senate can, by any possible means within the compass of human
address, arrive at the object of a lawless ambition, through all these
obstructions?

If reason condemns the suspicion, the same sentence is pronounced by
experience. The constitution of Maryland furnishes the most apposite
example. The Senate of that State is elected, as the federal Senate
will be, indirectly by the people, and for a term less by one year only
than the federal Senate. It is distinguished, also, by the remarkable
prerogative of filling up its own vacancies within the term of its
appointment, and, at the same time, is not under the control of any
such rotation as is provided for the federal Senate. There are some
other lesser distinctions, which would expose the former to colorable
objections, that do not lie against the latter. If the federal Senate,
therefore, really contained the danger which has been so loudly
proclaimed, some symptoms at least of a like danger ought by this time
to have been betrayed by the Senate of Maryland, but no such symptoms
have appeared. On the contrary, the jealousies at first entertained by
men of the same description with those who view with terror the
correspondent part of the federal Constitution, have been gradually
extinguished by the progress of the experiment; and the Maryland
constitution is daily deriving, from the salutary operation of this
part of it, a reputation in which it will probably not be rivalled by
that of any State in the Union.

But if any thing could silence the jealousies on this subject, it ought
to be the British example. The Senate there instead of being elected
for a term of six years, and of being unconfined to particular families
or fortunes, is an hereditary assembly of opulent nobles. The House of
Representatives, instead of being elected for two years, and by the
whole body of the people, is elected for seven years, and, in very
great proportion, by a very small proportion of the people. Here,
unquestionably, ought to be seen in full display the aristocratic
usurpations and tyranny which are at some future period to be
exemplified in the United States. Unfortunately, however, for the
anti-federal argument, the British history informs us that this
hereditary assembly has not been able to defend itself against the
continual encroachments of the House of Representatives; and that it no
sooner lost the support of the monarch, than it was actually crushed by
the weight of the popular branch.

As far as antiquity can instruct us on this subject, its examples
support the reasoning which we have employed. In Sparta, the Ephori,
the annual representatives of the people, were found an overmatch for
the senate for life, continually gained on its authority and finally
drew all power into their own hands. The Tribunes of Rome, who were the
representatives of the people, prevailed, it is well known, in almost
every contest with the senate for life, and in the end gained the most
complete triumph over it. The fact is the more remarkable, as unanimity
was required in every act of the Tribunes, even after their number was
augmented to ten. It proves the irresistible force possessed by that
branch of a free government, which has the people on its side. To these
examples might be added that of Carthage, whose senate, according to
the testimony of Polybius, instead of drawing all power into its
vortex, had, at the commencement of the second Punic War, lost almost
the whole of its original portion.

Besides the conclusive evidence resulting from this assemblage of
facts, that the federal Senate will never be able to transform itself,
by gradual usurpations, into an independent and aristocratic body, we
are warranted in believing, that if such a revolution should ever
happen from causes which the foresight of man cannot guard against, the
House of Representatives, with the people on their side, will at all
times be able to bring back the Constitution to its primitive form and
principles. Against the force of the immediate representatives of the
people, nothing will be able to maintain even the constitutional
authority of the Senate, but such a display of enlightened policy, and
attachment to the public good, as will divide with that branch of the
legislature the affections and support of the entire body of the people
themselves.

PUBLIUS.




THE FEDERALIST.
No. LXIV.

The Powers of the Senate

From the New York Packet.

Friday, March 7, 1788.

JAY


To the People of the State of New York:

It is a just and not a new observation, that enemies to particular
persons, and opponents to particular measures, seldom confine their
censures to such things only in either as are worthy of blame. Unless
on this principle, it is difficult to explain the motives of their
conduct, who condemn the proposed Constitution in the aggregate, and
treat with severity some of the most unexceptionable articles in it.

The second section gives power to the President, “BY AND WITH THE
ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS
OF THE SENATORS PRESENT CONCUR.”

The power of making treaties is an important one, especially as it
relates to war, peace, and commerce; and it should not be delegated but
in such a mode, and with such precautions, as will afford the highest
security that it will be exercised by men the best qualified for the
purpose, and in the manner most conducive to the public good. The
convention appears to have been attentive to both these points: they
have directed the President to be chosen by select bodies of electors,
to be deputed by the people for that express purpose; and they have
committed the appointment of senators to the State legislatures. This
mode has, in such cases, vastly the advantage of elections by the
people in their collective capacity, where the activity of party zeal,
taking the advantage of the supineness, the ignorance, and the hopes
and fears of the unwary and interested, often places men in office by
the votes of a small proportion of the electors.

As the select assemblies for choosing the President, as well as the
State legislatures who appoint the senators, will in general be
composed of the most enlightened and respectable citizens, there is
reason to presume that their attention and their votes will be directed
to those men only who have become the most distinguished by their
abilities and virtue, and in whom the people perceive just grounds for
confidence. The Constitution manifests very particular attention to
this object. By excluding men under thirty-five from the first office,
and those under thirty from the second, it confines the electors to men
of whom the people have had time to form a judgment, and with respect
to whom they will not be liable to be deceived by those brilliant
appearances of genius and patriotism, which, like transient meteors,
sometimes mislead as well as dazzle. If the observation be well
founded, that wise kings will always be served by able ministers, it is
fair to argue, that as an assembly of select electors possess, in a
greater degree than kings, the means of extensive and accurate
information relative to men and characters, so will their appointments
bear at least equal marks of discretion and discernment. The inference
which naturally results from these considerations is this, that the
President and senators so chosen will always be of the number of those
who best understand our national interests, whether considered in
relation to the several States or to foreign nations, who are best able
to promote those interests, and whose reputation for integrity inspires
and merits confidence. With such men the power of making treaties may
be safely lodged.

Although the absolute necessity of system, in the conduct of any
business, is universally known and acknowledged, yet the high
importance of it in national affairs has not yet become sufficiently
impressed on the public mind. They who wish to commit the power under
consideration to a popular assembly, composed of members constantly
coming and going in quick succession, seem not to recollect that such a
body must necessarily be inadequate to the attainment of those great
objects, which require to be steadily contemplated in all their
relations and circumstances, and which can only be approached and
achieved by measures which not only talents, but also exact
information, and often much time, are necessary to concert and to
execute. It was wise, therefore, in the convention to provide, not only
that the power of making treaties should be committed to able and
honest men, but also that they should continue in place a sufficient
time to become perfectly acquainted with our national concerns, and to
form and introduce a a system for the management of them. The duration
prescribed is such as will give them an opportunity of greatly
extending their political information, and of rendering their
accumulating experience more and more beneficial to their country. Nor
has the convention discovered less prudence in providing for the
frequent elections of senators in such a way as to obviate the
inconvenience of periodically transferring those great affairs entirely
to new men; for by leaving a considerable residue of the old ones in
place, uniformity and order, as well as a constant succession of
official information will be preserved.

There are a few who will not admit that the affairs of trade and
navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should
correspond with and be made to promote it. It is of much consequence
that this correspondence and conformity be carefully maintained; and
they who assent to the truth of this position will see and confess that
it is well provided for by making concurrence of the Senate necessary
both to treaties and to laws.

It seldom happens in the negotiation of treaties, of whatever nature,
but that perfect SECRECY and immediate DESPATCH are sometimes
requisite. These are cases where the most useful intelligence may be
obtained, if the persons possessing it can be relieved from
apprehensions of discovery. Those apprehensions will operate on those
persons whether they are actuated by mercenary or friendly motives; and
there doubtless are many of both descriptions, who would rely on the
secrecy of the President, but who would not confide in that of the
Senate, and still less in that of a large popular Assembly. The
convention have done well, therefore, in so disposing of the power of
making treaties, that although the President must, in forming them, act
by the advice and consent of the Senate, yet he will be able to manage
the business of intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have
perceived that there are tides in them; tides very irregular in their
duration, strength, and direction, and seldom found to run twice
exactly in the same manner or measure. To discern and to profit by
these tides in national affairs is the business of those who preside
over them; and they who have had much experience on this head inform
us, that there frequently are occasions when days, nay, even when
hours, are precious. The loss of a battle, the death of a prince, the
removal of a minister, or other circumstances intervening to change the
present posture and aspect of affairs, may turn the most favorable tide
into a course opposite to our wishes. As in the field, so in the
cabinet, there are moments to be seized as they pass, and they who
preside in either should be left in capacity to improve them. So often
and so essentially have we heretofore suffered from the want of secrecy
and despatch, that the Constitution would have been inexcusably
defective, if no attention had been paid to those objects. Those
matters which in negotiations usually require the most secrecy and the
most despatch, are those preparatory and auxiliary measures which are
not otherwise important in a national view, than as they tend to
facilitate the attainment of the objects of the negotiation. For these,
the President will find no difficulty to provide; and should any
circumstance occur which requires the advice and consent of the Senate,
he may at any time convene them. Thus we see that the Constitution
provides that our negotiations for treaties shall have every advantage
which can be derived from talents, information, integrity, and
deliberate investigations, on the one hand, and from secrecy and
despatch on the other.

But to this plan, as to most others that have ever appeared, objections
are contrived and urged.

Some are displeased with it, not on account of any errors or defects in
it, but because, as the treaties, when made, are to have the force of
laws, they should be made only by men invested with legislative
authority. These gentlemen seem not to consider that the judgments of
our courts, and the commissions constitutionally given by our governor,
are as valid and as binding on all persons whom they concern, as the
laws passed by our legislature. All constitutional acts of power,
whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the
legislature; and therefore, whatever name be given to the power of
making treaties, or however obligatory they may be when made, certain
it is, that the people may, with much propriety, commit the power to a
distinct body from the legislature, the executive, or the judicial. It
surely does not follow, that because they have given the power of
making laws to the legislature, that therefore they should likewise
give them the power to do every other act of sovereignty by which the
citizens are to be bound and affected.

Others, though content that treaties should be made in the mode
proposed, are averse to their being the SUPREME laws of the land. They
insist, and profess to believe, that treaties like acts of assembly,
should be repealable at pleasure. This idea seems to be new and
peculiar to this country, but new errors, as well as new truths, often
appear. These gentlemen would do well to reflect that a treaty is only
another name for a bargain, and that it would be impossible to find a
nation who would make any bargain with us, which should be binding on
them ABSOLUTELY, but on us only so long and so far as we may think
proper to be bound by it. They who make laws may, without doubt, amend
or repeal them; and it will not be disputed that they who make treaties
may alter or cancel them; but still let us not forget that treaties are
made, not by only one of the contracting parties, but by both; and
consequently, that as the consent of both was essential to their
formation at first, so must it ever afterwards be to alter or cancel
them. The proposed Constitution, therefore, has not in the least
extended the obligation of treaties. They are just as binding, and just
as far beyond the lawful reach of legislative acts now, as they will be
at any future period, or under any form of government.

However useful jealousy may be in republics, yet when like bile in the
natural, it abounds too much in the body politic, the eyes of both
become very liable to be deceived by the delusive appearances which
that malady casts on surrounding objects. From this cause, probably,
proceed the fears and apprehensions of some, that the President and
Senate may make treaties without an equal eye to the interests of all
the States. Others suspect that two thirds will oppress the remaining
third, and ask whether those gentlemen are made sufficiently
responsible for their conduct; whether, if they act corruptly, they can
be punished; and if they make disadvantageous treaties, how are we to
get rid of those treaties?

As all the States are equally represented in the Senate, and by men the
most able and the most willing to promote the interests of their
constituents, they will all have an equal degree of influence in that
body, especially while they continue to be careful in appointing proper
persons, and to insist on their punctual attendance. In proportion as
the United States assume a national form and a national character, so
will the good of the whole be more and more an object of attention, and
the government must be a weak one indeed, if it should forget that the
good of the whole can only be promoted by advancing the good of each of
the parts or members which compose the whole. It will not be in the
power of the President and Senate to make any treaties by which they
and their families and estates will not be equally bound and affected
with the rest of the community; and, having no private interests
distinct from that of the nation, they will be under no temptations to
neglect the latter.

As to corruption, the case is not supposable. He must either have been
very unfortunate in his intercourse with the world, or possess a heart
very susceptible of such impressions, who can think it probable that
the President and two thirds of the Senate will ever be capable of such
unworthy conduct. The idea is too gross and too invidious to be
entertained. But in such a case, if it should ever happen, the treaty
so obtained from us would, like all other fraudulent contracts, be null
and void by the law of nations.

With respect to their responsibility, it is difficult to conceive how
it could be increased. Every consideration that can influence the human
mind, such as honor, oaths, reputations, conscience, the love of
country, and family affections and attachments, afford security for
their fidelity. In short, as the Constitution has taken the utmost care
that they shall be men of talents and integrity, we have reason to be
persuaded that the treaties they make will be as advantageous as, all
circumstances considered, could be made; and so far as the fear of
punishment and disgrace can operate, that motive to good behavior is
amply afforded by the article on the subject of impeachments.

PUBLIUS.




THE FEDERALIST.
No. LXV.

The Powers of the Senate Continued

From the New York Packet.

Friday, March 7, 1788.

HAMILTON


To the People of the State of New York:

The remaining powers which the plan of the convention allots to the
Senate, in a distinct capacity, are comprised in their participation
with the executive in the appointment to offices, and in their judicial
character as a court for the trial of impeachments. As in the business
of appointments the executive will be the principal agent, the
provisions relating to it will most properly be discussed in the
examination of that department. We will, therefore, conclude this head
with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not
more to be desired than difficult to be obtained in a government wholly
elective. The subjects of its jurisdiction are those offenses which
proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature which may
with peculiar propriety be denominated POLITICAL, as they relate
chiefly to injuries done immediately to the society itself. The
prosecution of them, for this reason, will seldom fail to agitate the
passions of the whole community, and to divide it into parties more or
less friendly or inimical to the accused. In many cases it will connect
itself with the pre-existing factions, and will enlist all their
animosities, partialities, influence, and interest on one side or on
the other; and in such cases there will always be the greatest danger
that the decision will be regulated more by the comparative strength of
parties, than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the
political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The difficulty
of placing it rightly, in a government resting entirely on the basis of
periodical elections, will as readily be perceived, when it is
considered that the most conspicuous characters in it will, from that
circumstance, be too often the leaders or the tools of the most cunning
or the most numerous faction, and on this account, can hardly be
expected to possess the requisite neutrality towards those whose
conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary
of this important trust. Those who can best discern the intrinsic
difficulty of the thing, will be least hasty in condemning that
opinion, and will be most inclined to allow due weight to the arguments
which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is
it not designed as a method of NATIONAL INQUEST into the conduct of
public men? If this be the design of it, who can so properly be the
inquisitors for the nation as the representatives of the nation
themselves? It is not disputed that the power of originating the
inquiry, or, in other words, of preferring the impeachment, ought to be
lodged in the hands of one branch of the legislative body. Will not the
reasons which indicate the propriety of this arrangement strongly plead
for an admission of the other branch of that body to a share of the
inquiry? The model from which the idea of this institution has been
borrowed, pointed out that course to the convention. In Great Britain
it is the province of the House of Commons to prefer the impeachment,
and of the House of Lords to decide upon it. Several of the State
constitutions have followed the example. As well the latter, as the
former, seem to have regarded the practice of impeachments as a bridle
in the hands of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be
regarded?

Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to
preserve, unawed and uninfluenced, the necessary impartiality between
an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS
ACCUSERS?

Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would possess
the degree of credit and authority, which might, on certain occasions,
be indispensable towards reconciling the people to a decision that
should happen to clash with an accusation brought by their immediate
representatives. A deficiency in the first, would be fatal to the
accused; in the last, dangerous to the public tranquillity. The hazard
in both these respects, could only be avoided, if at all, by rendering
that tribunal more numerous than would consist with a reasonable
attention to economy. The necessity of a numerous court for the trial
of impeachments, is equally dictated by the nature of the proceeding.
This can never be tied down by such strict rules, either in the
delineation of the offense by the prosecutors, or in the construction
of it by the judges, as in common cases serve to limit the discretion
of courts in favor of personal security. There will be no jury to stand
between the judges who are to pronounce the sentence of the law, and
the party who is to receive or suffer it. The awful discretion which a
court of impeachments must necessarily have, to doom to honor or to
infamy the most confidential and the most distinguished characters of
the community, forbids the commitment of the trust to a small number of
persons.

These considerations seem alone sufficient to authorize a conclusion,
that the Supreme Court would have been an improper substitute for the
Senate, as a court of impeachments. There remains a further
consideration, which will not a little strengthen this conclusion. It
is this: The punishment which may be the consequence of conviction upon
impeachment, is not to terminate the chastisement of the offender.
After having been sentenced to a perpetual ostracism from the esteem
and confidence, and honors and emoluments of his country, he will still
be liable to prosecution and punishment in the ordinary course of law.
Would it be proper that the persons who had disposed of his fame, and
his most valuable rights as a citizen in one trial, should, in another
trial, for the same offense, be also the disposers of his life and his
fortune? Would there not be the greatest reason to apprehend, that
error, in the first sentence, would be the parent of error in the
second sentence? That the strong bias of one decision would be apt to
overrule the influence of any new lights which might be brought to vary
the complexion of another decision? Those who know anything of human
nature, will not hesitate to answer these questions in the affirmative;
and will be at no loss to perceive, that by making the same persons
judges in both cases, those who might happen to be the objects of
prosecution would, in a great measure, be deprived of the double
security intended them by a double trial. The loss of life and estate
would often be virtually included in a sentence which, in its terms,
imported nothing more than dismission from a present, and
disqualification for a future, office. It may be said, that the
intervention of a jury, in the second instance, would obviate the
danger. But juries are frequently influenced by the opinions of judges.
They are sometimes induced to find special verdicts, which refer the
main question to the decision of the court. Who would be willing to
stake his life and his estate upon the verdict of a jury acting under
the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the
Supreme Court with the Senate, in the formation of the court of
impeachments? This union would certainly have been attended with
several advantages; but would they not have been overbalanced by the
signal disadvantage, already stated, arising from the agency of the
same judges in the double prosecution to which the offender would be
liable? To a certain extent, the benefits of that union will be
obtained from making the chief justice of the Supreme Court the
president of the court of impeachments, as is proposed to be done in
the plan of the convention; while the inconveniences of an entire
incorporation of the former into the latter will be substantially
avoided. This was perhaps the prudent mean. I forbear to remark upon
the additional pretext for clamor against the judiciary, which so
considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial
of impeachments, of persons wholly distinct from the other departments
of the government? There are weighty arguments, as well against, as in
favor of, such a plan. To some minds it will not appear a trivial
objection, that it could tend to increase the complexity of the
political machine, and to add a new spring to the government, the
utility of which would at best be questionable. But an objection which
will not be thought by any unworthy of attention, is this: a court
formed upon such a plan, would either be attended with a heavy expense,
or might in practice be subject to a variety of casualties and
inconveniences. It must either consist of permanent officers,
stationary at the seat of government, and of course entitled to fixed
and regular stipends, or of certain officers of the State governments
to be called upon whenever an impeachment was actually depending. It
will not be easy to imagine any third mode materially different, which
could rationally be proposed. As the court, for reasons already given,
ought to be numerous, the first scheme will be reprobated by every man
who can compare the extent of the public wants with the means of
supplying them. The second will be espoused with caution by those who
will seriously consider the difficulty of collecting men dispersed over
the whole Union; the injury to the innocent, from the procrastinated
determination of the charges which might be brought against them; the
advantage to the guilty, from the opportunities which delay would
afford to intrigue and corruption; and in some cases the detriment to
the State, from the prolonged inaction of men whose firm and faithful
execution of their duty might have exposed them to the persecution of
an intemperate or designing majority in the House of Representatives.
Though this latter supposition may seem harsh, and might not be likely
often to be verified, yet it ought not to be forgotten that the demon
of faction will, at certain seasons, extend his sceptre over all
numerous bodies of men.

But though one or the other of the substitutes which have been
examined, or some other that might be devised, should be thought
preferable to the plan in this respect, reported by the convention, it
will not follow that the Constitution ought for this reason to be
rejected. If mankind were to resolve to agree in no institution of
government, until every part of it had been adjusted to the most exact
standard of perfection, society would soon become a general scene of
anarchy, and the world a desert. Where is the standard of perfection to
be found? Who will undertake to unite the discordant opinions of a
whole community, in the same judgment of it; and to prevail upon one
conceited projector to renounce his INFALLIBLE criterion for the
FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the
purpose of the adversaries of the Constitution, they ought to prove,
not merely that particular provisions in it are not the best which
might have been imagined, but that the plan upon the whole is bad and
pernicious.

PUBLIUS.




THE FEDERALIST.
No. LXVI.

Objections to the Power of the Senate To Set as a Court for
Impeachments Further Considered

From the New York Packet.

Tuesday, March 11, 1788.

HAMILTON


To the People of the State of New York:

A review of the principal objections that have appeared against the
proposed court for the trial of impeachments, will not improbably
eradicate the remains of any unfavorable impressions which may still
exist in regard to this matter.

The FIRST of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and wellestablished maxim which requires a
separation between the different departments of power. The true meaning
of this maxim has been discussed and ascertained in another place, and
has been shown to be entirely compatible with a partial intermixture of
those departments for special purposes, preserving them, in the main,
distinct and unconnected. This partial intermixture is even, in some
cases, not only proper but necessary to the mutual defense of the
several members of the government against each other. An absolute or
qualified negative in the executive upon the acts of the legislative
body, is admitted, by the ablest adepts in political science, to be an
indispensable barrier against the encroachments of the latter upon the
former. And it may, perhaps, with no less reason be contended, that the
powers relating to impeachments are, as before intimated, an essential
check in the hands of that body upon the encroachments of the
executive. The division of them between the two branches of the
legislature, assigning to one the right of accusing, to the other the
right of judging, avoids the inconvenience of making the same persons
both accusers and judges; and guards against the danger of persecution,
from the prevalency of a factious spirit in either of those branches.
As the concurrence of two thirds of the Senate will be requisite to a
condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire.

It is curious to observe, with what vehemence this part of the plan is
assailed, on the principle here taken notice of, by men who profess to
admire, without exception, the constitution of this State; while that
constitution makes the Senate, together with the chancellor and judges
of the Supreme Court, not only a court of impeachments, but the highest
judicatory in the State, in all causes, civil and criminal. The
proportion, in point of numbers, of the chancellor and judges to the
senators, is so inconsiderable, that the judiciary authority of New
York, in the last resort, may, with truth, be said to reside in its
Senate. If the plan of the convention be, in this respect, chargeable
with a departure from the celebrated maxim which has been so often
mentioned, and seems to be so little understood, how much more culpable
must be the constitution of New York?[1]

A SECOND objection to the Senate, as a court of impeachments, is, that
it contributes to an undue accumulation of power in that body, tending
to give to the government a countenance too aristocratic. The Senate,
it is observed, is to have concurrent authority with the Executive in
the formation of treaties and in the appointment to offices: if, say
the objectors, to these prerogatives is added that of deciding in all
cases of impeachment, it will give a decided predominancy to senatorial
influence. To an objection so little precise in itself, it is not easy
to find a very precise answer. Where is the measure or criterion to
which we can appeal, for determining what will give the Senate too
much, too little, or barely the proper degree of influence? Will it not
be more safe, as well as more simple, to dismiss such vague and
uncertain calculations, to examine each power by itself, and to decide,
on general principles, where it may be deposited with most advantage
and least inconvenience?

If we take this course, it will lead to a more intelligible, if not to
a more certain result. The disposition of the power of making treaties,
which has obtained in the plan of the convention, will, then, if I
mistake not, appear to be fully justified by the considerations stated
in a former number, and by others which will occur under the next head
of our inquiries. The expediency of the junction of the Senate with the
Executive, in the power of appointing to offices, will, I trust, be
placed in a light not less satisfactory, in the disquisitions under the
same head. And I flatter myself the observations in my last paper must
have gone no inconsiderable way towards proving that it was not easy,
if practicable, to find a more fit receptacle for the power of
determining impeachments, than that which has been chosen. If this be
truly the case, the hypothetical dread of the too great weight of the
Senate ought to be discarded from our reasonings.

But this hypothesis, such as it is, has already been refuted in the
remarks applied to the duration in office prescribed for the senators.
It was by them shown, as well on the credit of historical examples, as
from the reason of the thing, that the most POPULAR branch of every
government, partaking of the republican genius, by being generally the
favorite of the people, will be as generally a full match, if not an
overmatch, for every other member of the Government.

But independent of this most active and operative principle, to secure
the equilibrium of the national House of Representatives, the plan of
the convention has provided in its favor several important
counterpoises to the additional authorities to be conferred upon the
Senate. The exclusive privilege of originating money bills will belong
to the House of Representatives. The same house will possess the sole
right of instituting impeachments: is not this a complete
counterbalance to that of determining them? The same house will be the
umpire in all elections of the President, which do not unite the
suffrages of a majority of the whole number of electors; a case which
it cannot be doubted will sometimes, if not frequently, happen. The
constant possibility of the thing must be a fruitful source of
influence to that body. The more it is contemplated, the more important
will appear this ultimate though contingent power, of deciding the
competitions of the most illustrious citizens of the Union, for the
first office in it. It would not perhaps be rash to predict, that as a
mean of influence it will be found to outweigh all the peculiar
attributes of the Senate.

A THIRD objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It is
imagined that they would be too indulgent judges of the conduct of men,
in whose official creation they had participated. The principle of this
objection would condemn a practice, which is to be seen in all the
State governments, if not in all the governments with which we are
acquainted: I mean that of rendering those who hold offices during
pleasure, dependent on the pleasure of those who appoint them. With
equal plausibility might it be alleged in this case, that the
favoritism of the latter would always be an asylum for the misbehavior
of the former. But that practice, in contradiction to this principle,
proceeds upon the presumption, that the responsibility of those who
appoint, for the fitness and competency of the persons on whom they
bestow their choice, and the interest they will have in the respectable
and prosperous administration of affairs, will inspire a sufficient
disposition to dismiss from a share in it all such who, by their
conduct, shall have proved themselves unworthy of the confidence
reposed in them. Though facts may not always correspond with this
presumption, yet if it be, in the main, just, it must destroy the
supposition that the Senate, who will merely sanction the choice of the
Executive, should feel a bias, towards the objects of that choice,
strong enough to blind them to the evidences of guilt so extraordinary,
as to have induced the representatives of the nation to become its
accusers.

If any further arguments were necessary to evince the improbability of
such a bias, it might be found in the nature of the agency of the
Senate in the business of appointments.

It will be the office of the President to NOMINATE, and, with the
advice and consent of the Senate, to APPOINT. There will, of course, be
no exertion of CHOICE on the part of the Senate. They may defeat one
choice of the Executive, and oblige him to make another; but they
cannot themselves CHOOSE, they can only ratify or reject the choice of
the President. They might even entertain a preference to some other
person, at the very moment they were assenting to the one proposed,
because there might be no positive ground of opposition to him; and
they could not be sure, if they withheld their assent, that the
subsequent nomination would fall upon their own favorite, or upon any
other person in their estimation more meritorious than the one
rejected. Thus it could hardly happen, that the majority of the Senate
would feel any other complacency towards the object of an appointment
than such as the appearances of merit might inspire, and the proofs of
the want of it destroy.

A FOURTH objection to the Senate in the capacity of a court of
impeachments, is derived from its union with the Executive in the power
of making treaties. This, it has been said, would constitute the
senators their own judges, in every case of a corrupt or perfidious
execution of that trust. After having combined with the Executive in
betraying the interests of the nation in a ruinous treaty, what
prospect, it is asked, would there be of their being made to suffer the
punishment they would deserve, when they were themselves to decide upon
the accusation brought against them for the treachery of which they
have been guilty?

This objection has been circulated with more earnestness and with
greater show of reason than any other which has appeared against this
part of the plan; and yet I am deceived if it does not rest upon an
erroneous foundation.

The security essentially intended by the Constitution against
corruption and treachery in the formation of treaties, is to be sought
for in the numbers and characters of those who are to make them. The
JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of
the members of a body selected by the collective wisdom of the
legislatures of the several States, is designed to be the pledge for
the fidelity of the national councils in this particular. The
convention might with propriety have meditated the punishment of the
Executive, for a deviation from the instructions of the Senate, or a
want of integrity in the conduct of the negotiations committed to him;
they might also have had in view the punishment of a few leading
individuals in the Senate, who should have prostituted their influence
in that body as the mercenary instruments of foreign corruption: but
they could not, with more or with equal propriety, have contemplated
the impeachment and punishment of two thirds of the Senate, consenting
to an improper treaty, than of a majority of that or of the other
branch of the national legislature, consenting to a pernicious or
unconstitutional law, a principle which, I believe, has never been
admitted into any government. How, in fact, could a majority in the
House of Representatives impeach themselves? Not better, it is evident,
than two thirds of the Senate might try themselves. And yet what reason
is there, that a majority of the House of Representatives, sacrificing
the interests of the society by an unjust and tyrannical act of
legislation, should escape with impunity, more than two thirds of the
Senate, sacrificing the same interests in an injurious treaty with a
foreign power? The truth is, that in all such cases it is essential to
the freedom and to the necessary independence of the deliberations of
the body, that the members of it should be exempt from punishment for
acts done in a collective capacity; and the security to the society
must depend on the care which is taken to confide the trust to proper
hands, to make it their interest to execute it with fidelity, and to
make it as difficult as possible for them to combine in any interest
opposite to that of the public good.

So far as might concern the misbehavior of the Executive in perverting
the instructions or contravening the views of the Senate, we need not
be apprehensive of the want of a disposition in that body to punish the
abuse of their confidence or to vindicate their own authority. We may
thus far count upon their pride, if not upon their virtue. And so far
even as might concern the corruption of leading members, by whose arts
and influence the majority may have been inveigled into measures odious
to the community, if the proofs of that corruption should be
satisfactory, the usual propensity of human nature will warrant us in
concluding that there would be commonly no defect of inclination in the
body to divert the public resentment from themselves by a ready
sacrifice of the authors of their mismanagement and disgrace.

PUBLIUS.

 [1] In that of New Jersey, also, the final judiciary authority is in a
 branch of the legislature. In New Hampshire, Massachusetts,
 Pennsylvanis, and South Carolina, one branch of the legislature is the
 court for the trial of impeachments.




THE FEDERALIST.
No. LXVII.

The Executive Department

From the New York Packet.

Tuesday, March 11, 1788.

HAMILTON


To the People of the State of New York:

The constitution of the executive department of the proposed
government, claims next our attention.

There is hardly any part of the system which could have been attended
with greater difficulty in the arrangement of it than this; and there
is, perhaps, none which has been inveighed against with less candor or
criticised with less judgment.

Here the writers against the Constitution seem to have taken pains to
signalize their talent of misrepresentation. Calculating upon the
aversion of the people to monarchy, they have endeavored to enlist all
their jealousies and apprehensions in opposition to the intended
President of the United States; not merely as the embryo, but as the
full-grown progeny, of that detested parent. To establish the pretended
affinity, they have not scrupled to draw resources even from the
regions of fiction. The authorities of a magistrate, in few instances
greater, in some instances less, than those of a governor of New York,
have been magnified into more than royal prerogatives. He has been
decorated with attributes superior in dignity and splendor to those of
a king of Great Britain. He has been shown to us with the diadem
sparkling on his brow and the imperial purple flowing in his train. He
has been seated on a throne surrounded with minions and mistresses,
giving audience to the envoys of foreign potentates, in all the
supercilious pomp of majesty. The images of Asiatic despotism and
voluptuousness have scarcely been wanting to crown the exaggerated
scene. We have been taught to tremble at the terrific visages of
murdering janizaries, and to blush at the unveiled mysteries of a
future seraglio.

Attempts so extravagant as these to disfigure or, it might rather be
said, to metamorphose the object, render it necessary to take an
accurate view of its real nature and form: in order as well to
ascertain its true aspect and genuine appearance, as to unmask the
disingenuity and expose the fallacy of the counterfeit resemblances
which have been so insidiously, as well as industriously, propagated.

In the execution of this task, there is no man who would not find it an
arduous effort either to behold with moderation, or to treat with
seriousness, the devices, not less weak than wicked, which have been
contrived to pervert the public opinion in relation to the subject.
They so far exceed the usual though unjustifiable licenses of party
artifice, that even in a disposition the most candid and tolerant, they
must force the sentiments which favor an indulgent construction of the
conduct of political adversaries to give place to a voluntary and
unreserved indignation. It is impossible not to bestow the imputation
of deliberate imposture and deception upon the gross pretense of a
similitude between a king of Great Britain and a magistrate of the
character marked out for that of the President of the United States. It
is still more impossible to withhold that imputation from the rash and
barefaced expedients which have been employed to give success to the
attempted imposition.

In one instance, which I cite as a sample of the general spirit, the
temerity has proceeded so far as to ascribe to the President of the
United States a power which by the instrument reported is EXPRESSLY
allotted to the Executives of the individual States. I mean the power
of filling casual vacancies in the Senate.

This bold experiment upon the discernment of his countrymen has been
hazarded by a writer who (whatever may be his real merit) has had no
inconsiderable share in the applauses of his party;[1] and who, upon
this false and unfounded suggestion, has built a series of observations
equally false and unfounded. Let him now be confronted with the
evidence of the fact, and let him, if he be able, justify or extenuate
the shameful outrage he has offered to the dictates of truth and to the
rules of fair dealing.

The second clause of the second section of the second article empowers
the President of the United States “to nominate, and by and with the
advice and consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
OFFICERS of United States whose appointments are NOT in the
Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY
LAW.” Immediately after this clause follows another in these words:
“The President shall have power to fill up ?? VACANCIES that may happen
DURING THE RECESS OF THE SENATE, by granting commissions which shall
EXPIRE AT THE END OF THEIR NEXT SESSION.” It is from this last
provision that the pretended power of the President to fill vacancies
in the Senate has been deduced. A slight attention to the connection of
the clauses, and to the obvious meaning of the terms, will satisfy us
that the deduction is not even colorable.

The first of these two clauses, it is clear, only provides a mode for
appointing such officers, “whose appointments are NOT OTHERWISE
PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY
LAW”; of course it cannot extend to the appointments of senators, whose
appointments are OTHERWISE PROVIDED FOR in the Constitution,[2] and who
are ESTABLISHED BY THE CONSTITUTION, and will not require a future
establishment by law. This position will hardly be contested.

The last of these two clauses, it is equally clear, cannot be
understood to comprehend the power of filling vacancies in the Senate,
for the following reasons: First. The relation in which that clause
stands to the other, which declares the general mode of appointing
officers of the United States, denotes it to be nothing more than a
supplement to the other, for the purpose of establishing an auxiliary
method of appointment, in cases to which the general method was
inadequate. The ordinary power of appointment is confined to the
President and Senate JOINTLY, and can therefore only be exercised
during the session of the Senate; but as it would have been improper to
oblige this body to be continually in session for the appointment of
officers and as vacancies might happen IN THEIR RECESS, which it might
be necessary for the public service to fill without delay, the
succeeding clause is evidently intended to authorize the President,
SINGLY, to make temporary appointments “during the recess of the
Senate, by granting commissions which shall expire at the end of their
next session.” Secondly. If this clause is to be considered as
supplementary to the one which precedes, the VACANCIES of which it
speaks must be construed to relate to the “officers” described in the
preceding one; and this, we have seen, excludes from its description
the members of the Senate. Thirdly. The time within which the power is
to operate, “during the recess of the Senate,” and the duration of the
appointments, “to the end of the next session” of that body, conspire
to elucidate the sense of the provision, which, if it had been intended
to comprehend senators, would naturally have referred the temporary
power of filling vacancies to the recess of the State legislatures, who
are to make the permanent appointments, and not to the recess of the
national Senate, who are to have no concern in those appointments; and
would have extended the duration in office of the temporary senators to
the next session of the legislature of the State, in whose
representation the vacancies had happened, instead of making it to
expire at the end of the ensuing session of the national Senate. The
circumstances of the body authorized to make the permanent appointments
would, of course, have governed the modification of a power which
related to the temporary appointments; and as the national Senate is
the body, whose situation is alone contemplated in the clause upon
which the suggestion under examination has been founded, the vacancies
to which it alludes can only be deemed to respect those officers in
whose appointment that body has a concurrent agency with the President.
But lastly, the first and second clauses of the third section of the
first article, not only obviate all possibility of doubt, but destroy
the pretext of misconception. The former provides, that “the Senate of
the United States shall be composed of two Senators from each State,
chosen BY THE LEGISLATURE THEREOF for six years”; and the latter
directs, that, “if vacancies in that body should happen by resignation
or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the
Executive THEREOF may make temporary appointments until the NEXT
MEETING OF THE LEGISLATURE, which shall then fill such vacancies.” Here
is an express power given, in clear and unambiguous terms, to the State
Executives, to fill casual vacancies in the Senate, by temporary
appointments; which not only invalidates the supposition, that the
clause before considered could have been intended to confer that power
upon the President of the United States, but proves that this
supposition, destitute as it is even of the merit of plausibility, must
have originated in an intention to deceive the people, too palpable to
be obscured by sophistry, too atrocious to be palliated by hypocrisy.

I have taken the pains to select this instance of misrepresentation,
and to place it in a clear and strong light, as an unequivocal proof of
the unwarrantable arts which are practiced to prevent a fair and
impartial judgment of the real merits of the Constitution submitted to
the consideration of the people. Nor have I scrupled, in so flagrant a
case, to allow myself a severity of animadversion little congenial with
the general spirit of these papers. I hesitate not to submit it to the
decision of any candid and honest adversary of the proposed government,
whether language can furnish epithets of too much asperity, for so
shameless and so prostitute an attempt to impose on the citizens of
America.

PUBLIUS.

 [1] See CATO, No. V.

 [2] Article 1, section 3, clause 1.




THE FEDERALIST.
No. LXVIII.

The Mode of Electing the President

From the New York Packet.

Friday, March 14, 1788.

HAMILTON


To the People of the State of New York:

The mode of appointment of the Chief Magistrate of the United States is
almost the only part of the system, of any consequence, which has
escaped without severe censure, or which has received the slightest
mark of approbation from its opponents. The most plausible of these,
who has appeared in print, has even deigned to admit that the election
of the President is pretty well guarded.[1] I venture somewhat further,
and hesitate not to affirm, that if the manner of it be not perfect, it
is at least excellent. It unites in an eminent degree all the
advantages, the union of which was to be wished for.

It was desirable that the sense of the people should operate in the
choice of the person to whom so important a trust was to be confided.
This end will be answered by committing the right of making it, not to
any preestablished body, but to men chosen by the people for the
special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by
men most capable of analyzing the qualities adapted to the station, and
acting under circumstances favorable to deliberation, and to a
judicious combination of all the reasons and inducements which were
proper to govern their choice. A small number of persons, selected by
their fellow-citizens from the general mass, will be most likely to
possess the information and discernment requisite to such complicated
investigations.

It was also peculiarly desirable to afford as little opportunity as
possible to tumult and disorder. This evil was not least to be dreaded
in the election of a magistrate, who was to have so important an agency
in the administration of the government as the President of the United
States. But the precautions which have been so happily concerted in the
system under consideration, promise an effectual security against this
mischief. The choice of SEVERAL, to form an intermediate body of
electors, will be much less apt to convulse the community with any
extraordinary or violent movements, than the choice of ONE who was
himself to be the final object of the public wishes. And as the
electors, chosen in each State, are to assemble and vote in the State
in which they are chosen, this detached and divided situation will
expose them much less to heats and ferments, which might be
communicated from them to the people, than if they were all to be
convened at one time, in one place.

Nothing was more to be desired than that every practicable obstacle
should be opposed to cabal, intrigue, and corruption. These most deadly
adversaries of republican government might naturally have been expected
to make their approaches from more than one quarter, but chiefly from
the desire in foreign powers to gain an improper ascendant in our
councils. How could they better gratify this, than by raising a
creature of their own to the chief magistracy of the Union? But the
convention have guarded against all danger of this sort, with the most
provident and judicious attention. They have not made the appointment
of the President to depend on any preexisting bodies of men, who might
be tampered with beforehand to prostitute their votes; but they have
referred it in the first instance to an immediate act of the people of
America, to be exerted in the choice of persons for the temporary and
sole purpose of making the appointment. And they have excluded from
eligibility to this trust, all those who from situation might be
suspected of too great devotion to the President in office. No senator,
representative, or other person holding a place of trust or profit
under the United States, can be of the numbers of the electors. Thus
without corrupting the body of the people, the immediate agents in the
election will at least enter upon the task free from any sinister bias.
Their transient existence, and their detached situation, already taken
notice of, afford a satisfactory prospect of their continuing so, to
the conclusion of it. The business of corruption, when it is to embrace
so considerable a number of men, requires time as well as means. Nor
would it be found easy suddenly to embark them, dispersed as they would
be over thirteen States, in any combinations founded upon motives,
which though they could not properly be denominated corrupt, might yet
be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the Executive
should be independent for his continuance in office on all but the
people themselves. He might otherwise be tempted to sacrifice his duty
to his complaisance for those whose favor was necessary to the duration
of his official consequence. This advantage will also be secured, by
making his re-election to depend on a special body of representatives,
deputed by the society for the single purpose of making the important
choice.

All these advantages will happily combine in the plan devised by the
convention; which is, that the people of each State shall choose a
number of persons as electors, equal to the number of senators and
representatives of such State in the national government, who shall
assemble within the State, and vote for some fit person as President.
Their votes, thus given, are to be transmitted to the seat of the
national government, and the person who may happen to have a majority
of the whole number of votes will be the President. But as a majority
of the votes might not always happen to centre in one man, and as it
might be unsafe to permit less than a majority to be conclusive, it is
provided that, in such a contingency, the House of Representatives
shall select out of the candidates who shall have the five highest
number of votes, the man who in their opinion may be best qualified for
the office.

The process of election affords a moral certainty, that the office of
President will never fall to the lot of any man who is not in an
eminent degree endowed with the requisite qualifications. Talents for
low intrigue, and the little arts of popularity, may alone suffice to
elevate a man to the first honors in a single State; but it will
require other talents, and a different kind of merit, to establish him
in the esteem and confidence of the whole Union, or of so considerable
a portion of it as would be necessary to make him a successful
candidate for the distinguished office of President of the United
States. It will not be too strong to say, that there will be a constant
probability of seeing the station filled by characters pre-eminent for
ability and virtue. And this will be thought no inconsiderable
recommendation of the Constitution, by those who are able to estimate
the share which the executive in every government must necessarily have
in its good or ill administration. Though we cannot acquiesce in the
political heresy of the poet who says:

“For forms of government let fools contest
That which is best administered is best,”

yet we may safely pronounce, that the true test of a good government is
its aptitude and tendency to produce a good administration.

The Vice-President is to be chosen in the same manner with the
President; with this difference, that the Senate is to do, in respect
to the former, what is to be done by the House of Representatives, in
respect to the latter.

The appointment of an extraordinary person, as Vice-President, has been
objected to as superfluous, if not mischievous. It has been alleged,
that it would have been preferable to have authorized the Senate to
elect out of their own body an officer answering that description. But
two considerations seem to justify the ideas of the convention in this
respect. One is, that to secure at all times the possibility of a
definite resolution of the body, it is necessary that the President
should have only a casting vote. And to take the senator of any State
from his seat as senator, to place him in that of President of the
Senate, would be to exchange, in regard to the State from which he
came, a constant for a contingent vote. The other consideration is,
that as the Vice-President may occasionally become a substitute for the
President, in the supreme executive magistracy, all the reasons which
recommend the mode of election prescribed for the one, apply with great
if not with equal force to the manner of appointing the other. It is
remarkable that in this, as in most other instances, the objection
which is made would lie against the constitution of this State. We have
a Lieutenant-Governor, chosen by the people at large, who presides in
the Senate, and is the constitutional substitute for the Governor, in
casualties similar to those which would authorize the Vice-President to
exercise the authorities and discharge the duties of the President.

PUBLIUS.

 [1] _Vide Federal Farmer_.




THE FEDERALIST.
No. LXIX.

The Real Character of the Executive

From the New York Packet.

Friday, March 14, 1788.

HAMILTON


To the People of the State of New York:

I proceed now to trace the real characters of the proposed Executive,
as they are marked out in the plan of the convention. This will serve
to place in a strong light the unfairness of the representations which
have been made in regard to it.

The first thing which strikes our attention is, that the executive
authority, with few exceptions, is to be vested in a single magistrate.
This will scarcely, however, be considered as a point upon which any
comparison can be grounded; for if, in this particular, there be a
resemblance to the king of Great Britain, there is not less a
resemblance to the Grand Seignior, to the khan of Tartary, to the Man
of the Seven Mountains, or to the governor of New York.

That magistrate is to be elected for FOUR years; and is to be
re-eligible as often as the people of the United States shall think him
worthy of their confidence. In these circumstances there is a total
dissimilitude between HIM and a king of Great Britain, who is an
HEREDITARY monarch, possessing the crown as a patrimony descendible to
his heirs forever; but there is a close analogy between HIM and a
governor of New York, who is elected for THREE years, and is
re-eligible without limitation or intermission. If we consider how much
less time would be requisite for establishing a dangerous influence in
a single State, than for establishing a like influence throughout the
United States, we must conclude that a duration of FOUR years for the
Chief Magistrate of the Union is a degree of permanency far less to be
dreaded in that office, than a duration of THREE years for a
corresponding office in a single State.

The President of the United States would be liable to be impeached,
tried, and, upon conviction of treason, bribery, or other high crimes
or misdemeanors, removed from office; and would afterwards be liable to
prosecution and punishment in the ordinary course of law. The person of
the king of Great Britain is sacred and inviolable; there is no
constitutional tribunal to which he is amenable; no punishment to which
he can be subjected without involving the crisis of a national
revolution. In this delicate and important circumstance of personal
responsibility, the President of Confederated America would stand upon
no better ground than a governor of New York, and upon worse ground
than the governors of Maryland and Delaware.

The President of the United States is to have power to return a bill,
which shall have passed the two branches of the legislature, for
reconsideration; and the bill so returned is to become a law, if, upon
that reconsideration, it be approved by two thirds of both houses. The
king of Great Britain, on his part, has an absolute negative upon the
acts of the two houses of Parliament. The disuse of that power for a
considerable time past does not affect the reality of its existence;
and is to be ascribed wholly to the crown’s having found the means of
substituting influence to authority, or the art of gaining a majority
in one or the other of the two houses, to the necessity of exerting a
prerogative which could seldom be exerted without hazarding some degree
of national agitation. The qualified negative of the President differs
widely from this absolute negative of the British sovereign; and
tallies exactly with the revisionary authority of the council of
revision of this State, of which the governor is a constituent part. In
this respect the power of the President would exceed that of the
governor of New York, because the former would possess, singly, what
the latter shares with the chancellor and judges; but it would be
precisely the same with that of the governor of Massachusetts, whose
constitution, as to this article, seems to have been the original from
which the convention have copied.

The President is to be the “commander-in-chief of the army and navy of
the United States, and of the militia of the several States, when
called into the actual service of the United States. He is to have
power to grant reprieves and pardons for offenses against the United
States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the
consideration of Congress such measures as he shall judge necessary and
expedient; to convene, on extraordinary occasions, both houses of the
legislature, or either of them, and, in case of disagreement between
them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such
time as he shall think proper; to take care that the laws be faithfully
executed; and to commission all officers of the United States.” In most
of these particulars, the power of the President will resemble equally
that of the king of Great Britain and of the governor of New York. The
most material points of difference are these: First. The President will
have only the occasional command of such part of the militia of the
nation as by legislative provision may be called into the actual
service of the Union. The king of Great Britain and the governor of New
York have at all times the entire command of all the militia within
their several jurisdictions. In this article, therefore, the power of
the President would be inferior to that of either the monarch or the
governor. Secondly. The President is to be commander-in-chief of the
army and navy of the United States. In this respect his authority would
be nominally the same with that of the king of Great Britain, but in
substance much inferior to it. It would amount to nothing more than the
supreme command and direction of the military and naval forces, as
first General and admiral of the Confederacy; while that of the British
king extends to the DECLARING of war and to the RAISING and REGULATING
of fleets and armies, all which, by the Constitution under
consideration, would appertain to the legislature.[1] The governor of
New York, on the other hand, is by the constitution of the State vested
only with the command of its militia and navy. But the constitutions of
several of the States expressly declare their governors to be
commanders-in-chief, as well of the army as navy; and it may well be a
question, whether those of New Hampshire and Massachusetts, in
particular, do not, in this instance, confer larger powers upon their
respective governors, than could be claimed by a President of the
United States. Thirdly. The power of the President, in respect to
pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The
governor of New York may pardon in all cases, even in those of
impeachment, except for treason and murder. Is not the power of the
governor, in this article, on a calculation of political consequences,
greater than that of the President? All conspiracies and plots against
the government, which have not been matured into actual treason, may be
screened from punishment of every kind, by the interposition of the
prerogative of pardoning. If a governor of New York, therefore, should
be at the head of any such conspiracy, until the design had been
ripened into actual hostility he could insure his accomplices and
adherents an entire impunity. A President of the Union, on the other
hand, though he may even pardon treason, when prosecuted in the
ordinary course of law, could shelter no offender, in any degree, from
the effects of impeachment and conviction. Would not the prospect of a
total indemnity for all the preliminary steps be a greater temptation
to undertake and persevere in an enterprise against the public liberty,
than the mere prospect of an exemption from death and confiscation, if
the final execution of the design, upon an actual appeal to arms,
should miscarry? Would this last expectation have any influence at all,
when the probability was computed, that the person who was to afford
that exemption might himself be involved in the consequences of the
measure, and might be incapacitated by his agency in it from affording
the desired impunity? The better to judge of this matter, it will be
necessary to recollect, that, by the proposed Constitution, the offense
of treason is limited “to levying war upon the United States, and
adhering to their enemies, giving them aid and comfort”; and that by
the laws of New York it is confined within similar bounds. Fourthly.
The President can only adjourn the national legislature in the single
case of disagreement about the time of adjournment. The British monarch
may prorogue or even dissolve the Parliament. The governor of New York
may also prorogue the legislature of this State for a limited time; a
power which, in certain situations, may be employed to very important
purposes.

The President is to have power, with the advice and consent of the
Senate, to make treaties, provided two thirds of the senators present
concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of his
own accord make treaties of peace, commerce, alliance, and of every
other description. It has been insinuated, that his authority in this
respect is not conclusive, and that his conventions with foreign powers
are subject to the revision, and stand in need of the ratification, of
Parliament. But I believe this doctrine was never heard of, until it
was broached upon the present occasion. Every jurist[2] of that
kingdom, and every other man acquainted with its Constitution, knows,
as an established fact, that the prerogative of making treaties exists
in the crown in its utmost plentitude; and that the compacts entered
into by the royal authority have the most complete legal validity and
perfection, independent of any other sanction. The Parliament, it is
true, is sometimes seen employing itself in altering the existing laws
to conform them to the stipulations in a new treaty; and this may have
possibly given birth to the imagination, that its co-operation was
necessary to the obligatory efficacy of the treaty. But this
parliamentary interposition proceeds from a different cause: from the
necessity of adjusting a most artificial and intricate system of
revenue and commercial laws, to the changes made in them by the
operation of the treaty; and of adapting new provisions and precautions
to the new state of things, to keep the machine from running into
disorder. In this respect, therefore, there is no comparison between
the intended power of the President and the actual power of the British
sovereign. The one can perform alone what the other can do only with
the concurrence of a branch of the legislature. It must be admitted,
that, in this instance, the power of the federal Executive would exceed
that of any State Executive. But this arises naturally from the
sovereign power which relates to treaties. If the Confederacy were to
be dissolved, it would become a question, whether the Executives of the
several States were not solely invested with that delicate and
important prerogative.

The President is also to be authorized to receive ambassadors and other
public ministers. This, though it has been a rich theme of declamation,
is more a matter of dignity than of authority. It is a circumstance
which will be without consequence in the administration of the
government; and it was far more convenient that it should be arranged
in this manner, than that there should be a necessity of convening the
legislature, or one of its branches, upon every arrival of a foreign
minister, though it were merely to take the place of a departed
predecessor.

The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE
SENATE, to appoint ambassadors and other public ministers, judges of
the Supreme Court, and in general all officers of the United States
established by law, and whose appointments are not otherwise provided
for by the Constitution. The king of Great Britain is emphatically and
truly styled the fountain of honor. He not only appoints to all
offices, but can create offices. He can confer titles of nobility at
pleasure; and has the disposal of an immense number of church
preferments. There is evidently a great inferiority in the power of the
President, in this particular, to that of the British king; nor is it
equal to that of the governor of New York, if we are to interpret the
meaning of the constitution of the State by the practice which has
obtained under it. The power of appointment is with us lodged in a
council, composed of the governor and four members of the Senate,
chosen by the Assembly. The governor CLAIMS, and has frequently
EXERCISED, the right of nomination, and is ENTITLED to a casting vote
in the appointment. If he really has the right of nominating, his
authority is in this respect equal to that of the President, and
exceeds it in the article of the casting vote. In the national
government, if the Senate should be divided, no appointment could be
made; in the government of New York, if the council should be divided,
the governor can turn the scale, and confirm his own nomination.[3] If
we compare the publicity which must necessarily attend the mode of
appointment by the President and an entire branch of the national
legislature, with the privacy in the mode of appointment by the
governor of New York, closeted in a secret apartment with at most four,
and frequently with only two persons; and if we at the same time
consider how much more easy it must be to influence the small number of
which a council of appointment consists, than the considerable number
of which the national Senate would consist, we cannot hesitate to
pronounce that the power of the chief magistrate of this State, in the
disposition of offices, must, in practice, be greatly superior to that
of the Chief Magistrate of the Union.

Hence it appears that, except as to the concurrent authority of the
President in the article of treaties, it would be difficult to
determine whether that magistrate would, in the aggregate, possess more
or less power than the Governor of New York. And it appears yet more
unequivocally, that there is no pretense for the parallel which has
been attempted between him and the king of Great Britain. But to render
the contrast in this respect still more striking, it may be of use to
throw the principal circumstances of dissimilitude into a closer group.

The President of the United States would be an officer elected by the
people for FOUR years; the king of Great Britain is a perpetual and
HEREDITARY prince. The one would be amenable to personal punishment and
disgrace; the person of the other is sacred and inviolable. The one
would have a QUALIFIED negative upon the acts of the legislative body;
the other has an ABSOLUTE negative. The one would have a right to
command the military and naval forces of the nation; the other, in
addition to this right, possesses that of DECLARING war, and of RAISING
and REGULATING fleets and armies by his own authority. The one would
have a concurrent power with a branch of the legislature in the
formation of treaties; the other is the SOLE POSSESSOR of the power of
making treaties. The one would have a like concurrent authority in
appointing to offices; the other is the sole author of all
appointments. The one can confer no privileges whatever; the other can
make denizens of aliens, noblemen of commoners; can erect corporations
with all the rights incident to corporate bodies. The one can prescribe
no rules concerning the commerce or currency of the nation; the other
is in several respects the arbiter of commerce, and in this capacity
can establish markets and fairs, can regulate weights and measures, can
lay embargoes for a limited time, can coin money, can authorize or
prohibit the circulation of foreign coin. The one has no particle of
spiritual jurisdiction; the other is the supreme head and governor of
the national church! What answer shall we give to those who would
persuade us that things so unlike resemble each other? The same that
ought to be given to those who tell us that a government, the whole
power of which would be in the hands of the elective and periodical
servants of the people, is an aristocracy, a monarchy, and a despotism.

PUBLIUS.

 [1] A writer in a Pennsylvania paper, under the signature of TAMONY,
 has asserted that the king of Great Britain owes his prerogative as
 commander-in-chief to an annual mutiny bill. The truth is, on the
 contrary, that his prerogative, in this respect, is immemorial, and
 was only disputed, “contrary to all reason and precedent,” as
 Blackstone vol. i., page 262, expresses it, by the Long Parliament of
 Charles I. but by the statute the 13th of Charles II., chap. 6, it was
 declared to be in the king alone, for that the sole supreme government
 and command of the militia within his Majesty’s realms and dominions,
 and of all forces by sea and land, and of all forts and places of
 strength, EVER WAS AND IS the undoubted right of his Majesty and his
 royal predecessors, kings and queens of England, and that both or
 either house of Parliament cannot nor ought to pretend to the same.

 [2] _Vide_ Blackstone’s _Commentaries_, vol i., p. 257.

 [3] Candor, however, demands an acknowledgment that I do not think the
 claim of the governor to a right of nomination well founded. Yet it is
 always justifiable to reason from the practice of a government, till
 its propriety has been constitutionally questioned. And independent of
 this claim, when we take into view the other considerations, and
 pursue them through all their consequences, we shall be inclined to
 draw much the same conclusion.




THE FEDERALIST.
No. LXX.

(There are two slightly different versions of No. 70 included here.)

The Executive Department Further Considered

From the New York Packet.

Tuesday, March 18, 1788.

HAMILTON


To the People of the State of New York:

There is an idea, which is not without its advocates, that a vigorous
Executive is inconsistent with the genius of republican government. The
enlightened well-wishers to this species of government must at least
hope that the supposition is destitute of foundation; since they can
never admit its truth, without at the same time admitting the
condemnation of their own principles. Energy in the Executive is a
leading character in the definition of good government. It is essential
to the protection of the community against foreign attacks; it is not
less essential to the steady administration of the laws; to the
protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy. Every man the least conversant in
Roman story, knows how often that republic was obliged to take refuge
in the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government, as
against the invasions of external enemies who menaced the conquest and
destruction of Rome.

There can be no need, however, to multiply arguments or examples on
this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in theory,
must be, in practice, a bad government.

Taking it for granted, therefore, that all men of sense will agree in
the necessity of an energetic Executive, it will only remain to
inquire, what are the ingredients which constitute this energy? How far
can they be combined with those other ingredients which constitute
safety in the republican sense? And how far does this combination
characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the Executive are, first,
unity; secondly, duration; thirdly, an adequate provision for its
support; fourthly, competent powers.

The ingredients which constitute safety in the repub lican sense are,
first, a due dependence on the people, secondly, a due responsibility.

Those politicians and statesmen who have been the most celebrated for
the soundness of their principles and for the justice of their views,
have declared in favor of a single Executive and a numerous
legislature. They have with great propriety, considered energy as the
most necessary qualification of the former, and have regarded this as
most applicable to power in a single hand, while they have, with equal
propriety, considered the latter as best adapted to deliberation and
wisdom, and best calculated to conciliate the confidence of the people
and to secure their privileges and interests.

That unity is conducive to energy will not be disputed. Decision,
activity, secrecy, and despatch will generally characterize the
proceedings of one man in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in
two or more magistrates of equal dignity and authority; or by vesting
it ostensibly in one man, subject, in whole or in part, to the control
and co-operation of others, in the capacity of counsellors to him. Of
the first, the two Consuls of Rome may serve as an example; of the
last, we shall find examples in the constitutions of several of the
States. New York and New Jersey, if I recollect right, are the only
States which have intrusted the executive authority wholly to single
men.[1] Both these methods of destroying the unity of the Executive
have their partisans; but the votaries of an executive council are the
most numerous. They are both liable, if not to equal, to similar
objections, and may in most lights be examined in conjunction.

The experience of other nations will afford little instruction on this
head. As far, however, as it teaches any thing, it teaches us not to be
enamoured of plurality in the Executive. We have seen that the
Achaeans, on an experiment of two Praetors, were induced to abolish
one. The Roman history records many instances of mischiefs to the
republic from the dissensions between the Consuls, and between the
military Tribunes, who were at times substituted for the Consuls. But
it gives us no specimens of any peculiar advantages derived to the
state from the circumstance of the plurality of those magistrates. That
the dissensions between them were not more frequent or more fatal, is a
matter of astonishment, until we advert to the singular position in
which the republic was almost continually placed, and to the prudent
policy pointed out by the circumstances of the state, and pursued by
the Consuls, of making a division of the government between them. The
patricians engaged in a perpetual struggle with the plebeians for the
preservation of their ancient authorities and dignities; the Consuls,
who were generally chosen out of the former body, were commonly united
by the personal interest they had in the defense of the privileges of
their order. In addition to this motive of union, after the arms of the
republic had considerably expanded the bounds of its empire, it became
an established custom with the Consuls to divide the administration
between themselves by lot one of them remaining at Rome to govern the
city and its environs, the other taking the command in the more distant
provinces. This expedient must, no doubt, have had great influence in
preventing those collisions and rivalships which might otherwise have
embroiled the peace of the republic.

But quitting the dim light of historical research, attaching ourselves
purely to the dictates of reason and good sense, we shall discover much
greater cause to reject than to approve the idea of plurality in the
Executive, under any modification whatever.

Wherever two or more persons are engaged in any common enterprise or
pursuit, there is always danger of difference of opinion. If it be a
public trust or office, in which they are clothed with equal dignity
and authority, there is peculiar danger of personal emulation and even
animosity. From either, and especially from all these causes, the most
bitter dissensions are apt to spring. Whenever these happen, they
lessen the respectability, weaken the authority, and distract the plans
and operation of those whom they divide. If they should unfortunately
assail the supreme executive magistracy of a country, consisting of a
plurality of persons, they might impede or frustrate the most important
measures of the government, in the most critical emergencies of the
state. And what is still worse, they might split the community into the
most violent and irreconcilable factions, adhering differently to the
different individuals who composed the magistracy.

Men often oppose a thing, merely because they have had no agency in
planning it, or because it may have been planned by those whom they
dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves bound in
honor, and by all the motives of personal infallibility, to defeat the
success of what has been resolved upon contrary to their sentiments.
Men of upright, benevolent tempers have too many opportunities of
remarking, with horror, to what desperate lengths this disposition is
sometimes carried, and how often the great interests of society are
sacrificed to the vanity, to the conceit, and to the obstinacy of
individuals, who have credit enough to make their passions and their
caprices interesting to mankind. Perhaps the question now before the
public may, in its consequences, afford melancholy proofs of the
effects of this despicable frailty, or rather detestable vice, in the
human character.

Upon the principles of a free government, inconveniences from the
source just mentioned must necessarily be submitted to in the formation
of the legislature; but it is unnecessary, and therefore unwise, to
introduce them into the constitution of the Executive. It is here too
that they may be most pernicious. In the legislature, promptitude of
decision is oftener an evil than a benefit. The differences of opinion,
and the jarrings of parties in that department of the government,
though they may sometimes obstruct salutary plans, yet often promote
deliberation and circumspection, and serve to check excesses in the
majority. When a resolution too is once taken, the opposition must be
at an end. That resolution is a law, and resistance to it punishable.
But no favorable circumstances palliate or atone for the disadvantages
of dissension in the executive department. Here, they are pure and
unmixed. There is no point at which they cease to operate. They serve
to embarrass and weaken the execution of the plan or measure to which
they relate, from the first step to the final conclusion of it. They
constantly counteract those qualities in the Executive which are the
most necessary ingredients in its composition, vigor and expedition,
and this without anycounterbalancing good. In the conduct of war, in
which the energy of the Executive is the bulwark of the national
security, every thing would be to be apprehended from its plurality.

It must be confessed that these observations apply with principal
weight to the first case supposed that is, to a plurality of
magistrates of equal dignity and authority a scheme, the advocates for
which are not likely to form a numerous sect; but they apply, though
not with equal, yet with considerable weight to the project of a
council, whose concurrence is made constitutionally necessary to the
operations of the ostensible Executive. An artful cabal in that council
would be able to distract and to enervate the whole system of
administration. If no such cabal should exist, the mere diversity of
views and opinions would alone be sufficient to tincture the exercise
of the executive authority with a spirit of habitual feebleness and
dilatoriness.

But one of the weightiest objections to a plurality in the Executive,
and which lies as much against the last as the first plan, is, that it
tends to conceal faults and destroy responsibility. Responsibility is
of two kinds to censure and to punishment. The first is the more
important of the two, especially in an elective office. Man, in public
trust, will much oftener act in such a manner as to render him unworthy
of being any longer trusted, than in such a manner as to make him
obnoxious to legal punishment. But the multiplication of the Executive
adds to the difficulty of detection in either case. It often becomes
impossible, amidst mutual accusations, to determine on whom the blame
or the punishment of a pernicious measure, or series of pernicious
measures, ought really to fall. It is shifted from one to another with
so much dexterity, and under such plausible appearances, that the
public opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage or
misfortune are sometimes so complicated that, where there are a number
of actors who may have had different degrees and kinds of agency,
though we may clearly see upon the whole that there has been
mismanagement, yet it may be impracticable to pronounce to whose
account the evil which may have been incurred is truly chargeable.

“I was overruled by my council. The council were so divided in their
opinions that it was impossible to obtain any better resolution on the
point.” These and similar pretexts are constantly at hand, whether true
or false. And who is there that will either take the trouble or incur
the odium, of a strict scrunity into the secret springs of the
transaction? Should there be found a citizen zealous enough to
undertake the unpromising task, if there happen to be collusion between
the parties concerned, how easy it is to clothe the circumstances with
so much ambiguity, as to render it uncertain what was the precise
conduct of any of those parties?

In the single instance in which the governor of this State is coupled
with a council that is, in the appointment to offices, we have seen the
mischiefs of it in the view now under consideration. Scandalous
appointments to important offices have been made. Some cases, indeed,
have been so flagrant that ALL PARTIES have agreed in the impropriety
of the thing. When inquiry has been made, the blame has been laid by
the governor on the members of the council, who, on their part, have
charged it upon his nomination; while the people remain altogether at a
loss to determine, by whose influence their interests have been
committed to hands so unqualified and so manifestly improper. In
tenderness to individuals, I forbear to descend to particulars.

It is evident from these considerations, that the plurality of the
Executive tends to deprive the people of the two greatest securities
they can have for the faithful exercise of any delegated power, first,
the restraints of public opinion, which lose their efficacy, as well on
account of the division of the censure attendant on bad measures among
a number, as on account of the uncertainty on whom it ought to fall;
and, secondly, the opportunity of discovering with facility and
clearness the misconduct of the persons they trust, in order either to
their removal from office or to their actual punishment in cases which
admit of it.

In England, the king is a perpetual magistrate; and it is a maxim which
has obtained for the sake of the pub lic peace, that he is
unaccountable for his administration, and his person sacred. Nothing,
therefore, can be wiser in that kingdom, than to annex to the king a
constitutional council, who may be responsible to the nation for the
advice they give. Without this, there would be no responsibility
whatever in the executive department an idea inadmissible in a free
government. But even there the king is not bound by the resolutions of
his council, though they are answerable for the advice they give. He is
the absolute master of his own conduct in the exercise of his office,
and may observe or disregard the counsel given to him at his sole
discretion.

But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the British
Constitution dictates the propriety of a council, not only ceases to
apply, but turns against the institution. In the monarchy of Great
Britain, it furnishes a substitute for the prohibited responsibility of
the chief magistrate, which serves in some degree as a hostage to the
national justice for his good behavior. In the American republic, it
would serve to destroy, or would greatly diminish, the intended and
necessary responsibility of the Chief Magistrate himself.

The idea of a council to the Executive, which has so generally obtained
in the State constitutions, has been derived from that maxim of
republican jealousy which considers power as safer in the hands of a
number of men than of a single man. If the maxim should be admitted to
be applicable to the case, I should contend that the advantage on that
side would not counterbalance the numerous disadvantages on the
opposite side. But I do not think the rule at all applicable to the
executive power. I clearly concur in opinion, in this particular, with
a writer whom the celebrated Junius pronounces to be “deep, solid, and
ingenious,” that “the executive power is more easily confined when it
is ONE”;[2] that it is far more safe there should be a single object
for the jealousy and watchfulness of the people; and, in a word, that
all multiplication of the Executive is rather dangerous than friendly
to liberty.

A little consideration will satisfy us, that the species of security
sought for in the multiplication of the Executive, is nattainable.
Numbers must be so great as to render combination difficult, or they
are rather a source of danger than of security. The united credit and
influence of several individuals must be more formidable to liberty,
than the credit and influence of either of them separately. When power,
therefore, is placed in the hands of so small a number of men, as to
admit of their interests and views being easily combined in a common
enterprise, by an artful leader, it becomes more liable to abuse, and
more dangerous when abused, than if it be lodged in the hands of one
man; who, from the very circumstance of his being alone, will be more
narrowly watched and more readily suspected, and who cannot unite so
great a mass of influence as when he is associated with others. The
Decemvirs of Rome, whose name denotes their number,[3] were more to be
dreaded in their usurpation than any ONE of them would have been. No
person would think of proposing an Executive much more numerous than
that body; from six to a dozen have been suggested for the number of
the council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to a
magistrate, who is himself responsible for what he does, are generally
nothing better than a clog upon his good intentions, are often the
instruments and accomplices of his bad and are almost always a cloak to
his faults.

I forbear to dwell upon the subject of expense; though it be evident
that if the council should be numerous enough to answer the principal
end aimed at by the institution, the salaries of the members, who must
be drawn from their homes to reside at the seat of government, would
form an item in the catalogue of public expenditures too serious to be
incurred for an object of equivocal utility. I will only add that,
prior to the appearance of the Constitution, I rarely met with an
intelligent man from any of the States, who did not admit, as the
result of experience, that the UNITY of the executive of this State was
one of the best of the distinguishing features of our constitution.

PUBLIUS.

 [1] New York has no council except for the single purpose of
 appointing to offices; New Jersey has a council whom the governor may
 consult. But I think, from the terms of the constitution, their
 resolutions do not bind him.

 [2] De Lolme.

 [3] Ten.

*There are two slightly different versions of No. 70 included here.




THE FEDERALIST.
No. LXX.

The Executive Department Further Considered

From the New York Packet.

Tuesday, March 18, 1788.

HAMILTON


To the People of the State of New York:

There is an idea, which is not without its advocates, that a vigorous
Executive is inconsistent with the genius of republican government. The
enlightened well-wishers to this species of government must at least
hope that the supposition is destitute of foundation; since they can
never admit its truth, without at the same time admitting the
condemnation of their own principles. Energy in the Executive is a
leading character in the definition of good government. It is essential
to the protection of the community against foreign attacks; it is not
less essential to the steady administration of the laws; to the
protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy. Every man the least conversant in
Roman story, knows how often that republic was obliged to take refuge
in the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government, as
against the invasions of external enemies who menaced the conquest and
destruction of Rome.

There can be no need, however, to multiply arguments or examples on
this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in theory,
must be, in practice, a bad government.

Taking it for granted, therefore, that all men of sense will agree in
the necessity of an energetic Executive, it will only remain to
inquire, what are the ingredients which constitute this energy? How far
can they be combined with those other ingredients which constitute
safety in the republican sense? And how far does this combination
characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the Executive are, first,
unity; secondly, duration; thirdly, an adequate provision for its
support; fourthly, competent powers.

The ingredients which constitute safety in the repub lican sense are,
first, a due dependence on the people, secondly, a due responsibility.

Those politicians and statesmen who have been the most celebrated for
the soundness of their principles and for the justice of their views,
have declared in favor of a single Executive and a numerous
legislature. They have with great propriety, considered energy as the
most necessary qualification of the former, and have regarded this as
most applicable to power in a single hand, while they have, with equal
propriety, considered the latter as best adapted to deliberation and
wisdom, and best calculated to conciliate the confidence of the people
and to secure their privileges and interests.

That unity is conducive to energy will not be disputed. Decision,
activity, secrecy, and despatch will generally characterize the
proceedings of one man in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in
two or more magistrates of equal dignity and authority; or by vesting
it ostensibly in one man, subject, in whole or in part, to the control
and co-operation of others, in the capacity of counsellors to him. Of
the first, the two Consuls of Rome may serve as an example; of the
last, we shall find examples in the constitutions of several of the
States. New York and New Jersey, if I recollect right, are the only
States which have intrusted the executive authority wholly to single
men.[1] Both these methods of destroying the unity of the Executive
have their partisans; but the votaries of an executive council are the
most numerous. They are both liable, if not to equal, to similar
objections, and may in most lights be examined in conjunction.

The experience of other nations will afford little instruction on this
head. As far, however, as it teaches any thing, it teaches us not to be
enamoured of plurality in the Executive. We have seen that the
Achaeans, on an experiment of two Praetors, were induced to abolish
one. The Roman history records many instances of mischiefs to the
republic from the dissensions between the Consuls, and between the
military Tribunes, who were at times substituted for the Consuls. But
it gives us no specimens of any peculiar advantages derived to the
state from the circumstance of the plurality of those magistrates. That
the dissensions between them were not more frequent or more fatal, is a
matter of astonishment, until we advert to the singular position in
which the republic was almost continually placed, and to the prudent
policy pointed out by the circumstances of the state, and pursued by
the Consuls, of making a division of the government between them. The
patricians engaged in a perpetual struggle with the plebeians for the
preservation of their ancient authorities and dignities; the Consuls,
who were generally chosen out of the former body, were commonly united
by the personal interest they had in the defense of the privileges of
their order. In addition to this motive of union, after the arms of the
republic had considerably expanded the bounds of its empire, it became
an established custom with the Consuls to divide the administration
between themselves by lot one of them remaining at Rome to govern the
city and its environs, the other taking the command in the more distant
provinces. This expedient must, no doubt, have had great influence in
preventing those collisions and rivalships which might otherwise have
embroiled the peace of the republic.

But quitting the dim light of historical research, attaching ourselves
purely to the dictates of reason and good se se, we shall discover much
greater cause to reject than to approve the idea of plurality in the
Executive, under any modification whatever.

Wherever two or more persons are engaged in any common enterprise or
pursuit, there is always danger of difference of opinion. If it be a
public trust or office, in which they are clothed with equal dignity
and authority, there is peculiar danger of personal emulation and even
animosity. From either, and especially from all these causes, the most
bitter dissensions are apt to spring. Whenever these happen, they
lessen the respectability, weaken the authority, and distract the plans
and operation of those whom they divide. If they should unfortunately
assail the supreme executive magistracy of a country, consisting of a
plurality of persons, they might impede or frustrate the most important
measures of the government, in the most critical emergencies of the
state. And what is still worse, they might split the community into the
most violent and irreconcilable factions, adhering differently to the
different individuals who composed the magistracy.

Men often oppose a thing, merely because they have had no agency in
planning it, or because it may have been planned by those whom they
dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves bound in
honor, and by all the motives of personal infallibility, to defeat the
success of what has been resolved upon contrary to their sentiments.
Men of upright, benevolent tempers have too many opportunities of
remarking, with horror, to what desperate lengths this disposition is
sometimes carried, and how often the great interests of society are
sacrificed to the vanity, to the conceit, and to the obstinacy of
individuals, who have credit enough to make their passions and their
caprices interesting to mankind. Perhaps the question now before the
public may, in its consequences, afford melancholy proofs of the
effects of this despicable frailty, or rather detestable vice, in the
human character.

Upon the principles of a free government, inconveniences from the
source just mentioned must necessarily be submitted to in the formation
of the legislature; but it is unnecessary, and therefore unwise, to
introduce them into the constitution of the Executive. It is here too
that they may be most pernicious. In the legislature, promptitude of
decision is oftener an evil than a benefit. The differences of opinion,
and the jarrings of parties in that department of the government,
though they may sometimes obstruct salutary plans, yet often promote
deliberation and circumspection, and serve to check excesses in the
majority. When a resolution too is once taken, the opposition must be
at an end. That resolution is a law, and resistance to it punishable.
But no favorable circumstances palliate or atone for the disadvantages
of dissension in the executive department. Here, they are pure and
unmixed. There is no point at which they cease to operate. They serve
to embarrass and weaken the execution of the plan or measure to which
they relate, from the first step to the final conclusion of it. They
constantly counteract those qualities in the Executive which are the
most necessary ingredients in its composition, vigor and expedition,
and this without anycounterbalancing good. In the conduct of war, in
which the energy of the Executive is the bulwark of the national
security, every thing would be to be apprehended from its plurality.

It must be confessed that these observations apply with principal
weight to the first case supposed that is, to a plurality of
magistrates of equal dignity and authority a scheme, the advocates for
which are not likely to form a numerous sect; but they apply, though
not with equal, yet with considerable weight to the project of a
council, whose concurrence is made constitutionally necessary to the
operations of the ostensible Executive. An artful cabal in that council
would be able to distract and to enervate the whole system of
administration. If no such cabal should exist, the mere diversity of
views and opinions would alone be sufficient to tincture the exercise
of the executive authority with a spirit of habitual feebleness and
dilatoriness.

But one of the weightiest objections to a plurality in the Executive,
and which lies as much against the last as the first plan, is, that it
tends to conceal faults and destroy responsibility.

Responsibility is of two kinds to censure and to punishment. The first
is the more important of the two, especially in an elective office.
Man, in public trust, will much oftener act in such a manner as to
render him unworthy of being any longer trusted, than in such a manner
as to make him obnoxious to legal punishment. But the multiplication of
the Executive adds to the difficulty of detection in either case. It
often becomes impossible, amidst mutual accusations, to determine on
whom the blame or the punishment of a pernicious measure, or series of
pernicious measures, ought really to fall. It is shifted from one to
another with so much dexterity, and under such plausible appearances,
that the public opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage or
misfortune are sometimes so complicated that, where there are a number
of actors who may have had different degrees and kinds of agency,
though we may clearly see upon the whole that there has been
mismanagement, yet it may be impracticable to pronounce to whose
account the evil which may have been incurred is truly chargeable.

“I was overruled by my council. The council were so divided in their
opinions that it was impossible to obtain any better resolution on the
point.” These and similar pretexts are constantly at hand, whether true
or false. And who is there that will either take the trouble or incur
the odium, of a strict scrunity into the secret springs of the
transaction? Should there be found a citizen zealous enough to
undertake the unpromising task, if there happen to be collusion between
the parties concerned, how easy it is to clothe the circumstances with
so much ambiguity, as to render it uncertain what was the precise
conduct of any of those parties?

In the single instance in which the governor of this State is coupled
with a council that is, in the appointment to offices, we have seen the
mischiefs of it in the view now under consideration. Scandalous
appointments to important offices have been made. Some cases, indeed,
have been so flagrant that ALL PARTIES have agreed in the impropriety
of the thing. When inquiry has been made, the blame has been laid by
the governor on the members of the council, who, on their part, have
charged it upon his nomination; while the people remain altogether at a
loss to determine, by whose influence their interests have been
committed to hands so unqualified and so manifestly improper. In
tenderness to individuals, I forbear to descend to particulars.

It is evident from these considerations, that the plurality of the
Executive tends to deprive the people of the two greatest securities
they can have for the faithful exercise of any delegated power, first,
the restraints of public opinion, which lose their efficacy, as well on
account of the division of the censure attendant on bad measures among
a number, as on account of the uncertainty on whom it ought to fall;
and, secondly, the opportunity of discovering with facility and
clearness the misconduct of the persons they trust, in order either to
their removal from office or to their actual punishment in cases which
admit of it.

In England, the king is a perpetual magistrate; and it is a maxim which
has obtained for the sake of the pub lic peace, that he is
unaccountable for his administration, and his person sacred. Nothing,
therefore, can be wiser in that kingdom, than to annex to the king a
constitutional council, who may be responsible to the nation for the
advice they give. Without this, there would be no responsibility
whatever in the executive department an idea inadmissible in a free
government. But even there the king is not bound by the resolutions of
his council, though they are answerable for the advice they give. He is
the absolute master of his own conduct in the exercise of his office,
and may observe or disregard the counsel given to him at his sole
discretion.

But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the British
Constitution dictates the propriety of a council, not only ceases to
apply, but turns against the institution. In the monarchy of Great
Britain, it furnishes a substitute for the prohibited responsibility of
the chief magistrate, which serves in some degree as a hostage to the
national justice for his good behavior. In the American republic, it
would serve to destroy, or would greatly diminish, the intended and
necessary responsibility of the Chief Magistrate himself.

The idea of a council to the Executive, which has so generally obtained
in the State constitutions, has been derived from that maxim of
republican jealousy which considers power as safer in the hands of a
number of men than of a single man. If the maxim should be admitted to
be applicable to the case, I should contend that the advantage on that
side would not counterbalance the numerous disadvantages on the
opposite side. But I do not think the rule at all applicable to the
executive power. I clearly concur in opinion, in this particular, with
a writer whom the celebrated Junius pronounces to be “deep, solid, and
ingenious,” that “the executive power is more easily confined when it
is ONE”;[2] that it is far more safe there should be a single object
for the jealousy and watchfulness of the people; and, in a word, that
all multiplication of the Executive is rather dangerous than friendly
to liberty.

A little consideration will satisfy us, that the species of security
sought for in the multiplication of the Executive, is nattainable.
Numbers must be so great as to render combination difficult, or they
are rather a source of danger than of security. The united credit and
influence of several individuals must be more formidable to liberty,
than the credit and influence of either of them separately. When power,
therefore, is placed in the hands of so small a number of men, as to
admit of their interests and views being easily combined in a common
enterprise, by an artful leader, it becomes more liable to abuse, and
more dangerous when abused, than if it be lodged in the hands of one
man; who, from the very circumstance of his being alone, will be more
narrowly watched and more readily suspected, and who cannot unite so
great a mass of influence as when he is associated with others. The
Decemvirs of Rome, whose name denotes their number,[3] were more to be
dreaded in their usurpation than any ONE of them would have been. No
person would think of proposing an Executive much more numerous than
that body; from six to a dozen have been suggested for the number of
the council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to a
magistrate, who is himself responsible for what he does, are generally
nothing better than a clog upon his good intentions, are often the
instruments and accomplices of his bad and are almost always a cloak to
his faults.

I forbear to dwell upon the subject of expense; though it be evident
that if the council should be numerous enough to answer the principal
end aimed at by the institution, the salaries of the members, who must
be drawn from their homes to reside at the seat of government, would
form an item in the catalogue of public expenditures too serious to be
incurred for an object of equivocal utility. I will only add that,
prior to the appearance of the Constitution, I rarely met with an
intelligent man from any of the States, who did not admit, as the
result of experience, that the UNITY of the executive of this State was
one of the best of the distinguishing features of our constitution.

PUBLIUS.

 [1] New York has no council except for the single purpose of
 appointing to offices; New Jersey has a council whom the governor may
 consult. But I think, from the terms of the constitution, their
 resolutions do not bind him.

 [2] De Lolme.

 [3] Ten.




THE FEDERALIST.
No. LXXI.

The Duration in Office of the Executive

From the New York Packet.

Tuesday, March 18, 1788.

HAMILTON


To the People of the State of New York:

Duration in office has been mentioned as the second requisite to the
energy of the Executive authority. This has relation to two objects: to
the personal firmness of the executive magistrate, in the employment of
his constitutional powers; and to the stability of the system of
administration which may have been adopted under his auspices. With
regard to the first, it must be evident, that the longer the duration
in office, the greater will be the probability of obtaining so
important an advantage. It is a general principle of human nature, that
a man will be interested in whatever he possesses, in proportion to the
firmness or precariousness of the tenure by which he holds it; will be
less attached to what he holds by a momentary or uncertain title, than
to what he enjoys by a durable or certain title; and, of course, will
be willing to risk more for the sake of the one, than for the sake of
the other. This remark is not less applicable to a political privilege,
or honor, or trust, than to any article of ordinary property. The
inference from it is, that a man acting in the capacity of chief
magistrate, under a consciousness that in a very short time he MUST lay
down his office, will be apt to feel himself too little interested in
it to hazard any material censure or perplexity, from the independent
exertion of his powers, or from encountering the ill-humors, however
transient, which may happen to prevail, either in a considerable part
of the society itself, or even in a predominant faction in the
legislative body. If the case should only be, that he MIGHT lay it
down, unless continued by a new choice, and if he should be desirous of
being continued, his wishes, conspiring with his fears, would tend
still more powerfully to corrupt his integrity, or debase his
fortitude. In either case, feebleness and irresolution must be the
characteristics of the station.

There are some who would be inclined to regard the servile pliancy of
the Executive to a prevailing current, either in the community or in
the legislature, as its best recommendation. But such men entertain
very crude notions, as well of the purposes for which government was
instituted, as of the true means by which the public happiness may be
promoted. The republican principle demands that the deliberate sense of
the community should govern the conduct of those to whom they intrust
the management of their affairs; but it does not require an unqualified
complaisance to every sudden breeze of passion, or to every transient
impulse which the people may receive from the arts of men, who flatter
their prejudices to betray their interests. It is a just observation,
that the people commonly INTEND the PUBLIC GOOD. This often applies to
their very errors. But their good sense would despise the adulator who
should pretend that they always REASON RIGHT about the MEANS of
promoting it. They know from experience that they sometimes err; and
the wonder is that they so seldom err as they do, beset, as they
continually are, by the wiles of parasites and sycophants, by the
snares of the ambitious, the avaricious, the desperate, by the
artifices of men who possess their confidence more than they deserve
it, and of those who seek to possess rather than to deserve it. When
occasions present themselves, in which the interests of the people are
at variance with their inclinations, it is the duty of the persons whom
they have appointed to be the guardians of those interests, to
withstand the temporary delusion, in order to give them time and
opportunity for more cool and sedate reflection. Instances might be
cited in which a conduct of this kind has saved the people from very
fatal consequences of their own mistakes, and has procured lasting
monuments of their gratitude to the men who had courage and magnanimity
enough to serve them at the peril of their displeasure.

But however inclined we might be to insist upon an unbounded
complaisance in the Executive to the inclinations of the people, we can
with no propriety contend for a like complaisance to the humors of the
legislature. The latter may sometimes stand in opposition to the
former, and at other times the people may be entirely neutral. In
either supposition, it is certainly desirable that the Executive should
be in a situation to dare to act his own opinion with vigor and
decision.

The same rule which teaches the propriety of a partition between the
various branches of power, teaches us likewise that this partition
ought to be so contrived as to render the one independent of the other.
To what purpose separate the executive or the judiciary from the
legislative, if both the executive and the judiciary are so constituted
as to be at the absolute devotion of the legislative? Such a separation
must be merely nominal, and incapable of producing the ends for which
it was established. It is one thing to be subordinate to the laws, and
another to be dependent on the legislative body. The first comports
with, the last violates, the fundamental principles of good government;
and, whatever may be the forms of the Constitution, unites all power in
the same hands. The tendency of the legislative authority to absorb
every other, has been fully displayed and illustrated by examples in
some preceding numbers. In governments purely republican, this tendency
is almost irresistible. The representatives of the people, in a popular
assembly, seem sometimes to fancy that they are the people themselves,
and betray strong symptoms of impatience and disgust at the least sign
of opposition from any other quarter; as if the exercise of its rights,
by either the executive or judiciary, were a breach of their privilege
and an outrage to their dignity. They often appear disposed to exert an
imperious control over the other departments; and as they commonly have
the people on their side, they always act with such momentum as to make
it very difficult for the other members of the government to maintain
the balance of the Constitution.

It may perhaps be asked, how the shortness of the duration in office
can affect the independence of the Executive on the legislature, unless
the one were possessed of the power of appointing or displacing the
other. One answer to this inquiry may be drawn from the principle
already remarked that is, from the slender interest a man is apt to
take in a short-lived advantage, and the little inducement it affords
him to expose himself, on account of it, to any considerable
inconvenience or hazard. Another answer, perhaps more obvious, though
not more conclusive, will result from the consideration of the
influence of the legislative body over the people; which might be
employed to prevent the re-election of a man who, by an upright
resistance to any sinister project of that body, should have made
himself obnoxious to its resentment.

It may be asked also, whether a duration of four years would answer the
end proposed; and if it would not, whether a less period, which would
at least be recommended by greater security against ambitious designs,
would not, for that reason, be preferable to a longer period, which
was, at the same time, too short for the purpose of inspiring the
desired firmness and independence of the magistrate.

It cannot be affirmed, that a duration of four years, or any other
limited duration, would completely answer the end proposed; but it
would contribute towards it in a degree which would have a material
influence upon the spirit and character of the government. Between the
commencement and termination of such a period, there would always be a
considerable interval, in which the prospect of annihilation would be
sufficiently remote, not to have an improper effect upon the conduct of
a man indued with a tolerable portion of fortitude; and in which he
might reasonably promise himself, that there would be time enough
before it arrived, to make the community sensible of the propriety of
the measures he might incline to pursue. Though it be probable that, as
he approached the moment when the public were, by a new election, to
signify their sense of his conduct, his confidence, and with it his
firmness, would decline; yet both the one and the other would derive
support from the opportunities which his previous continuance in the
station had afforded him, of establishing himself in the esteem and
good-will of his constituents. He might, then, hazard with safety, in
proportion to the proofs he had given of his wisdom and integrity, and
to the title he had acquired to the respect and attachment of his
fellow-citizens. As, on the one hand, a duration of four years will
contribute to the firmness of the Executive in a sufficient degree to
render it a very valuable ingredient in the composition; so, on the
other, it is not enough to justify any alarm for the public liberty. If
a British House of Commons, from the most feeble beginnings, FROM THE
MERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX,
have, by rapid strides, reduced the prerogatives of the crown and the
privileges of the nobility within the limits they conceived to be
compatible with the principles of a free government, while they raised
themselves to the rank and consequence of a coequal branch of the
legislature; if they have been able, in one instance, to abolish both
the royalty and the aristocracy, and to overturn all the ancient
establishments, as well in the Church as State; if they have been able,
on a recent occasion, to make the monarch tremble at the prospect of an
innovation[1] attempted by them, what would be to be feared from an
elective magistrate of four years’ duration, with the confined
authorities of a President of the United States? What, but that he
might be unequal to the task which the Constitution assigns him? I
shall only add, that if his duration be such as to leave a doubt of his
firmness, that doubt is inconsistent with a jealousy of his
encroachments.

PUBLIUS.

 [1] This was the case with respect to Mr. Fox’s India bill, which was
 carried in the House of Commons, and rejected in the House of Lords,
 to the entire satisfaction, as it is said, of the people.




THE FEDERALIST.
No. LXXII.

The Same Subject Continued, and Re-Eligibility of the Executive
Considered

From the New York Packet.

Friday, March 21, 1788.

HAMILTON


To the People of the State of New York:

The administration of government, in its largest sense, comprehends all
the operations of the body politic, whether legislative, executive, or
judiciary; but in its most usual, and perhaps its most precise
signification. It is limited to executive details, and falls peculiarly
within the province of the executive department. The actual conduct of
foreign negotiations, the preparatory plans of finance, the application
and disbursement of the public moneys in conformity to the general
appropriations of the legislature, the arrangement of the army and
navy, the directions of the operations of war, these, and other matters
of a like nature, constitute what seems to be most properly understood
by the administration of government. The persons, therefore, to whose
immediate management these different matters are committed, ought to be
considered as the assistants or deputies of the chief magistrate, and
on this account, they ought to derive their offices from his
appointment, at least from his nomination, and ought to be subject to
his superintendence. This view of the subject will at once suggest to
us the intimate connection between the duration of the executive
magistrate in office and the stability of the system of administration.
To reverse and undo what has been done by a predecessor, is very often
considered by a successor as the best proof he can give of his own
capacity and desert; and in addition to this propensity, where the
alteration has been the result of public choice, the person substituted
is warranted in supposing that the dismission of his predecessor has
proceeded from a dislike to his measures; and that the less he
resembles him, the more he will recommend himself to the favor of his
constituents. These considerations, and the influence of personal
confidences and attachments, would be likely to induce every new
President to promote a change of men to fill the subordinate stations;
and these causes together could not fail to occasion a disgraceful and
ruinous mutability in the administration of the government.

With a positive duration of considerable extent, I connect the
circumstance of re-eligibility. The first is necessary to give to the
officer himself the inclination and the resolution to act his part
well, and to the community time and leisure to observe the tendency of
his measures, and thence to form an experimental estimate of their
merits. The last is necessary to enable the people, when they see
reason to approve of his conduct, to continue him in his station, in
order to prolong the utility of his talents and virtues, and to secure
to the government the advantage of permanency in a wise system of
administration.

Nothing appears more plausible at first sight, nor more ill-founded
upon close inspection, than a scheme which in relation to the present
point has had some respectable advocates, I mean that of continuing the
chief magistrate in office for a certain time, and then excluding him
from it, either for a limited period or forever after. This exclusion,
whether temporary or perpetual, would have nearly the same effects, and
these effects would be for the most part rather pernicious than
salutary.

One ill effect of the exclusion would be a diminution of the
inducements to good behavior. There are few men who would not feel much
less zeal in the discharge of a duty when they were conscious that the
advantages of the station with which it was connected must be
relinquished at a determinate period, than when they were permitted to
entertain a hope of OBTAINING, by MERITING, a continuance of them. This
position will not be disputed so long as it is admitted that the desire
of reward is one of the strongest incentives of human conduct; or that
the best security for the fidelity of mankind is to make their
interests coincide with their duty. Even the love of fame, the ruling
passion of the noblest minds, which would prompt a man to plan and
undertake extensive and arduous enterprises for the public benefit,
requiring considerable time to mature and perfect them, if he could
flatter himself with the prospect of being allowed to finish what he
had begun, would, on the contrary, deter him from the undertaking, when
he foresaw that he must quit the scene before he could accomplish the
work, and must commit that, together with his own reputation, to hands
which might be unequal or unfriendly to the task. The most to be
expected from the generality of men, in such a situation, is the
negative merit of not doing harm, instead of the positive merit of
doing good.

Another ill effect of the exclusion would be the temptation to sordid
views, to peculation, and, in some instances, to usurpation. An
avaricious man, who might happen to fill the office, looking forward to
a time when he must at all events yield up the emoluments he enjoyed,
would feel a propensity, not easy to be resisted by such a man, to make
the best use of the opportunity he enjoyed while it lasted, and might
not scruple to have recourse to the most corrupt expedients to make the
harvest as abundant as it was transitory; though the same man,
probably, with a different prospect before him, might content himself
with the regular perquisites of his situation, and might even be
unwilling to risk the consequences of an abuse of his opportunities.
His avarice might be a guard upon his avarice. Add to this that the
same man might be vain or ambitious, as well as avaricious. And if he
could expect to prolong his honors by his good conduct, he might
hesitate to sacrifice his appetite for them to his appetite for gain.
But with the prospect before him of approaching an inevitable
annihilation, his avarice would be likely to get the victory over his
caution, his vanity, or his ambition.

An ambitious man, too, when he found himself seated on the summit of
his country’s honors, when he looked forward to the time at which he
must descend from the exalted eminence for ever, and reflected that no
exertion of merit on his part could save him from the unwelcome
reverse; such a man, in such a situation, would be much more violently
tempted to embrace a favorable conjuncture for attempting the
prolongation of his power, at every personal hazard, than if he had the
probability of answering the same end by doing his duty.

Would it promote the peace of the community, or the stability of the
government to have half a dozen men who had had credit enough to be
raised to the seat of the supreme magistracy, wandering among the
people like discontented ghosts, and sighing for a place which they
were destined never more to possess?

A third ill effect of the exclusion would be, the depriving the
community of the advantage of the experience gained by the chief
magistrate in the exercise of his office. That experience is the parent
of wisdom, is an adage the truth of which is recognized by the wisest
as well as the simplest of mankind. What more desirable or more
essential than this quality in the governors of nations? Where more
desirable or more essential than in the first magistrate of a nation?
Can it be wise to put this desirable and essential quality under the
ban of the Constitution, and to declare that the moment it is acquired,
its possessor shall be compelled to abandon the station in which it was
acquired, and to which it is adapted? This, nevertheless, is the
precise import of all those regulations which exclude men from serving
their country, by the choice of their fellowcitizens, after they have
by a course of service fitted themselves for doing it with a greater
degree of utility.

A fourth ill effect of the exclusion would be the banishing men from
stations in which, in certain emergencies of the state, their presence
might be of the greatest moment to the public interest or safety. There
is no nation which has not, at one period or another, experienced an
absolute necessity of the services of particular men in particular
situations; perhaps it would not be too strong to say, to the
preservation of its political existence. How unwise, therefore, must be
every such self-denying ordinance as serves to prohibit a nation from
making use of its own citizens in the manner best suited to its
exigencies and circumstances! Without supposing the personal
essentiality of the man, it is evident that a change of the chief
magistrate, at the breaking out of a war, or at any similar crisis, for
another, even of equal merit, would at all times be detrimental to the
community, inasmuch as it would substitute inexperience to experience,
and would tend to unhinge and set afloat the already settled train of
the administration.

A fifth ill effect of the exclusion would be, that it would operate as
a constitutional interdiction of stability in the administration. By
NECESSITATING a change of men, in the first office of the nation, it
would necessitate a mutability of measures. It is not generally to be
expected, that men will vary and measures remain uniform. The contrary
is the usual course of things. And we need not be apprehensive that
there will be too much stability, while there is even the option of
changing; nor need we desire to prohibit the people from continuing
their confidence where they think it may be safely placed, and where,
by constancy on their part, they may obviate the fatal inconveniences
of fluctuating councils and a variable policy.

These are some of the disadvantages which would flow from the principle
of exclusion. They apply most forcibly to the scheme of a perpetual
exclusion; but when we consider that even a partial exclusion would
always render the readmission of the person a remote and precarious
object, the observations which have been made will apply nearly as
fully to one case as to the other.

What are the advantages promised to counterbalance these disadvantages?
They are represented to be: 1st, greater independence in the
magistrate; 2d, greater security to the people. Unless the exclusion be
perpetual, there will be no pretense to infer the first advantage. But
even in that case, may he have no object beyond his present station, to
which he may sacrifice his independence? May he have no connections, no
friends, for whom he may sacrifice it? May he not be less willing by a
firm conduct, to make personal enemies, when he acts under the
impression that a time is fast approaching, on the arrival of which he
not only MAY, but MUST, be exposed to their resentments, upon an equal,
perhaps upon an inferior, footing? It is not an easy point to determine
whether his independence would be most promoted or impaired by such an
arrangement.

As to the second supposed advantage, there is still greater reason to
entertain doubts concerning it. If the exclusion were to be perpetual,
a man of irregular ambition, of whom alone there could be reason in any
case to entertain apprehension, would, with infinite reluctance, yield
to the necessity of taking his leave forever of a post in which his
passion for power and pre-eminence had acquired the force of habit. And
if he had been fortunate or adroit enough to conciliate the good-will
of the people, he might induce them to consider as a very odious and
unjustifiable restraint upon themselves, a provision which was
calculated to debar them of the right of giving a fresh proof of their
attachment to a favorite. There may be conceived circumstances in which
this disgust of the people, seconding the thwarted ambition of such a
favorite, might occasion greater danger to liberty, than could ever
reasonably be dreaded from the possibility of a perpetuation in office,
by the voluntary suffrages of the community, exercising a
constitutional privilege.

There is an excess of refinement in the idea of disabling the people to
continue in office men who had entitled themselves, in their opinion,
to approbation and confidence; the advantages of which are at best
speculative and equivocal, and are overbalanced by disadvantages far
more certain and decisive.

PUBLIUS.




THE FEDERALIST.
No. LXXIII.

The Provision For The Support of the Executive, and the Veto Power

From the New York Packet.

Friday, March 21, 1788.

HAMILTON


To the People of the State of New York:

The third ingredient towards constituting the vigor of the executive
authority, is an adequate provision for its support. It is evident
that, without proper attention to this article, the separation of the
executive from the legislative department would be merely nominal and
nugatory. The legislature, with a discretionary power over the salary
and emoluments of the Chief Magistrate, could render him as obsequious
to their will as they might think proper to make him. They might, in
most cases, either reduce him by famine, or tempt him by largesses, to
surrender at discretion his judgment to their inclinations. These
expressions, taken in all the latitude of the terms, would no doubt
convey more than is intended. There are men who could neither be
distressed nor won into a sacrifice of their duty; but this stern
virtue is the growth of few soils; and in the main it will be found
that a power over a man’s support is a power over his will. If it were
necessary to confirm so plain a truth by facts, examples would not be
wanting, even in this country, of the intimidation or seduction of the
Executive by the terrors or allurements of the pecuniary arrangements
of the legislative body.

It is not easy, therefore, to commend too highly the judicious
attention which has been paid to this subject in the proposed
Constitution. It is there provided that “The President of the United
States shall, at stated times, receive for his services a compensation
WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING THE PERIOD FOR
WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT RECEIVE WITHIN THAT
PERIOD ANY OTHER EMOLUMENT from the United States, or any of them.” It
is impossible to imagine any provision which would have been more
eligible than this. The legislature, on the appointment of a President,
is once for all to declare what shall be the compensation for his
services during the time for which he shall have been elected. This
done, they will have no power to alter it, either by increase or
diminution, till a new period of service by a new election commences.
They can neither weaken his fortitude by operating on his necessities,
nor corrupt his integrity by appealing to his avarice. Neither the
Union, nor any of its members, will be at liberty to give, nor will he
be at liberty to receive, any other emolument than that which may have
been determined by the first act. He can, of course, have no pecuniary
inducement to renounce or desert the independence intended for him by
the Constitution.

The last of the requisites to energy, which have been enumerated, are
competent powers. Let us proceed to consider those which are proposed
to be vested in the President of the United States.

The first thing that offers itself to our observation, is the qualified
negative of the President upon the acts or resolutions of the two
houses of the legislature; or, in other words, his power of returning
all bills with objections, to have the effect of preventing their
becoming laws, unless they should afterwards be ratified by two thirds
of each of the component members of the legislative body.

The propensity of the legislative department to intrude upon the
rights, and to absorb the powers, of the other departments, has been
already suggested and repeated; the insufficiency of a mere parchment
delineation of the boundaries of each, has also been remarked upon; and
the necessity of furnishing each with constitutional arms for its own
defense, has been inferred and proved. From these clear and indubitable
principles results the propriety of a negative, either absolute or
qualified, in the Executive, upon the acts of the legislative branches.
Without the one or the other, the former would be absolutely unable to
defend himself against the depredations of the latter. He might
gradually be stripped of his authorities by successive resolutions, or
annihilated by a single vote. And in the one mode or the other, the
legislative and executive powers might speedily come to be blended in
the same hands. If even no propensity had ever discovered itself in the
legislative body to invade the rights of the Executive, the rules of
just reasoning and theoretic propriety would of themselves teach us,
that the one ought not to be left to the mercy of the other, but ought
to possess a constitutional and effectual power of selfdefense.

But the power in question has a further use. It not only serves as a
shield to the Executive, but it furnishes an additional security
against the enaction of improper laws. It establishes a salutary check
upon the legislative body, calculated to guard the community against
the effects of faction, precipitancy, or of any impulse unfriendly to
the public good, which may happen to influence a majority of that body.

The propriety of a negative has, upon some occasions, been combated by
an observation, that it was not to be presumed a single man would
possess more virtue and wisdom than a number of men; and that unless
this presumption should be entertained, it would be improper to give
the executive magistrate any species of control over the legislative
body.

But this observation, when examined, will appear rather specious than
solid. The propriety of the thing does not turn upon the supposition of
superior wisdom or virtue in the Executive, but upon the supposition
that the legislature will not be infallible; that the love of power may
sometimes betray it into a disposition to encroach upon the rights of
other members of the government; that a spirit of faction may sometimes
pervert its deliberations; that impressions of the moment may sometimes
hurry it into measures which itself, on maturer reflexion, would
condemn. The primary inducement to conferring the power in question
upon the Executive is, to enable him to defend himself; the secondary
one is to increase the chances in favor of the community against the
passing of bad laws, through haste, inadvertence, or design. The
oftener the measure is brought under examination, the greater the
diversity in the situations of those who are to examine it, the less
must be the danger of those errors which flow from want of due
deliberation, or of those missteps which proceed from the contagion of
some common passion or interest. It is far less probable, that culpable
views of any kind should infect all the parts of the government at the
same moment and in relation to the same object, than that they should
by turns govern and mislead every one of them.

It may perhaps be said that the power of preventing bad laws includes
that of preventing good ones; and may be used to the one purpose as
well as to the other. But this objection will have little weight with
those who can properly estimate the mischiefs of that inconstancy and
mutability in the laws, which form the greatest blemish in the
character and genius of our governments. They will consider every
institution calculated to restrain the excess of law-making, and to
keep things in the same state in which they happen to be at any given
period, as much more likely to do good than harm; because it is
favorable to greater stability in the system of legislation. The injury
which may possibly be done by defeating a few good laws, will be amply
compensated by the advantage of preventing a number of bad ones.

Nor is this all. The superior weight and influence of the legislative
body in a free government, and the hazard to the Executive in a trial
of strength with that body, afford a satisfactory security that the
negative would generally be employed with great caution; and there
would oftener be room for a charge of timidity than of rashness in the
exercise of it. A king of Great Britain, with all his train of
sovereign attributes, and with all the influence he draws from a
thousand sources, would, at this day, hesitate to put a negative upon
the joint resolutions of the two houses of Parliament. He would not
fail to exert the utmost resources of that influence to strangle a
measure disagreeable to him, in its progress to the throne, to avoid
being reduced to the dilemma of permitting it to take effect, or of
risking the displeasure of the nation by an opposition to the sense of
the legislative body. Nor is it probable, that he would ultimately
venture to exert his prerogatives, but in a case of manifest propriety,
or extreme necessity. All well-informed men in that kingdom will accede
to the justness of this remark. A very considerable period has elapsed
since the negative of the crown has been exercised.

If a magistrate so powerful and so well fortified as a British monarch,
would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected in a
President of the United States, clothed for the short period of four
years with the executive authority of a government wholly and purely
republican?

It is evident that there would be greater danger of his not using his
power when necessary, than of his using it too often, or too much. An
argument, indeed, against its expediency, has been drawn from this very
source. It has been represented, on this account, as a power odious in
appearance, useless in practice. But it will not follow, that because
it might be rarely exercised, it would never be exercised. In the case
for which it is chiefly designed, that of an immediate attack upon the
constitutional rights of the Executive, or in a case in which the
public good was evidently and palpably sacrificed, a man of tolerable
firmness would avail himself of his constitutional means of defense,
and would listen to the admonitions of duty and responsibility. In the
former supposition, his fortitude would be stimulated by his immediate
interest in the power of his office; in the latter, by the probability
of the sanction of his constituents, who, though they would naturally
incline to the legislative body in a doubtful case, would hardly suffer
their partiality to delude them in a very plain case. I speak now with
an eye to a magistrate possessing only a common share of firmness.
There are men who, under any circumstances, will have the courage to do
their duty at every hazard.

But the convention have pursued a mean in this business, which will
both facilitate the exercise of the power vested in this respect in the
executive magistrate, and make its efficacy to depend on the sense of a
considerable part of the legislative body. Instead of an absolute
negative, it is proposed to give the Executive the qualified negative
already described. This is a power which would be much more readily
exercised than the other. A man who might be afraid to defeat a law by
his single VETO, might not scruple to return it for reconsideration;
subject to being finally rejected only in the event of more than one
third of each house concurring in the sufficiency of his objections. He
would be encouraged by the reflection, that if his opposition should
prevail, it would embark in it a very respectable proportion of the
legislative body, whose influence would be united with his in
supporting the propriety of his conduct in the public opinion. A direct
and categorical negative has something in the appearance of it more
harsh, and more apt to irritate, than the mere suggestion of
argumentative objections to be approved or disapproved by those to whom
they are addressed. In proportion as it would be less apt to offend, it
would be more apt to be exercised; and for this very reason, it may in
practice be found more effectual. It is to be hoped that it will not
often happen that improper views will govern so large a proportion as
two thirds of both branches of the legislature at the same time; and
this, too, in spite of the counterposing weight of the Executive. It is
at any rate far less probable that this should be the case, than that
such views should taint the resolutions and conduct of a bare majority.
A power of this nature in the Executive, will often have a silent and
unperceived, though forcible, operation. When men, engaged in
unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by the
bare apprehension of opposition, from doing what they would with
eagerness rush into, if no such external impediments were to be feared.

This qualified negative, as has been elsewhere remarked, is in this
State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It has
been freely employed upon a variety of occasions, and frequently with
success. And its utility has become so apparent, that persons who, in
compiling the Constitution, were violent opposers of it, have from
experience become its declared admirers.[1]

I have in another place remarked, that the convention, in the formation
of this part of their plan, had departed from the model of the
constitution of this State, in favor of that of Massachusetts. Two
strong reasons may be imagined for this preference. One is that the
judges, who are to be the interpreters of the law, might receive an
improper bias, from having given a previous opinion in their
revisionary capacities; the other is that by being often associated
with the Executive, they might be induced to embark too far in the
political views of that magistrate, and thus a dangerous combination
might by degrees be cemented between the executive and judiciary
departments. It is impossible to keep the judges too distinct from
every other avocation than that of expounding the laws. It is
peculiarly dangerous to place them in a situation to be either
corrupted or influenced by the Executive.

PUBLIUS.

 [1] Mr. Abraham Yates, a warm opponent of the plan of the convention
 is of this number.




THE FEDERALIST.
No. LXXIV.

The Command of the Military and Naval Forces, and the Pardoning Power
of the Executive

From the New York Packet.

Tuesday, March 25, 1788.

HAMILTON


To the People of the State of New York:

The President of the United States is to be “commander-in-chief of the
army and navy of the United States, and of the militia of the several
States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The
propriety of this provision is so evident in itself, and it is, at the
same time, so consonant to the precedents of the State constitutions in
general, that little need be said to explain or enforce it. Even those
of them which have, in other respects, coupled the chief magistrate
with a council, have for the most part concentrated the military
authority in him alone. Of all the cares or concerns of government, the
direction of war most peculiarly demands those qualities which
distinguish the exercise of power by a single hand. The direction of
war implies the direction of the common strength; and the power of
directing and employing the common strength, forms a usual and
essential part in the definition of the executive authority.

“The President may require the opinion, in writing, of the principal
officer in each of the executive departments, upon any subject relating
to the duties of their respective officers.” This I consider as a mere
redundancy in the plan, as the right for which it provides would result
of itself from the office.

He is also to be authorized to grant “reprieves and pardons for
offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.”
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. The criminal code of every country partakes so much of
necessary severity, that without an easy access to exceptions in favor
of unfortunate guilt, justice would wear a countenance too sanguinary
and cruel. As the sense of responsibility is always strongest, in
proportion as it is undivided, it may be inferred that a single man
would be most ready to attend to the force of those motives which might
plead for a mitigation of the rigor of the law, and least apt to yield
to considerations which were calculated to shelter a fit object of its
vengeance. The reflection that the fate of a fellow-creature depended
on his sole fiat, would naturally inspire scrupulousness and caution;
the dread of being accused of weakness or connivance, would beget equal
circumspection, though of a different kind. On the other hand, as men
generally derive confidence from their numbers, they might often
encourage each other in an act of obduracy, and might be less sensible
to the apprehension of suspicion or censure for an injudicious or
affected clemency. On these accounts, one man appears to be a more
eligible dispenser of the mercy of government, than a body of men.

The expediency of vesting the power of pardoning in the President has,
if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a part
of it. As treason is a crime levelled at the immediate being of the
society, when the laws have once ascertained the guilt of the offender,
there seems a fitness in referring the expediency of an act of mercy
towards him to the judgment of the legislature. And this ought the
rather to be the case, as the supposition of the connivance of the
Chief Magistrate ought not to be entirely excluded. But there are also
strong objections to such a plan. It is not to be doubted, that a
single man of prudence and good sense is better fitted, in delicate
conjunctures, to balance the motives which may plead for and against
the remission of the punishment, than any numerous body whatever. It
deserves particular attention, that treason will often be connected
with seditions which embrace a large proportion of the community; as
lately happened in Massachusetts. In every such case, we might expect
to see the representation of the people tainted with the same spirit
which had given birth to the offense. And when parties were pretty
equally matched, the secret sympathy of the friends and favorers of the
condemned person, availing itself of the good-nature and weakness of
others, might frequently bestow impunity where the terror of an example
was necessary. On the other hand, when the sedition had proceeded from
causes which had inflamed the resentments of the major party, they
might often be found obstinate and inexorable, when policy demanded a
conduct of forbearance and clemency. But the principal argument for
reposing the power of pardoning in this case to the Chief Magistrate is
this: in seasons of insurrection or rebellion, there are often critical
moments, when a welltimed offer of pardon to the insurgents or rebels
may restore the tranquillity of the commonwealth; and which, if
suffered to pass unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the measure,
would frequently be the occasion of letting slip the golden
opportunity. The loss of a week, a day, an hour, may sometimes be
fatal. If it should be observed, that a discretionary power, with a
view to such contingencies, might be occasionally conferred upon the
President, it may be answered in the first place, that it is
questionable, whether, in a limited Constitution, that power could be
delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the prospect
of impunity. A proceeding of this kind, out of the usual course, would
be likely to be construed into an argument of timidity or of weakness,
and would have a tendency to embolden guilt.

PUBLIUS.




THE FEDERALIST.
No. LXXV.

The Treaty-Making Power of the Executive

For the Independent Journal.

HAMILTON


To the People of the State of New York:

The President is to have power, “by and with the advice and consent of
the Senate, to make treaties, provided two thirds of the senators
present concur.”

Though this provision has been assailed, on different grounds, with no
small degree of vehemence, I scruple not to declare my firm persuasion,
that it is one of the best digested and most unexceptionable parts of
the plan. One ground of objection is the trite topic of the
intermixture of powers; some contending that the President ought alone
to possess the power of making treaties; others, that it ought to have
been exclusively deposited in the Senate. Another source of objection
is derived from the small number of persons by whom a treaty may be
made. Of those who espouse this objection, a part are of opinion that
the House of Representatives ought to have been associated in the
business, while another part seem to think that nothing more was
necessary than to have substituted two thirds of ALL the members of the
Senate, to two thirds of the members PRESENT. As I flatter myself the
observations made in a preceding number upon this part of the plan must
have sufficed to place it, to a discerning eye, in a very favorable
light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections which
have been just stated.

With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of that
rule. I venture to add, that the particular nature of the power of
making treaties indicates a peculiar propriety in that union. Though
several writers on the subject of government place that power in the
class of executive authorities, yet this is evidently an arbitrary
disposition; for if we attend carefully to its operation, it will be
found to partake more of the legislative than of the executive
character, though it does not seem strictly to fall within the
definition of either of them. The essence of the legislative authority
is to enact laws, or, in other words, to prescribe rules for the
regulation of the society; while the execution of the laws, and the
employment of the common strength, either for this purpose or for the
common defense, seem to comprise all the functions of the executive
magistrate. The power of making treaties is, plainly, neither the one
nor the other. It relates neither to the execution of the subsisting
laws, nor to the enaction of new ones; and still less to an exertion of
the common strength. Its objects are CONTRACTS with foreign nations,
which have the force of law, but derive it from the obligations of good
faith. They are not rules prescribed by the sovereign to the subject,
but agreements between sovereign and sovereign. The power in question
seems therefore to form a distinct department, and to belong, properly,
neither to the legislative nor to the executive. The qualities
elsewhere detailed as indispensable in the management of foreign
negotiations, point out the Executive as the most fit agent in those
transactions; while the vast importance of the trust, and the operation
of treaties as laws, plead strongly for the participation of the whole
or a portion of the legislative body in the office of making them.

However proper or safe it may be in governments where the executive
magistrate is an hereditary monarch, to commit to him the entire power
of making treaties, it would be utterly unsafe and improper to intrust
that power to an elective magistrate of four years’ duration. It has
been remarked, upon another occasion, and the remark is unquestionably
just, that an hereditary monarch, though often the oppressor of his
people, has personally too much stake in the government to be in any
material danger of being corrupted by foreign powers. But a man raised
from the station of a private citizen to the rank of chief magistrate,
possessed of a moderate or slender fortune, and looking forward to a
period not very remote when he may probably be obliged to return to the
station from which he was taken, might sometimes be under temptations
to sacrifice his duty to his interest, which it would require
superlative virtue to withstand. An avaricious man might be tempted to
betray the interests of the state to the acquisition of wealth. An
ambitious man might make his own aggrandizement, by the aid of a
foreign power, the price of his treachery to his constituents. The
history of human conduct does not warrant that exalted opinion of human
virtue which would make it wise in a nation to commit interests of so
delicate and momentous a kind, as those which concern its intercourse
with the rest of the world, to the sole disposal of a magistrate
created and circumstanced as would be a President of the United States.

To have intrusted the power of making treaties to the Senate alone,
would have been to relinquish the benefits of the constitutional agency
of the President in the conduct of foreign negotiations. It is true
that the Senate would, in that case, have the option of employing him
in this capacity, but they would also have the option of letting it
alone, and pique or cabal might induce the latter rather than the
former. Besides this, the ministerial servant of the Senate could not
be expected to enjoy the confidence and respect of foreign powers in
the same degree with the constitutional representatives of the nation,
and, of course, would not be able to act with an equal degree of weight
or efficacy. While the Union would, from this cause, lose a
considerable advantage in the management of its external concerns, the
people would lose the additional security which would result from the
co-operation of the Executive. Though it would be imprudent to confide
in him solely so important a trust, yet it cannot be doubted that his
participation would materially add to the safety of the society. It
must indeed be clear to a demonstration that the joint possession of
the power in question, by the President and Senate, would afford a
greater prospect of security, than the separate possession of it by
either of them. And whoever has maturely weighed the circumstances
which must concur in the appointment of a President, will be satisfied
that the office will always bid fair to be filled by men of such
characters as to render their concurrence in the formation of treaties
peculiarly desirable, as well on the score of wisdom, as on that of
integrity.

The remarks made in a former number, which have been alluded to in
another part of this paper, will apply with conclusive force against
the admission of the House of Representatives to a share in the
formation of treaties. The fluctuating and, taking its future increase
into the account, the multitudinous composition of that body, forbid us
to expect in it those qualities which are essential to the proper
execution of such a trust. Accurate and comprehensive knowledge of
foreign politics; a steady and systematic adherence to the same views;
a nice and uniform sensibility to national character; decision,
SECRECY, and despatch, are incompatible with the genius of a body so
variable and so numerous. The very complication of the business, by
introducing a necessity of the concurrence of so many different bodies,
would of itself afford a solid objection. The greater frequency of the
calls upon the House of Representatives, and the greater length of time
which it would often be necessary to keep them together when convened,
to obtain their sanction in the progressive stages of a treaty, would
be a source of so great inconvenience and expense as alone ought to
condemn the project.

The only objection which remains to be canvassed, is that which would
substitute the proportion of two thirds of all the members composing
the senatorial body, to that of two thirds of the members PRESENT. It
has been shown, under the second head of our inquiries, that all
provisions which require more than the majority of any body to its
resolutions, have a direct tendency to embarrass the operations of the
government, and an indirect one to subject the sense of the majority to
that of the minority. This consideration seems sufficient to determine
our opinion, that the convention have gone as far in the endeavor to
secure the advantage of numbers in the formation of treaties as could
have been reconciled either with the activity of the public councils or
with a reasonable regard to the major sense of the community. If two
thirds of the whole number of members had been required, it would, in
many cases, from the non-attendance of a part, amount in practice to a
necessity of unanimity. And the history of every political
establishment in which this principle has prevailed, is a history of
impotence, perplexity, and disorder. Proofs of this position might be
adduced from the examples of the Roman Tribuneship, the Polish Diet,
and the States-General of the Netherlands, did not an example at home
render foreign precedents unnecessary.

To require a fixed proportion of the whole body would not, in all
probability, contribute to the advantages of a numerous agency, better
then merely to require a proportion of the attending members. The
former, by making a determinate number at all times requisite to a
resolution, diminishes the motives to punctual attendance. The latter,
by making the capacity of the body to depend on a PROPORTION which may
be varied by the absence or presence of a single member, has the
contrary effect. And as, by promoting punctuality, it tends to keep the
body complete, there is great likelihood that its resolutions would
generally be dictated by as great a number in this case as in the
other; while there would be much fewer occasions of delay. It ought not
to be forgotten that, under the existing Confederation, two members
MAY, and usually DO, represent a State; whence it happens that
Congress, who now are solely invested with ALL THE POWERS of the Union,
rarely consist of a greater number of persons than would compose the
intended Senate. If we add to this, that as the members vote by States,
and that where there is only a single member present from a State, his
vote is lost, it will justify a supposition that the active voices in
the Senate, where the members are to vote individually, would rarely
fall short in number of the active voices in the existing Congress.
When, in addition to these considerations, we take into view the
co-operation of the President, we shall not hesitate to infer that the
people of America would have greater security against an improper use
of the power of making treaties, under the new Constitution, than they
now enjoy under the Confederation. And when we proceed still one step
further, and look forward to the probable augmentation of the Senate,
by the erection of new States, we shall not only perceive ample ground
of confidence in the sufficiency of the members to whose agency that
power will be intrusted, but we shall probably be led to conclude that
a body more numerous than the Senate would be likely to become, would
be very little fit for the proper discharge of the trust.

PUBLIUS.




THE FEDERALIST.
No. LXXVI.

The Appointing Power of the Executive

From the New York Packet.

Tuesday, April 1, 1788.

HAMILTON


To the People of the State of New York:

The President is “to NOMINATE, and, by and with the advice and consent
of the Senate, to appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the
United States whose appointments are not otherwise provided for in the
Constitution. But the Congress may by law vest the appointment of such
inferior officers as they think proper, in the President alone, or in
the courts of law, or in the heads of departments. The President shall
have power to fill up ALL VACANCIES which may happen DURING THE RECESS
OF THE SENATE, by granting commissions which shall EXPIRE at the end of
their next session.”

It has been observed in a former paper, that “the true test of a good
government is its aptitude and tendency to produce a good
administration.” If the justness of this observation be admitted, the
mode of appointing the officers of the United States contained in the
foregoing clauses, must, when examined, be allowed to be entitled to
particular commendation. It is not easy to conceive a plan better
calculated than this to promote a judicious choice of men for filling
the offices of the Union; and it will not need proof, that on this
point must essentially depend the character of its administration.

It will be agreed on all hands, that the power of appointment, in
ordinary cases, ought to be modified in one of three ways. It ought
either to be vested in a single man, or in a SELECT assembly of a
moderate number; or in a single man, with the concurrence of such an
assembly. The exercise of it by the people at large will be readily
admitted to be impracticable; as waiving every other consideration, it
would leave them little time to do anything else. When, therefore,
mention is made in the subsequent reasonings of an assembly or body of
men, what is said must be understood to relate to a select body or
assembly, of the description already given. The people collectively,
from their number and from their dispersed situation, cannot be
regulated in their movements by that systematic spirit of cabal and
intrigue, which will be urged as the chief objections to reposing the
power in question in a body of men.

Those who have themselves reflected upon the subject, or who have
attended to the observations made in other parts of these papers, in
relation to the appointment of the President, will, I presume, agree to
the position, that there would always be great probability of having
the place supplied by a man of abilities, at least respectable.
Premising this, I proceed to lay it down as a rule, that one man of
discernment is better fitted to analyze and estimate the peculiar
qualities adapted to particular offices, than a body of men of equal or
perhaps even of superior discernment.

The sole and undivided responsibility of one man will naturally beget a
livelier sense of duty and a more exact regard to reputation. He will,
on this account, feel himself under stronger obligations, and more
interested to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the persons who
may have the fairest pretensions to them. He will have FEWER personal
attachments to gratify, than a body of men who may each be supposed to
have an equal number; and will be so much the less liable to be misled
by the sentiments of friendship and of affection. A single
well-directed man, by a single understanding, cannot be distracted and
warped by that diversity of views, feelings, and interests, which
frequently distract and warp the resolutions of a collective body.
There is nothing so apt to agitate the passions of mankind as personal
considerations whether they relate to ourselves or to others, who are
to be the objects of our choice or preference. Hence, in every exercise
of the power of appointing to offices, by an assembly of men, we must
expect to see a full display of all the private and party likings and
dislikes, partialities and antipathies, attachments and animosities,
which are felt by those who compose the assembly. The choice which may
at any time happen to be made under such circumstances, will of course
be the result either of a victory gained by one party over the other,
or of a compromise between the parties. In either case, the intrinsic
merit of the candidate will be too often out of sight. In the first,
the qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: “Give us the man we wish for this office, and
you shall have the one you wish for that.” This will be the usual
condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either of
party victories or of party negotiations.

The truth of the principles here advanced seems to have been felt by
the most intelligent of those who have found fault with the provision
made, in this respect, by the convention. They contend that the
President ought solely to have been authorized to make the appointments
under the federal government. But it is easy to show, that every
advantage to be expected from such an arrangement would, in substance,
be derived from the power of NOMINATION, which is proposed to be
conferred upon him; while several disadvantages which might attend the
absolute power of appointment in the hands of that officer would be
avoided. In the act of nomination, his judgment alone would be
exercised; and as it would be his sole duty to point out the man who,
with the approbation of the Senate, should fill an office, his
responsibility would be as complete as if he were to make the final
appointment. There can, in this view, be no difference others, who are
to be the objects of our choice or preference. Hence, in every exercise
of the power of appointing to offices, by an assembly of men, we must
expect to see a full display of all the private and party likings and
dislikes, partialities and antipathies, attachments and animosities,
which are felt by those who compose the assembly. The choice which may
at any time happen to be made under such circumstances, will of course
be the result either of a victory gained by one party over the other,
or of a compromise between the parties. In either case, the intrinsic
merit of the candidate will be too often out of sight. In the first,
the qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: “Give us the man we wish for this office, and
you shall have the one you wish for that.” This will be the usual
condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either of
party victories or of party negotiations.

The truth of the principles here advanced seems to have been felt by
the most intelligent of those who have found fault with the provision
made, in this respect, by the convention. They contend that the
President ought solely to have been authorized to make the appointments
under the federal government. But it is easy to show, that every
advantage to be expected from such an arrangement would, in substance,
be derived from the power of NOMINATION, which is proposed to be
conferred upon him; while several disadvantages which might attend the
absolute power of appointment in the hands of that officer would be
avoided. In the act of nomination, his judgment alone would be
exercised; and as it would be his sole duty to point out the man who,
with the approbation of the Senate, should fill an office, his
responsibility would be as complete as if he were to make the final
appointment. There can, in this view, be no difference between
nominating and appointing. The same motives which would influence a
proper discharge of his duty in one case, would exist in the other. And
as no man could be appointed but on his previous nomination, every man
who might be appointed would be, in fact, his choice.

But might not his nomination be overruled? I grant it might, yet this
could only be to make place for another nomination by himself. The
person ultimately appointed must be the object of his preference,
though perhaps not in the first degree. It is also not very probable
that his nomination would often be overruled. The Senate could not be
tempted, by the preference they might feel to another, to reject the
one proposed; because they could not assure themselves, that the person
they might wish would be brought forward by a second or by any
subsequent nomination. They could not even be certain, that a future
nomination would present a candidate in any degree more acceptable to
them; and as their dissent might cast a kind of stigma upon the
individual rejected, and might have the appearance of a reflection upon
the judgment of the chief magistrate, it is not likely that their
sanction would often be refused, where there were not special and
strong reasons for the refusal.

To what purpose then require the co-operation of the Senate? I answer,
that the necessity of their concurrence would have a powerful, though,
in general, a silent operation. It would be an excellent check upon a
spirit of favoritism in the President, and would tend greatly to
prevent the appointment of unfit characters from State prejudice, from
family connection, from personal attachment, or from a view to
popularity. In addition to this, it would be an efficacious source of
stability in the administration.

It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private
inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a
different and independent body, and that body an entire branch of the
legislature. The possibility of rejection would be a strong motive to
care in proposing. The danger to his own reputation, and, in the case
of an elective magistrate, to his political existence, from betraying a
spirit of favoritism, or an unbecoming pursuit of popularity, to the
observation of a body whose opinion would have great weight in forming
that of the public, could not fail to operate as a barrier to the one
and to the other. He would be both ashamed and afraid to bring forward,
for the most distinguished or lucrative stations, candidates who had no
other merit than that of coming from the same State to which he
particularly belonged, or of being in some way or other personally
allied to him, or of possessing the necessary insignificance and
pliancy to render them the obsequious instruments of his pleasure.

To this reasoning it has been objected that the President, by the
influence of the power of nomination, may secure the complaisance of
the Senate to his views. This supposition of universal venalty in human
nature is little less an error in political reasoning, than the
supposition of universal rectitude. The institution of delegated power
implies, that there is a portion of virtue and honor among mankind,
which may be a reasonable foundation of confidence; and experience
justifies the theory. It has been found to exist in the most corrupt
periods of the most corrupt governments. The venalty of the British
House of Commons has been long a topic of accusation against that body,
in the country to which they belong as well as in this; and it cannot
be doubted that the charge is, to a considerable extent, well founded.
But it is as little to be doubted, that there is always a large
proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils of
the nation. Hence it is (the present reign not excepted) that the sense
of that body is often seen to control the inclinations of the monarch,
both with regard to men and to measures. Though it might therefore be
allowable to suppose that the Executive might occasionally influence
some individuals in the Senate, yet the supposition, that he could in
general purchase the integrity of the whole body, would be forced and
improbable. A man disposed to view human nature as it is, without
either flattering its virtues or exaggerating its vices, will see
sufficient ground of confidence in the probity of the Senate, to rest
satisfied, not only that it will be impracticable to the Executive to
corrupt or seduce a majority of its members, but that the necessity of
its co-operation, in the business of appointments, will be a
considerable and salutary restraint upon the conduct of that
magistrate. Nor is the integrity of the Senate the only reliance. The
Constitution has provided some important guards against the danger of
executive influence upon the legislative body: it declares that “No
senator or representative shall during the time FOR WHICH HE WAS
ELECTED, be appointed to any civil office under the United States,
which shall have been created, or the emoluments whereof shall have
been increased, during such time; and no person, holding any office
under the United States, shall be a member of either house during his
continuance in office.”

PUBLIUS.




THE FEDERALIST.
No. LXXVII.

The Appointing Power Continued and Other Powers of the Executive
Considered

From the New York Packet.

Friday, April 4, 1788.

HAMILTON


To the People of the State of New York:

It has been mentioned as one of the advantages to be expected from the
co-operation of the Senate, in the business of appointments, that it
would contribute to the stability of the administration. The consent of
that body would be necessary to displace as well as to appoint. A
change of the Chief Magistrate, therefore, would not occasion so
violent or so general a revolution in the officers of the government as
might be expected, if he were the sole disposer of offices. Where a man
in any station had given satisfactory evidence of his fitness for it, a
new President would be restrained from attempting a change in favor of
a person more agreeable to him, by the apprehension that a
discountenance of the Senate might frustrate the attempt, and bring
some degree of discredit upon himself. Those who can best estimate the
value of a steady administration, will be most disposed to prize a
provision which connects the official existence of public men with the
approbation or disapprobation of that body which, from the greater
permanency of its own composition, will in all probability be less
subject to inconstancy than any other member of the government.

To this union of the Senate with the President, in the article of
appointments, it has in some cases been suggested that it would serve
to give the President an undue influence over the Senate, and in others
that it would have an opposite tendency, a strong proof that neither
suggestion is true.

To state the first in its proper form, is to refute it. It amounts to
this: the President would have an improper INFLUENCE OVER the Senate,
because the Senate would have the power of RESTRAINING him. This is an
absurdity in terms. It cannot admit of a doubt that the entire power of
appointment would enable him much more effectually to establish a
dangerous empire over that body, than a mere power of nomination
subject to their control.

Let us take a view of the converse of the proposition: “the Senate
would influence the Executive.” As I have had occasion to remark in
several other instances, the indistinctness of the objection forbids a
precise answer. In what manner is this influence to be exerted? In
relation to what objects? The power of influencing a person, in the
sense in which it is here used, must imply a power of conferring a
benefit upon him. How could the Senate confer a benefit upon the
President by the manner of employing their right of negative upon his
nominations? If it be said they might sometimes gratify him by an
acquiescence in a favorite choice, when public motives might dictate a
different conduct, I answer, that the instances in which the President
could be personally interested in the result, would be too few to admit
of his being materially affected by the compliances of the Senate. The
POWER which can ORIGINATE the disposition of honors and emoluments, is
more likely to attract than to be attracted by the POWER which can
merely obstruct their course. If by influencing the President be meant
RESTRAINING him, this is precisely what must have been intended. And it
has been shown that the restraint would be salutary, at the same time
that it would not be such as to destroy a single advantage to be looked
for from the uncontrolled agency of that Magistrate. The right of
nomination would produce all the good of that of appointment, and would
in a great measure avoid its evils. Upon a comparison of the plan for
the appointment of the officers of the proposed government with that
which is established by the constitution of this State, a decided
preference must be given to the former. In that plan the power of
nomination is unequivocally vested in the Executive. And as there would
be a necessity for submitting each nomination to the judgment of an
entire branch of the legislature, the circumstances attending an
appointment, from the mode of conducting it, would naturally become
matters of notoriety; and the public would be at no loss to determine
what part had been performed by the different actors. The blame of a
bad nomination would fall upon the President singly and absolutely. The
censure of rejecting a good one would lie entirely at the door of the
Senate; aggravated by the consideration of their having counteracted
the good intentions of the Executive. If an ill appointment should be
made, the Executive for nominating, and the Senate for approving, would
participate, though in different degrees, in the opprobrium and
disgrace.

The reverse of all this characterizes the manner of appointment in this
State. The council of appointment consists of from three to five
persons, of whom the governor is always one. This small body, shut up
in a private apartment, impenetrable to the public eye, proceed to the
execution of the trust committed to them. It is known that the governor
claims the right of nomination, upon the strength of some ambiguous
expressions in the constitution; but it is not known to what extent, or
in what manner he exercises it; nor upon what occasions he is
contradicted or opposed. The censure of a bad appointment, on account
of the uncertainty of its author, and for want of a determinate object,
has neither poignancy nor duration. And while an unbounded field for
cabal and intrigue lies open, all idea of responsibility is lost. The
most that the public can know, is that the governor claims the right of
nomination; that TWO out of the inconsiderable number of FOUR men can
too often be managed without much difficulty; that if some of the
members of a particular council should happen to be of an uncomplying
character, it is frequently not impossible to get rid of their
opposition by regulating the times of meeting in such a manner as to
render their attendance inconvenient; and that from whatever cause it
may proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of the
ascendant he must necessarily have, in this delicate and important part
of the administration, to prefer to offices men who are best qualified
for them, or whether he prostitutes that advantage to the advancement
of persons whose chief merit is their implicit devotion to his will,
and to the support of a despicable and dangerous system of personal
influence, are questions which, unfortunately for the community, can
only be the subjects of speculation and conjecture.

Every mere council of appointment, however constituted, will be a
conclave, in which cabal and intrigue will have their full scope. Their
number, without an unwarrantable increase of expense, cannot be large
enough to preclude a facility of combination. And as each member will
have his friends and connections to provide for, the desire of mutual
gratification will beget a scandalous bartering of votes and bargaining
for places. The private attachments of one man might easily be
satisfied; but to satisfy the private attachments of a dozen, or of
twenty men, would occasion a monopoly of all the principal employments
of the government in a few families, and would lead more directly to an
aristocracy or an oligarchy than any measure that could be contrived.
If, to avoid an accumulation of offices, there was to be a frequent
change in the persons who were to compose the council, this would
involve the mischiefs of a mutable administration in their full extent.
Such a council would also be more liable to executive influence than
the Senate, because they would be fewer in number, and would act less
immediately under the public inspection. Such a council, in fine, as a
substitute for the plan of the convention, would be productive of an
increase of expense, a multiplication of the evils which spring from
favoritism and intrigue in the distribution of public honors, a
decrease of stability in the administration of the government, and a
diminution of the security against an undue influence of the Executive.
And yet such a council has been warmly contended for as an essential
amendment in the proposed Constitution.

I could not with propriety conclude my observations on the subject of
appointments without taking notice of a scheme for which there have
appeared some, though but few advocates; I mean that of uniting the
House of Representatives in the power of making them. I shall, however,
do little more than mention it, as I cannot imagine that it is likely
to gain the countenance of any considerable part of the community. A
body so fluctuating and at the same time so numerous, can never be
deemed proper for the exercise of that power. Its unfitness will appear
manifest to all, when it is recollected that in half a century it may
consist of three or four hundred persons. All the advantages of the
stability, both of the Executive and of the Senate, would be defeated
by this union, and infinite delays and embarrassments would be
occasioned. The example of most of the States in their local
constitutions encourages us to reprobate the idea.

The only remaining powers of the Executive are comprehended in giving
information to Congress of the state of the Union; in recommending to
their consideration such measures as he shall judge expedient; in
convening them, or either branch, upon extraordinary occasions; in
adjourning them when they cannot themselves agree upon the time of
adjournment; in receiving ambassadors and other public ministers; in
faithfully executing the laws; and in commissioning all the officers of
the United States.

Except some cavils about the power of convening EITHER house of the
legislature, and that of receiving ambassadors, no objection has been
made to this class of authorities; nor could they possibly admit of
any. It required, indeed, an insatiable avidity for censure to invent
exceptions to the parts which have been excepted to. In regard to the
power of convening either house of the legislature, I shall barely
remark, that in respect to the Senate at least, we can readily discover
a good reason for it. AS this body has a concurrent power with the
Executive in the article of treaties, it might often be necessary to
call it together with a view to this object, when it would be
unnecessary and improper to convene the House of Representatives. As to
the reception of ambassadors, what I have said in a former paper will
furnish a sufficient answer.

We have now completed a survey of the structure and powers of the
executive department, which, I have endeavored to show, combines, as
far as republican principles will admit, all the requisites to energy.
The remaining inquiry is: Does it also combine the requisites to
safety, in a republican sense, a due dependence on the people, a due
responsibility? The answer to this question has been anticipated in the
investigation of its other characteristics, and is satisfactorily
deducible from these circumstances; from the election of the President
once in four years by persons immediately chosen by the people for that
purpose; and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the common
course of law. But these precautions, great as they are, are not the
only ones which the plan of the convention has provided in favor of the
public security. In the only instances in which the abuse of the
executive authority was materially to be feared, the Chief Magistrate
of the United States would, by that plan, be subjected to the control
of a branch of the legislative body. What more could be desired by an
enlightened and reasonable people?

PUBLIUS.




THE FEDERALIST.
No. LXXVIII.

The Judiciary Department

From McLEAN’S Edition, New York.

HAMILTON


To the People of the State of New York:

We proceed now to an examination of the judiciary department of the
proposed government.

In unfolding the defects of the existing Confederation, the utility and
necessity of a federal judicature have been clearly pointed out. It is
the less necessary to recapitulate the considerations there urged, as
the propriety of the institution in the abstract is not disputed; the
only questions which have been raised being relative to the manner of
constituting it, and to its extent. To these points, therefore, our
observations shall be confined.

The manner of constituting it seems to embrace these several objects:
1st. The mode of appointing the judges. 2d. The tenure by which they
are to hold their places. 3d. The partition of the judiciary authority
between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with
that of appointing the officers of the Union in general, and has been
so fully discussed in the two last numbers, that nothing can be said
here which would not be useless repetition.

Second. As to the tenure by which the judges are to hold their places;
this chiefly concerns their duration in office; the provisions for
their support; the precautions for their responsibility.

According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices DURING GOOD
BEHAVIOR; which is conformable to the most approved of the State
constitutions and among the rest, to that of this State. Its propriety
having been drawn into question by the adversaries of that plan, is no
light symptom of the rage for objection, which disorders their
imaginations and judgments. The standard of good behavior for the
continuance in office of the judicial magistracy, is certainly one of
the most valuable of the modern improvements in the practice of
government. In a monarchy it is an excellent barrier to the despotism
of the prince; in a republic it is a no less excellent barrier to the
encroachments and oppressions of the representative body. And it is the
best expedient which can be devised in any government, to secure a
steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must
perceive, that, in a government in which they are separated from each
other, the judiciary, from the nature of its functions, will always be
the least dangerous to the political rights of the Constitution;
because it will be least in a capacity to annoy or injure them. The
Executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but prescribes
the rules by which the duties and rights of every citizen are to be
regulated. The judiciary, on the contrary, has no influence over either
the sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution whatever. It
may truly be said to have neither FORCE nor WILL, but merely judgment;
and must ultimately depend upon the aid of the executive arm even for
the efficacy of its judgments.

This simple view of the matter suggests several important consequences.
It proves incontestably, that the judiciary is beyond comparison the
weakest of the three departments of power;[1] that it can never attack
with success either of the other two; and that all possible care is
requisite to enable it to defend itself against their attacks. It
equally proves, that though individual oppression may now and then
proceed from the courts of justice, the general liberty of the people
can never be endangered from that quarter; I mean so long as the
judiciary remains truly distinct from both the legislature and the
Executive. For I agree, that “there is no liberty, if the power of
judging be not separated from the legislative and executive powers.”[2]
And it proves, in the last place, that as liberty can have nothing to
fear from the judiciary alone, but would have every thing to fear from
its union with either of the other departments; that as all the effects
of such a union must ensue from a dependence of the former on the
latter, notwithstanding a nominal and apparent separation; that as,
from the natural feebleness of the judiciary, it is in continual
jeopardy of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its firmness
and independence as permanency in office, this quality may therefore be
justly regarded as an indispensable ingredient in its constitution,
and, in a great measure, as the citadel of the public justice and the
public security.

The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex-post-facto laws, and the like. Limitations of
this kind can be preserved in practice no other way than through the
medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount to
nothing.

Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has arisen
from an imagination that the doctrine would imply a superiority of the
judiciary to the legislative power. It is urged that the authority
which can declare the acts of another void, must necessarily be
superior to the one whose acts may be declared void. As this doctrine
is of great importance in all the American constitutions, a brief
discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that
every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid. To deny this,
would be to affirm, that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people
are superior to the people themselves; that men acting by virtue of
powers, may do not only what their powers do not authorize, but what
they forbid.

If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may be
answered, that this cannot be the natural presumption, where it is not
to be collected from any particular provisions in the Constitution. It
is not otherwise to be supposed, that the Constitution could intend to
enable the representatives of the people to substitute their WILL to
that of their constituents. It is far more rational to suppose, that
the courts were designed to be an intermediate body between the people
and the legislature, in order, among other things, to keep the latter
within the limits assigned to their authority. The interpretation of
the laws is the proper and peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain its meaning,
as well as the meaning of any particular act proceeding from the
legislative body. If there should happen to be an irreconcilable
variance between the two, that which has the superior obligation and
validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the
people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of
the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate
their decisions by the fundamental laws, rather than by those which are
not fundamental.

This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one time,
clashing in whole or in part with each other, and neither of them
containing any repealing clause or expression. In such a case, it is
the province of the courts to liquidate and fix their meaning and
operation. So far as they can, by any fair construction, be reconciled
to each other, reason and law conspire to dictate that this should be
done; where this is impracticable, it becomes a matter of necessity to
give effect to one, in exclusion of the other. The rule which has
obtained in the courts for determining their relative validity is, that
the last in order of time shall be preferred to the first. But this is
a mere rule of construction, not derived from any positive law, but
from the nature and reason of the thing. It is a rule not enjoined upon
the courts by legislative provision, but adopted by themselves, as
consonant to truth and propriety, for the direction of their conduct as
interpreters of the law. They thought it reasonable, that between the
interfering acts of an EQUAL authority, that which was the last
indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate
authority, of an original and derivative power, the nature and reason
of the thing indicate the converse of that rule as proper to be
followed. They teach us that the prior act of a superior ought to be
preferred to the subsequent act of an inferior and subordinate
authority; and that accordingly, whenever a particular statute
contravenes the Constitution, it will be the duty of the judicial
tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a
repugnancy, may substitute their own pleasure to the constitutional
intentions of the legislature. This might as well happen in the case of
two contradictory statutes; or it might as well happen in every
adjudication upon any single statute. The courts must declare the sense
of the law; and if they should be disposed to exercise WILL instead of
JUDGMENT, the consequence would equally be the substitution of their
pleasure to that of the legislative body. The observation, if it prove
any thing, would prove that there ought to be no judges distinct from
that body.

If, then, the courts of justice are to be considered as the bulwarks of
a limited Constitution against legislative encroachments, this
consideration will afford a strong argument for the permanent tenure of
judicial offices, since nothing will contribute so much as this to that
independent spirit in the judges which must be essential to the
faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the
Constitution and the rights of individuals from the effects of those
ill humors, which the arts of designing men, or the influence of
particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the
meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I trust
the friends of the proposed Constitution will never concur with its
enemies[3] in questioning that fundamental principle of republican
government, which admits the right of the people to alter or abolish
the established Constitution, whenever they find it inconsistent with
their happiness, yet it is not to be inferred from this principle, that
the representatives of the people, whenever a momentary inclination
happens to lay hold of a majority of their constituents, incompatible
with the provisions in the existing Constitution, would, on that
account, be justifiable in a violation of those provisions; or that the
courts would be under a greater obligation to connive at infractions in
this shape, than when they had proceeded wholly from the cabals of the
representative body. Until the people have, by some solemn and
authoritative act, annulled or changed the established form, it is
binding upon themselves collectively, as well as individually; and no
presumption, or even knowledge, of their sentiments, can warrant their
representatives in a departure from it, prior to such an act. But it is
easy to see, that it would require an uncommon portion of fortitude in
the judges to do their duty as faithful guardians of the Constitution,
where legislative invasions of it had been instigated by the major
voice of the community.

But it is not with a view to infractions of the Constitution only, that
the independence of the judges may be an essential safeguard against
the effects of occasional ill humors in the society. These sometimes
extend no farther than to the injury of the private rights of
particular classes of citizens, by unjust and partial laws. Here also
the firmness of the judicial magistracy is of vast importance in
mitigating the severity and confining the operation of such laws. It
not only serves to moderate the immediate mischiefs of those which may
have been passed, but it operates as a check upon the legislative body
in passing them; who, perceiving that obstacles to the success of
iniquitous intention are to be expected from the scruples of the
courts, are in a manner compelled, by the very motives of the injustice
they meditate, to qualify their attempts. This is a circumstance
calculated to have more influence upon the character of our
governments, than but few may be aware of. The benefits of the
integrity and moderation of the judiciary have already been felt in
more States than one; and though they may have displeased those whose
sinister expectations they may have disappointed, they must have
commanded the esteem and applause of all the virtuous and
disinterested. Considerate men, of every description, ought to prize
whatever will tend to beget or fortify that temper in the courts: as no
man can be sure that he may not be to-morrow the victim of a spirit of
injustice, by which he may be a gainer to-day. And every man must now
feel, that the inevitable tendency of such a spirit is to sap the
foundations of public and private confidence, and to introduce in its
stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be indispensable
in the courts of justice, can certainly not be expected from judges who
hold their offices by a temporary commission. Periodical appointments,
however regulated, or by whomsoever made, would, in some way or other,
be fatal to their necessary independence. If the power of making them
was committed either to the Executive or legislature, there would be
danger of an improper complaisance to the branch which possessed it; if
to both, there would be an unwillingness to hazard the displeasure of
either; if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult popularity,
to justify a reliance that nothing would be consulted but the
Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the
judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with
great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them; and it will readily be
conceived from the variety of controversies which grow out of the folly
and wickedness of mankind, that the records of those precedents must
unavoidably swell to a very considerable bulk, and must demand long and
laborious study to acquire a competent knowledge of them. Hence it is,
that there can be but few men in the society who will have sufficient
skill in the laws to qualify them for the stations of judges. And
making the proper deductions for the ordinary depravity of human
nature, the number must be still smaller of those who unite the
requisite integrity with the requisite knowledge. These considerations
apprise us, that the government can have no great option between fit
character; and that a temporary duration in office, which would
naturally discourage such characters from quitting a lucrative line of
practice to accept a seat on the bench, would have a tendency to throw
the administration of justice into hands less able, and less well
qualified, to conduct it with utility and dignity. In the present
circumstances of this country, and in those in which it is likely to be
for a long time to come, the disadvantages on this score would be
greater than they may at first sight appear; but it must be confessed,
that they are far inferior to those which present themselves under the
other aspects of the subject.

Upon the whole, there can be no room to doubt that the convention acted
wisely in copying from the models of those constitutions which have
established GOOD BEHAVIOR as the tenure of their judicial offices, in
point of duration; and that so far from being blamable on this account,
their plan would have been inexcusably defective, if it had wanted this
important feature of good government. The experience of Great Britain
affords an illustrious comment on the excellence of the institution.

PUBLIUS.

 [1] The celebrated Montesquieu, speaking of them, says: “Of the three
 powers above mentioned, the judiciary is next to nothing.” _Spirit of
 Laws_. vol. i., page 186.

 [2] _Idem_, page 181.

 [3] _Vide Protest of the Minority of the Convention of Pennsylvania_,
 Martin’s Speech, etc.




THE FEDERALIST.
No. LXXIX.

The Judiciary Continued

From MCLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

Next to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support.
The remark made in relation to the President is equally applicable
here. In the general course of human nature, A POWER OVER A MAN’s
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope to
see realized in practice, the complete separation of the judicial from
the legislative power, in any system which leaves the former dependent
for pecuniary resources on the occasional grants of the latter. The
enlightened friends to good government in every State, have seen cause
to lament the want of precise and explicit precautions in the State
constitutions on this head. Some of these indeed have declared that
PERMANENT[1] salaries should be established for the judges; but the
experiment has in some instances shown that such expressions are not
sufficiently definite to preclude legislative evasions. Something still
more positive and unequivocal has been evinced to be requisite. The
plan of the convention accordingly has provided that the judges of the
United States “shall at STATED TIMES receive for their services a
compensation which shall not be DIMINISHED during their continuance in
office.”

This, all circumstances considered, is the most eligible provision that
could have been devised. It will readily be understood that the
fluctuations in the value of money and in the state of society rendered
a fixed rate of compensation in the Constitution inadmissible. What
might be extravagant to-day, might in half a century become penurious
and inadequate. It was therefore necessary to leave it to the
discretion of the legislature to vary its provisions in conformity to
the variations in circumstances, yet under such restrictions as to put
it out of the power of that body to change the condition of the
individual for the worse. A man may then be sure of the ground upon
which he stands, and can never be deterred from his duty by the
apprehension of being placed in a less eligible situation. The clause
which has been quoted combines both advantages. The salaries of
judicial officers may from time to time be altered, as occasion shall
require, yet so as never to lessen the allowance with which any
particular judge comes into office, in respect to him. It will be
observed that a difference has been made by the convention between the
compensation of the President and of the judges, That of the former can
neither be increased nor diminished; that of the latter can only not be
diminished. This probably arose from the difference in the duration of
the respective offices. As the President is to be elected for no more
than four years, it can rarely happen that an adequate salary, fixed at
the commencement of that period, will not continue to be such to its
end. But with regard to the judges, who, if they behave properly, will
be secured in their places for life, it may well happen, especially in
the early stages of the government, that a stipend, which would be very
sufficient at their first appointment, would become too small in the
progress of their service.

This provision for the support of the judges bears every mark of
prudence and efficacy; and it may be safely affirmed that, together
with the permanent tenure of their offices, it affords a better
prospect of their independence than is discoverable in the
constitutions of any of the States in regard to their own judges.

The precautions for their responsibility are comprised in the article
respecting impeachments. They are liable to be impeached for malconduct
by the House of Representatives, and tried by the Senate; and, if
convicted, may be dismissed from office, and disqualified for holding
any other. This is the only provision on the point which is consistent
with the necessary independence of the judicial character, and is the
only one which we find in our own Constitution in respect to our own
judges.

The want of a provision for removing the judges on account of inability
has been a subject of complaint. But all considerate men will be
sensible that such a provision would either not be practiced upon or
would be more liable to abuse than calculated to answer any good
purpose. The mensuration of the faculties of the mind has, I believe,
no place in the catalogue of known arts. An attempt to fix the boundary
between the regions of ability and inability, would much oftener give
scope to personal and party attachments and enmities than advance the
interests of justice or the public good. The result, except in the case
of insanity, must for the most part be arbitrary; and insanity, without
any formal or express provision, may be safely pronounced to be a
virtual disqualification.

The constitution of New York, to avoid investigations that must forever
be vague and dangerous, has taken a particular age as the criterion of
inability. No man can be a judge beyond sixty. I believe there are few
at present who do not disapprove of this provision. There is no
station, in relation to which it is less proper than to that of a
judge. The deliberating and comparing faculties generally preserve
their strength much beyond that period in men who survive it; and when,
in addition to this circumstance, we consider how few there are who
outlive the season of intellectual vigor, and how improbable it is that
any considerable portion of the bench, whether more or less numerous,
should be in such a situation at the same time, we shall be ready to
conclude that limitations of this sort have little to recommend them.
In a republic, where fortunes are not affluent, and pensions not
expedient, the dismission of men from stations in which they have
served their country long and usefully, on which they depend for
subsistence, and from which it will be too late to resort to any other
occupation for a livelihood, ought to have some better apology to
humanity than is to be found in the imaginary danger of a superannuated
bench.

PUBLIUS.

 [1] _Vide Constitution of Massachusetts_, chapter 2, section 1,
 article 13.




THE FEDERALIST.
No. LXXX.

The Powers of the Judiciary

From McLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

To judge with accuracy of the proper extent of the federal judicature,
it will be necessary to consider, in the first place, what are its
proper objects.

It seems scarcely to admit of controversy, that the judicary authority
of the Union ought to extend to these several descriptions of cases:
1st, to all those which arise out of the laws of the United States,
passed in pursuance of their just and constitutional powers of
legislation; 2d, to all those which concern the execution of the
provisions expressly contained in the articles of Union; 3d, to all
those in which the United States are a party; 4th, to all those which
involve the PEACE of the CONFEDERACY, whether they relate to the
intercourse between the United States and foreign nations, or to that
between the States themselves; 5th, to all those which originate on the
high seas, and are of admiralty or maritime jurisdiction; and, lastly,
to all those in which the State tribunals cannot be supposed to be
impartial and unbiased.

The first point depends upon this obvious consideration, that there
ought always to be a constitutional method of giving efficacy to
constitutional provisions. What, for instance, would avail restrictions
on the authority of the State legislatures, without some constitutional
mode of enforcing the observance of them? The States, by the plan of
the convention, are prohibited from doing a variety of things, some of
which are incompatible with the interests of the Union, and others with
the principles of good government. The imposition of duties on imported
articles, and the emission of paper money, are specimens of each kind.
No man of sense will believe, that such prohibitions would be
scrupulously regarded, without some effectual power in the government
to restrain or correct the infractions of them. This power must either
be a direct negative on the State laws, or an authority in the federal
courts to overrule such as might be in manifest contravention of the
articles of Union. There is no third course that I can imagine. The
latter appears to have been thought by the convention preferable to the
former, and, I presume, will be most agreeable to the States.

As to the second point, it is impossible, by any argument or comment,
to make it clearer than it is in itself. If there are such things as
political axioms, the propriety of the judicial power of a government
being coextensive with its legislative, may be ranked among the number.
The mere necessity of uniformity in the interpretation of the national
laws, decides the question. Thirteen independent courts of final
jurisdiction over the same causes, arising upon the same laws, is a
hydra in government, from which nothing but contradiction and confusion
can proceed.

Still less need be said in regard to the third point. Controversies
between the nation and its members or citizens, can only be properly
referred to the national tribunals. Any other plan would be contrary to
reason, to precedent, and to decorum.

The fourth point rests on this plain proposition, that the peace of the
WHOLE ought not to be left at the disposal of a PART. The Union will
undoubtedly be answerable to foreign powers for the conduct of its
members. And the responsibility for an injury ought ever to be
accompanied with the faculty of preventing it. As the denial or
perversion of justice by the sentences of courts, as well as in any
other manner, is with reason classed among the just causes of war, it
will follow that the federal judiciary ought to have cognizance of all
causes in which the citizens of other countries are concerned. This is
not less essential to the preservation of the public faith, than to the
security of the public tranquillity. A distinction may perhaps be
imagined between cases arising upon treaties and the laws of nations
and those which may stand merely on the footing of the municipal law.
The former kind may be supposed proper for the federal jurisdiction,
the latter for that of the States. But it is at least problematical,
whether an unjust sentence against a foreigner, where the subject of
controversy was wholly relative to the lex loci, would not, if
unredressed, be an aggression upon his sovereign, as well as one which
violated the stipulations of a treaty or the general law of nations.
And a still greater objection to the distinction would result from the
immense difficulty, if not impossibility, of a practical discrimination
between the cases of one complexion and those of the other. So great a
proportion of the cases in which foreigners are parties, involve
national questions, that it is by far most safe and most expedient to
refer all those in which they are concerned to the national tribunals.

The power of determining causes between two States, between one State
and the citizens of another, and between the citizens of different
States, is perhaps not less essential to the peace of the Union than
that which has been just examined. History gives us a horrid picture of
the dissensions and private wars which distracted and desolated Germany
prior to the institution of the Imperial Chamber by Maximilian, towards
the close of the fifteenth century; and informs us, at the same time,
of the vast influence of that institution in appeasing the disorders
and establishing the tranquillity of the empire. This was a court
invested with authority to decide finally all differences among the
members of the Germanic body.

A method of terminating territorial disputes between the States, under
the authority of the federal head, was not unattended to, even in the
imperfect system by which they have been hitherto held together. But
there are many other sources, besides interfering claims of boundary,
from which bickerings and animosities may spring up among the members
of the Union. To some of these we have been witnesses in the course of
our past experience. It will readily be conjectured that I allude to
the fraudulent laws which have been passed in too many of the States.
And though the proposed Constitution establishes particular guards
against the repetition of those instances which have heretofore made
their appearance, yet it is warrantable to apprehend that the spirit
which produced them will assume new shapes, that could not be foreseen
nor specifically provided against. Whatever practices may have a
tendency to disturb the harmony between the States, are proper objects
of federal superintendence and control.

It may be esteemed the basis of the Union, that “the citizens of each
State shall be entitled to all the privileges and immunities of
citizens of the several States.” And if it be a just principle that
every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN
PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the
inviolable maintenance of that equality of privileges and immunities to
which the citizens of the Union will be entitled, the national
judiciary ought to preside in all cases in which one State or its
citizens are opposed to another State or its citizens. To secure the
full effect of so fundamental a provision against all evasion and
subterfuge, it is necessary that its construction should be committed
to that tribunal which, having no local attachments, will be likely to
be impartial between the different States and their citizens, and
which, owing its official existence to the Union, will never be likely
to feel any bias inauspicious to the principles on which it is founded.

The fifth point will demand little animadversion. The most bigoted
idolizers of State authority have not thus far shown a disposition to
deny the national judiciary the cognizances of maritime causes. These
so generally depend on the laws of nations, and so commonly affect the
rights of foreigners, that they fall within the considerations which
are relative to the public peace. The most important part of them are,
by the present Confederation, submitted to federal jurisdiction.

The reasonableness of the agency of the national courts in cases in
which the State tribunals cannot be supposed to be impartial, speaks
for itself. No man ought certainly to be a judge in his own cause, or
in any cause in respect to which he has the least interest or bias.
This principle has no inconsiderable weight in designating the federal
courts as the proper tribunals for the determination of controversies
between different States and their citizens. And it ought to have the
same operation in regard to some cases between citizens of the same
State. Claims to land under grants of different States, founded upon
adverse pretensions of boundary, are of this description. The courts of
neither of the granting States could be expected to be unbiased. The
laws may have even prejudged the question, and tied the courts down to
decisions in favor of the grants of the State to which they belonged.
And even where this had not been done, it would be natural that the
judges, as men, should feel a strong predilection to the claims of
their own government.

Having thus laid down and discussed the principles which ought to
regulate the constitution of the federal judiciary, we will proceed to
test, by these principles, the particular powers of which, according to
the plan of the convention, it is to be composed. It is to comprehend
“all cases in law and equity arising under the Constitution, the laws
of the United States, and treaties made, or which shall be made, under
their authority; to all cases affecting ambassadors, other public
ministers, and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United States shall be a
party; to controversies between two or more States; between a State and
citizens of another State; between citizens of different States;
between citizens of the same State claiming lands and grants of
different States; and between a State or the citizens thereof and
foreign states, citizens, and subjects.” This constitutes the entire
mass of the judicial authority of the Union. Let us now review it in
detail. It is, then, to extend:

First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION
and THE LAWS OF THE UNITED STATES. This corresponds with the two first
classes of causes, which have been enumerated, as proper for the
jurisdiction of the United States. It has been asked, what is meant by
“cases arising under the Constitution,” in contradiction from those
“arising under the laws of the United States”? The difference has been
already explained. All the restrictions upon the authority of the State
legislatures furnish examples of it. They are not, for instance, to
emit paper money; but the interdiction results from the Constitution,
and will have no connection with any law of the United States. Should
paper money, notwithstanding, be emited, the controversies concerning
it would be cases arising under the Constitution and not the laws of
the United States, in the ordinary signification of the terms. This may
serve as a sample of the whole.

It has also been asked, what need of the word “equity What equitable
causes can grow out of the Constitution and laws of the United States?
There is hardly a subject of litigation between individuals, which may
not involve those ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP,
which would render the matter an object of equitable rather than of
legal jurisdiction, as the distinction is known and established in
several of the States. It is the peculiar province, for instance, of a
court of equity to relieve against what are called hard bargains: these
are contracts in which, though there may have been no direct fraud or
deceit, sufficient to invalidate them in a court of law, yet there may
have been some undue and unconscionable advantage taken of the
necessities or misfortunes of one of the parties, which a court of
equity would not tolerate. In such cases, where foreigners were
concerned on either side, it would be impossible for the federal
judicatories to do justice without an equitable as well as a legal
jurisdiction. Agreements to convey lands claimed under the grants of
different States, may afford another example of the necessity of an
equitable jurisdiction in the federal courts. This reasoning may not be
so palpable in those States where the formal and technical distinction
between LAW and EQUITY is not maintained, as in this State, where it is
exemplified by every day’s practice.

The judiciary authority of the Union is to extend:

Second. To treaties made, or which shall be made, under the authority
of the United States, and to all cases affecting ambassadors, other
public ministers, and consuls. These belong to the fourth class of the
enumerated cases, as they have an evident connection with the
preservation of the national peace.

Third. To cases of admiralty and maritime jurisdiction. These form,
altogether, the fifth of the enumerated classes of causes proper for
the cognizance of the national courts.

Fourth. To controversies to which the United States shall be a party.
These constitute the third of those classes.

Fifth. To controversies between two or more States; between a State and
citizens of another State; between citizens of different States. These
belong to the fourth of those classes, and partake, in some measure, of
the nature of the last.

Sixth. To cases between the citizens of the same State, CLAIMING LANDS
UNDER GRANTS OF DIFFERENT STATES. These fall within the last class, and
ARE THE ONLY INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY
CONTEMPLATES THE COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE
SAME STATE.

Seventh. To cases between a State and the citizens thereof, and foreign
States, citizens, or subjects. These have been already explained to
belong to the fourth of the enumerated classes, and have been shown to
be, in a peculiar manner, the proper subjects of the national
judicature.

From this review of the particular powers of the federal judiciary, as
marked out in the Constitution, it appears that they are all
conformable to the principles which ought to have governed the
structure of that department, and which were necessary to the
perfection of the system. If some partial inconviences should appear to
be connected with the incorporation of any of them into the plan, it
ought to be recollected that the national legislature will have ample
authority to make such EXCEPTIONS, and to prescribe such regulations as
will be calculated to obviate or remove these inconveniences. The
possibility of particular mischiefs can never be viewed, by a
wellinformed mind, as a solid objection to a general principle, which
is calculated to avoid general mischiefs and to obtain general
advantages.

PUBLIUS.




THE FEDERALIST.
No. LXXXI.

The Judiciary Continued, and the Distribution of the Judicial Authority

From McLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

Let us now return to the partition of the judiciary authority between
different courts, and their relations to each other, “The judicial
power of the United States is” (by the plan of the convention) “to be
vested in one Supreme Court, and in such inferior courts as the
Congress may, from time to time, ordain and establish.”[1]

That there ought to be one court of supreme and final jurisdiction, is
a proposition which is not likely to be contested. The reasons for it
have been assigned in another place, and are too obvious to need
repetition. The only question that seems to have been raised concerning
it, is, whether it ought to be a distinct body or a branch of the
legislature. The same contradiction is observable in regard to this
matter which has been remarked in several other cases. The very men who
object to the Senate as a court of impeachments, on the ground of an
improper intermixture of powers, advocate, by implication at least, the
propriety of vesting the ultimate decision of all causes, in the whole
or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is
founded, are to this effect: “The authority of the proposed Supreme
Court of the United States, which is to be a separate and independent
body, will be superior to that of the legislature. The power of
construing the laws according to the SPIRIT of the Constitution, will
enable that court to mould them into whatever shape it may think
proper; especially as its decisions will not be in any manner subject
to the revision or correction of the legislative body. This is as
unprecedented as it is dangerous. In Britain, the judical power, in the
last resort, resides in the House of Lords, which is a branch of the
legislature; and this part of the British government has been imitated
in the State constitutions in general. The Parliament of Great Britain,
and the legislatures of the several States, can at any time rectify, by
law, the exceptionable decisions of their respective courts. But the
errors and usurpations of the Supreme Court of the United States will
be uncontrollable and remediless.” This, upon examination, will be
found to be made up altogether of false reasoning upon misconceived
fact.

In the first place, there is not a syllable in the plan under
consideration which DIRECTLY empowers the national courts to construe
the laws according to the spirit of the Constitution, or which gives
them any greater latitude in this respect than may be claimed by the
courts of every State. I admit, however, that the Constitution ought to
be the standard of construction for the laws, and that wherever there
is an evident opposition, the laws ought to give place to the
Constitution. But this doctrine is not deducible from any circumstance
peculiar to the plan of the convention, but from the general theory of
a limited Constitution; and as far as it is true, is equally applicable
to most, if not to all the State governments. There can be no
objection, therefore, on this account, to the federal judicature which
will not lie against the local judicatures in general, and which will
not serve to condemn every constitution that attempts to set bounds to
legislative discretion.

But perhaps the force of the objection may be thought to consist in the
particular organization of the Supreme Court; in its being composed of
a distinct body of magistrates, instead of being one of the branches of
the legislature, as in the government of Great Britain and that of the
State. To insist upon this point, the authors of the objection must
renounce the meaning they have labored to annex to the celebrated
maxim, requiring a separation of the departments of power. It shall,
nevertheless, be conceded to them, agreeably to the interpretation
given to that maxim in the course of these papers, that it is not
violated by vesting the ultimate power of judging in a PART of the
legislative body. But though this be not an absolute violation of that
excellent rule, yet it verges so nearly upon it, as on this account
alone to be less eligible than the mode preferred by the convention.
From a body which had even a partial agency in passing bad laws, we
could rarely expect a disposition to temper and moderate them in the
application. The same spirit which had operated in making them, would
be too apt in interpreting them; still less could it be expected that
men who had infringed the Constitution in the character of legislators,
would be disposed to repair the breach in the character of judges. Nor
is this all. Every reason which recommends the tenure of good behavior
for judicial offices, militates against placing the judiciary power, in
the last resort, in a body composed of men chosen for a limited period.
There is an absurdity in referring the determination of causes, in the
first instance, to judges of permanent standing; in the last, to those
of a temporary and mutable constitution. And there is a still greater
absurdity in subjecting the decisions of men, selected for their
knowledge of the laws, acquired by long and laborious study, to the
revision and control of men who, for want of the same advantage, cannot
but be deficient in that knowledge. The members of the legislature will
rarely be chosen with a view to those qualifications which fit men for
the stations of judges; and as, on this account, there will be great
reason to apprehend all the ill consequences of defective information,
so, on account of the natural propensity of such bodies to party
divisions, there will be no less reason to fear that the pestilential
breath of faction may poison the fountains of justice. The habit of
being continually marshalled on opposite sides will be too apt to
stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who
have committed the judicial power, in the last resort, not to a part of
the legislature, but to distinct and independent bodies of men.
Contrary to the supposition of those who have represented the plan of
the convention, in this respect, as novel and unprecedented, it is but
a copy of the constitutions of New Hampshire, Massachusetts,
Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South
Carolina, and Georgia; and the preference which has been given to those
models is highly to be commended.

It is not true, in the second place, that the Parliament of Great
Britain, or the legislatures of the particular States, can rectify the
exceptionable decisions of their respective courts, in any other sense
than might be done by a future legislature of the United States. The
theory, neither of the British, nor the State constitutions, authorizes
the revisal of a judicial sentence by a legislative act. Nor is there
any thing in the proposed Constitution, more than in either of them, by
which it is forbidden. In the former, as well as in the latter, the
impropriety of the thing, on the general principles of law and reason,
is the sole obstacle. A legislature, without exceeding its province,
cannot reverse a determination once made in a particular case; though
it may prescribe a new rule for future cases. This is the principle,
and it applies in all its consequences, exactly in the same manner and
extent, to the State governments, as to the national government now
under consideration. Not the least difference can be pointed out in any
view of the subject.

It may in the last place be observed that the supposed danger of
judiciary encroachments on the legislative authority, which has been
upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may
now and then happen; but they can never be so extensive as to amount to
an inconvenience, or in any sensible degree to affect the order of the
political system. This may be inferred with certainty, from the general
nature of the judicial power, from the objects to which it relates,
from the manner in which it is exercised, from its comparative
weakness, and from its total incapacity to support its usurpations by
force. And the inference is greatly fortified by the consideration of
the important constitutional check which the power of instituting
impeachments in one part of the legislative body, and of determining
upon them in the other, would give to that body upon the members of the
judicial department. This is alone a complete security. There never can
be danger that the judges, by a series of deliberate usurpations on the
authority of the legislature, would hazard the united resentment of the
body intrusted with it, while this body was possessed of the means of
punishing their presumption, by degrading them from their stations.
While this ought to remove all apprehensions on the subject, it
affords, at the same time, a cogent argument for constituting the
Senate a court for the trial of impeachments.

Having now examined, and, I trust, removed the objections to the
distinct and independent organization of the Supreme Court, I proceed
to consider the propriety of the power of constituting inferior
courts,[2] and the relations which will subsist between these and the
former.

The power of constituting inferior courts is evidently calculated to
obviate the necessity of having recourse to the Supreme Court in every
case of federal cognizance. It is intended to enable the national
government to institute or AUTHORUZE, in each State or district of the
United States, a tribunal competent to the determination of matters of
national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished
by the instrumentality of the State courts? This admits of different
answers. Though the fitness and competency of those courts should be
allowed in the utmost latitude, yet the substance of the power in
question may still be regarded as a necessary part of the plan, if it
were only to empower the national legislature to commit to them the
cognizance of causes arising out of the national Constitution. To
confer the power of determining such causes upon the existing courts of
the several States, would perhaps be as much “to constitute tribunals,”
as to create new courts with the like power. But ought not a more
direct and explicit provision to have been made in favor of the State
courts? There are, in my opinion, substantial reasons against such a
provision: the most discerning cannot foresee how far the prevalency of
a local spirit may be found to disqualify the local tribunals for the
jurisdiction of national causes; whilst every man may discover, that
courts constituted like those of some of the States would be improper
channels of the judicial authority of the Union. State judges, holding
their offices during pleasure, or from year to year, will be too little
independent to be relied upon for an inflexible execution of the
national laws. And if there was a necessity for confiding the original
cognizance of causes arising under those laws to them there would be a
correspondent necessity for leaving the door of appeal as wide as
possible. In proportion to the grounds of confidence in, or distrust
of, the subordinate tribunals, ought to be the facility or difficulty
of appeals. And well satisfied as I am of the propriety of the
appellate jurisdiction, in the several classes of causes to which it is
extended by the plan of the convention. I should consider every thing
calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as
a source of public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful,
to divide the United States into four or five or half a dozen
districts; and to institute a federal court in each district, in lieu
of one in every State. The judges of these courts, with the aid of the
State judges, may hold circuits for the trial of causes in the several
parts of the respective districts. Justice through them may be
administered with ease and despatch; and appeals may be safely
circumscribed within a narrow compass. This plan appears to me at
present the most eligible of any that could be adopted; and in order to
it, it is necessary that the power of constituting inferior courts
should exist in the full extent in which it is to be found in the
proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want
of such a power would have been a great defect in the plan. Let us now
examine in what manner the judicial authority is to be distributed
between the supreme and the inferior courts of the Union. The Supreme
Court is to be invested with original jurisdiction, only “in cases
affecting ambassadors, other public ministers, and consuls, and those
in which A STATE shall be a party.” Public ministers of every class are
the immediate representatives of their sovereigns. All questions in
which they are concerned are so directly connected with the public
peace, that, as well for the preservation of this, as out of respect to
the sovereignties they represent, it is both expedient and proper that
such questions should be submitted in the first instance to the highest
judicatory of the nation. Though consuls have not in strictness a
diplomatic character, yet as they are the public agents of the nations
to which they belong, the same observation is in a great measure
applicable to them. In cases in which a State might happen to be a
party, it would ill suit its dignity to be turned over to an inferior
tribunal. Though it may rather be a digression from the immediate
subject of this paper, I shall take occasion to mention here a
supposition which has excited some alarm upon very mistaken grounds. It
has been suggested that an assignment of the public securities of one
State to the citizens of another, would enable them to prosecute that
State in the federal courts for the amount of those securities; a
suggestion which the following considerations prove to be without
foundation.

It is inherent in the nature of sovereignty not to be amenable to the
suit of an individual WITHOUT ITS CONSENT. This is the general sense,
and the general practice of mankind; and the exemption, as one of the
attributes of sovereignty, is now enjoyed by the government of every
State in the Union. Unless, therefore, there is a surrender of this
immunity in the plan of the convention, it will remain with the States,
and the danger intimated must be merely ideal. The circumstances which
are necessary to produce an alienation of State sovereignty were
discussed in considering the article of taxation, and need not be
repeated here. A recurrence to the principles there established will
satisfy us, that there is no color to pretend that the State
governments would, by the adoption of that plan, be divested of the
privilege of paying their own debts in their own way, free from every
constraint but that which flows from the obligations of good faith. The
contracts between a nation and individuals are only binding on the
conscience of the sovereign, and have no pretensions to a compulsive
force. They confer no right of action, independent of the sovereign
will. To what purpose would it be to authorize suits against States for
the debts they owe? How could recoveries be enforced? It is evident, it
could not be done without waging war against the contracting State; and
to ascribe to the federal courts, by mere implication, and in
destruction of a pre-existing right of the State governments, a power
which would involve such a consequence, would be altogether forced and
unwarrantable.

Let us resume the train of our observations. We have seen that the
original jurisdiction of the Supreme Court would be confined to two
classes of causes, and those of a nature rarely to occur. In all other
cases of federal cognizance, the original jurisdiction would appertain
to the inferior tribunals; and the Supreme Court would have nothing
more than an appellate jurisdiction, “with such EXCEPTIONS and under
such REGULATIONS as the Congress shall make.”

The propriety of this appellate jurisdiction has been scarcely called
in question in regard to matters of law; but the clamors have been loud
against it as applied to matters of fact. Some well-intentioned men in
this State, deriving their notions from the language and forms which
obtain in our courts, have been induced to consider it as an implied
supersedure of the trial by jury, in favor of the civil-law mode of
trial, which prevails in our courts of admiralty, probate, and
chancery. A technical sense has been affixed to the term “appellate,”
which, in our law parlance, is commonly used in reference to appeals in
the course of the civil law. But if I am not misinformed, the same
meaning would not be given to it in any part of New England. There an
appeal from one jury to another, is familiar both in language and
practice, and is even a matter of course, until there have been two
verdicts on one side. The word “appellate,” therefore, will not be
understood in the same sense in New England as in New York, which shows
the impropriety of a technical interpretation derived from the
jurisprudence of any particular State. The expression, taken in the
abstract, denotes nothing more than the power of one tribunal to review
the proceedings of another, either as to the law or fact, or both. The
mode of doing it may depend on ancient custom or legislative provision
(in a new government it must depend on the latter), and may be with or
without the aid of a jury, as may be judged advisable. If, therefore,
the re-examination of a fact once determined by a jury, should in any
case be admitted under the proposed Constitution, it may be so
regulated as to be done by a second jury, either by remanding the cause
to the court below for a second trial of the fact, or by directing an
issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once
ascertained by a jury, will be permitted in the Supreme Court. Why may
not it be said, with the strictest propriety, when a writ of error is
brought from an inferior to a superior court of law in this State, that
the latter has jurisdiction of the fact as well as the law? It is true
it cannot institute a new inquiry concerning the fact, but it takes
cognizance of it as it appears upon the record, and pronounces the law
arising upon it.[3] This is jurisdiction of both fact and law; nor is
it even possible to separate them. Though the common-law courts of this
State ascertain disputed facts by a jury, yet they unquestionably have
jurisdiction of both fact and law; and accordingly when the former is
agreed in the pleadings, they have no recourse to a jury, but proceed
at once to judgment. I contend, therefore, on this ground, that the
expressions, “appellate jurisdiction, both as to law and fact,” do not
necessarily imply a re-examination in the Supreme Court of facts
decided by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced
the convention, in relation to this particular provision. The appellate
jurisdiction of the Supreme Court (it may have been argued) will extend
to causes determinable in different modes, some in the course of the
COMMON LAW, others in the course of the CIVIL LAW. In the former, the
revision of the law only will be, generally speaking, the proper
province of the Supreme Court; in the latter, the re-examination of the
fact is agreeable to usage, and in some cases, of which prize causes
are an example, might be essential to the preservation of the public
peace. It is therefore necessary that the appellate jurisdiction
should, in certain cases, extend in the broadest sense to matters of
fact. It will not answer to make an express exception of cases which
shall have been originally tried by a jury, because in the courts of
some of the States ALL CAUSES are tried in this mode;[4] and such an
exception would preclude the revision of matters of fact, as well where
it might be proper, as where it might be improper. To avoid all
inconveniencies, it will be safest to declare generally, that the
Supreme Court shall possess appellate jurisdiction both as to law and
FACT, and that this jurisdiction shall be subject to such EXCEPTIONS
and regulations as the national legislature may prescribe. This will
enable the government to modify it in such a manner as will best answer
the ends of public justice and security.

This view of the matter, at any rate, puts it out of all doubt that the
supposed ABOLITION of the trial by jury, by the operation of this
provision, is fallacious and untrue. The legislature of the United
States would certainly have full power to provide, that in appeals to
the Supreme Court there should be no re-examination of facts where they
had been tried in the original causes by juries. This would certainly
be an authorized exception; but if, for the reason already intimated,
it should be thought too extensive, it might be qualified with a
limitation to such causes only as are determinable at common law in
that mode of trial.

The amount of the observations hitherto made on the authority of the
judicial department is this: that it has been carefully restricted to
those causes which are manifestly proper for the cognizance of the
national judicature; that in the partition of this authority a very
small portion of original jurisdiction has been preserved to the
Supreme Court, and the rest consigned to the subordinate tribunals;
that the Supreme Court will possess an appellate jurisdiction, both as
to law and fact, in all the cases referred to them, both subject to any
EXCEPTIONS and REGULATIONS which may be thought advisable; that this
appellate jurisdiction does, in no case, ABOLISH the trial by jury; and
that an ordinary degree of prudence and integrity in the national
councils will insure us solid advantages from the establishment of the
proposed judiciary, without exposing us to any of the inconveniences
which have been predicted from that source.

PUBLIUS.

 [1] Article 3, sec. 1.

 [2] This power has been absurdly represented as intended to abolish
 all the county courts in the several States, which are commonly called
 inferior courts. But the expressions of the Constitution are, to
 constitute “tribunals INFERIOR TO THE SUPREME COURT”; and the evident
 design of the provision is to enable the institution of local courts,
 subordinate to the Supreme, either in States or larger districts. It
 is ridiculous to imagine that county courts were in contemplation.

 [3] This word is composed of JUS and DICTIO, juris dictio or a
 speaking and pronouncing of the law.

 [4] I hold that the States will have concurrent jurisdiction with the
 subordinate federal judicatories, in many cases of federal cognizance,
 as will be explained in my next paper.




THE FEDERALIST.
No. LXXXII.

The Judiciary Continued

From McLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

The erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of intricacy
and nicety; and these may, in a particular manner, be expected to flow
from the establishment of a constitution founded upon the total or
partial incorporation of a number of distinct sovereignties. ’T is time
only that can mature and perfect so compound a system, can liquidate
the meaning of all the parts, and can adjust them to each other in a
harmonious and consistent WHOLE.

Such questions, accordingly, have arisen upon the plan proposed by the
convention, and particularly concerning the judiciary department. The
principal of these respect the situation of the State courts in regard
to those causes which are to be submitted to federal jurisdiction. Is
this to be exclusive, or are those courts to possess a concurrent
jurisdiction? If the latter, in what relation will they stand to the
national tribunals? These are inquiries which we meet with in the
mouths of men of sense, and which are certainly entitled to attention.

The principles established in a former paper[1] teach us that the
States will retain all PRE-EXISTING authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union, and the exercise of a
like authority is prohibited to the States; or where an authority is
granted to the Union, with which a similar authority in the States
would be utterly incompatible. Though these principles may not apply
with the same force to the judiciary as to the legislative power, yet I
am inclined to think that they are, in the main, just with respect to
the former, as well as the latter. And under this impression, I shall
lay it down as a rule, that the State courts will RETAIN the
jurisdiction they now have, unless it appears to be taken away in one
of the enumerated modes.

The only thing in the proposed Constitution, which wears the appearance
of confining the causes of federal cognizance to the federal courts, is
contained in this passage: “The JUDICIAL POWER of the United States
SHALL BE VESTED in one Supreme Court, and in SUCH inferior courts as
the Congress shall from time to time ordain and establish.” This might
either be construed to signify, that the supreme and subordinate courts
of the Union should alone have the power of deciding those causes to
which their authority is to extend; or simply to denote, that the
organs of the national judiciary should be one Supreme Court, and as
many subordinate courts as Congress should think proper to appoint; or
in other words, that the United States should exercise the judicial
power with which they are to be invested, through one supreme tribunal,
and a certain number of inferior ones, to be instituted by them. The
first excludes, the last admits, the concurrent jurisdiction of the
State tribunals; and as the first would amount to an alienation of
State power by implication, the last appears to me the most natural and
the most defensible construction.

But this doctrine of concurrent jurisdiction is only clearly applicable
to those descriptions of causes of which the State courts have previous
cognizance. It is not equally evident in relation to cases which may
grow out of, and be PECULIAR to, the Constitution to be established;
for not to allow the State courts a right of jurisdiction in such
cases, can hardly be considered as the abridgment of a pre-existing
authority. I mean not therefore to contend that the United States, in
the course of legislation upon the objects intrusted to their
direction, may not commit the decision of causes arising upon a
particular regulation to the federal courts solely, if such a measure
should be deemed expedient; but I hold that the State courts will be
divested of no part of their primitive jurisdiction, further than may
relate to an appeal; and I am even of opinion that in every case in
which they were not expressly excluded by the future acts of the
national legislature, they will of course take cognizance of the causes
to which those acts may give birth. This I infer from the nature of
judiciary power, and from the general genius of the system. The
judiciary power of every government looks beyond its own local or
municipal laws, and in civil cases lays hold of all subjects of
litigation between parties within its jurisdiction, though the causes
of dispute are relative to the laws of the most distant part of the
globe. Those of Japan, not less than of New York, may furnish the
objects of legal discussion to our courts. When in addition to this we
consider the State governments and the national governments, as they
truly are, in the light of kindred systems, and as parts of ONE WHOLE,
the inference seems to be conclusive, that the State courts would have
a concurrent jurisdiction in all cases arising under the laws of the
Union, where it was not expressly prohibited.

Here another question occurs: What relation would subsist between the
national and State courts in these instances of concurrent
jurisdiction? I answer, that an appeal would certainly lie from the
latter, to the Supreme Court of the United States. The Constitution in
direct terms gives an appellate jurisdiction to the Supreme Court in
all the enumerated cases of federal cognizance in which it is not to
have an original one, without a single expression to confine its
operation to the inferior federal courts. The objects of appeal, not
the tribunals from which it is to be made, are alone contemplated. From
this circumstance, and from the reason of the thing, it ought to be
construed to extend to the State tribunals. Either this must be the
case, or the local courts must be excluded from a concurrent
jurisdiction in matters of national concern, else the judiciary
authority of the Union may be eluded at the pleasure of every plaintiff
or prosecutor. Neither of these consequences ought, without evident
necessity, to be involved; the latter would be entirely inadmissible,
as it would defeat some of the most important and avowed purposes of
the proposed government, and would essentially embarrass its measures.
Nor do I perceive any foundation for such a supposition. Agreeably to
the remark already made, the national and State systems are to be
regarded as ONE WHOLE. The courts of the latter will of course be
natural auxiliaries to the execution of the laws of the Union, and an
appeal from them will as naturally lie to that tribunal which is
destined to unite and assimilate the principles of national justice and
the rules of national decisions. The evident aim of the plan of the
convention is, that all the causes of the specified classes shall, for
weighty public reasons, receive their original or final determination
in the courts of the Union. To confine, therefore, the general
expressions giving appellate jurisdiction to the Supreme Court, to
appeals from the subordinate federal courts, instead of allowing their
extension to the State courts, would be to abridge the latitude of the
terms, in subversion of the intent, contrary to every sound rule of
interpretation.

But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions
which have been raised, and of greater difficulty than the former. The
following considerations countenance the affirmative. The plan of the
convention, in the first place, authorizes the national legislature “to
constitute tribunals inferior to the Supreme Court.”[2] It declares, in
the next place, that “the JUDICIAL POWER of the United States SHALL BE
VESTED in one Supreme Court, and in such inferior courts as Congress
shall ordain and establish”; and it then proceeds to enumerate the
cases to which this judicial power shall extend. It afterwards divides
the jurisdiction of the Supreme Court into original and appellate, but
gives no definition of that of the subordinate courts. The only
outlines described for them, are that they shall be “inferior to the
Supreme Court,” and that they shall not exceed the specified limits of
the federal judiciary. Whether their authority shall be original or
appellate, or both, is not declared. All this seems to be left to the
discretion of the legislature. And this being the case, I perceive at
present no impediment to the establishment of an appeal from the State
courts to the subordinate national tribunals; and many advantages
attending the power of doing it may be imagined. It would diminish the
motives to the multiplication of federal courts, and would admit of
arrangements calculated to contract the appellate jurisdiction of the
Supreme Court. The State tribunals may then be left with a more entire
charge of federal causes; and appeals, in most cases in which they may
be deemed proper, instead of being carried to the Supreme Court, may be
made to lie from the State courts to district courts of the Union.

PUBLIUS.

 [1] No. 32.

 [2] Section 8, Article 1.




THE FEDERALIST.
No. LXXXIII.

The Judiciary Continued in Relation to Trial by Jury

From MCLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

The objection to the plan of the convention, which has met with most
success in this State, and perhaps in several of the other States, is
THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION for the trial
by jury in civil cases. The disingenuous form in which this objection
is usually stated has been repeatedly adverted to and exposed, but
continues to be pursued in all the conversations and writings of the
opponents of the plan. The mere silence of the Constitution in regard
to CIVIL CAUSES, is represented as an abolition of the trial by jury,
and the declamations to which it has afforded a pretext are artfully
calculated to induce a persuasion that this pretended abolition is
complete and universal, extending not only to every species of civil,
but even to CRIMINAL CAUSES. To argue with respect to the latter would,
however, be as vain and fruitless as to attempt the serious proof of
the EXISTENCE of MATTER, or to demonstrate any of those propositions
which, by their own internal evidence, force conviction, when expressed
in language adapted to convey their meaning.

With regard to civil causes, subtleties almost too contemptible for
refutation have been employed to countenance the surmise that a thing
which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of
discernment must at once perceive the wide difference between SILENCE
and ABOLITION. But as the inventors of this fallacy have attempted to
support it by certain LEGAL MAXIMS of interpretation, which they have
perverted from their true meaning, it may not be wholly useless to
explore the ground they have taken.

The maxims on which they rely are of this nature: “A specification of
particulars is an exclusion of generals”; or, “The expression of one
thing is the exclusion of another.” Hence, say they, as the
Constitution has established the trial by jury in criminal cases, and
is silent in respect to civil, this silence is an implied prohibition
of trial by jury in regard to the latter.

The rules of legal interpretation are rules of COMMONSENSE, adopted by
the courts in the construction of the laws. The true test, therefore,
of a just application of them is its conformity to the source from
which they are derived. This being the case, let me ask if it is
consistent with common-sense to suppose that a provision obliging the
legislative power to commit the trial of criminal causes to juries, is
a privation of its right to authorize or permit that mode of trial in
other cases? Is it natural to suppose, that a command to do one thing
is a prohibition to the doing of another, which there was a previous
power to do, and which is not incompatible with the thing commanded to
be done? If such a supposition would be unnatural and unreasonable, it
cannot be rational to maintain that an injunction of the trial by jury
in certain cases is an interdiction of it in others.

A power to constitute courts is a power to prescribe the mode of trial;
and consequently, if nothing was said in the Constitution on the
subject of juries, the legislature would be at liberty either to adopt
that institution or to let it alone. This discretion, in regard to
criminal causes, is abridged by the express injunction of trial by jury
in all such cases; but it is, of course, left at large in relation to
civil causes, there being a total silence on this head. The
specification of an obligation to try all criminal causes in a
particular mode, excludes indeed the obligation or necessity of
employing the same mode in civil causes, but does not abridge THE POWER
of the legislature to exercise that mode if it should be thought
proper. The pretense, therefore, that the national legislature would
not be at full liberty to submit all the civil causes of federal
cognizance to the determination of juries, is a pretense destitute of
all just foundation.

From these observations this conclusion results: that the trial by jury
in civil cases would not be abolished; and that the use attempted to be
made of the maxims which have been quoted, is contrary to reason and
common-sense, and therefore not admissible. Even if these maxims had a
precise technical sense, corresponding with the idea of those who
employ them upon the present occasion, which, however, is not the case,
they would still be inapplicable to a constitution of government. In
relation to such a subject, the natural and obvious sense of its
provisions, apart from any technical rules, is the true criterion of
construction.

Having now seen that the maxims relied upon will not bear the use made
of them, let us endeavor to ascertain their proper use and true
meaning. This will be best done by examples. The plan of the convention
declares that the power of Congress, or, in other words, of the
NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This
specification of particulars evidently excludes all pretension to a
general legislative authority, because an affirmative grant of special
powers would be absurd, as well as useless, if a general authority was
intended.

In like manner the judicial authority of the federal judicatures is
declared by the Constitution to comprehend certain cases particularly
specified. The expression of those cases marks the precise limits,
beyond which the federal courts cannot extend their jurisdiction,
because the objects of their cognizance being enumerated, the
specification would be nugatory if it did not exclude all ideas of more
extensive authority.

These examples are sufficient to elucidate the maxims which have been
mentioned, and to designate the manner in which they should be used.
But that there may be no misapprehensions upon this subject, I shall
add one case more, to demonstrate the proper use of these maxims, and
the abuse which has been made of them.

Let us suppose that by the laws of this State a married woman was
incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of her
property by deed executed in the presence of a magistrate. In such a
case there can be no doubt but the specification would amount to an
exclusion of any other mode of conveyance, because the woman having no
previous power to alienate her property, the specification determines
the particular mode which she is, for that purpose, to avail herself
of. But let us further suppose that in a subsequent part of the same
act it should be declared that no woman should dispose of any estate of
a determinate value without the consent of three of her nearest
relations, signified by their signing the deed; could it be inferred
from this regulation that a married woman might not procure the
approbation of her relations to a deed for conveying property of
inferior value? The position is too absurd to merit a refutation, and
yet this is precisely the position which those must establish who
contend that the trial by juries in civil cases is abolished, because
it is expressly provided for in cases of a criminal nature.

From these observations it must appear unquestionably true, that trial
by jury is in no case abolished by the proposed Constitution, and it is
equally true, that in those controversies between individuals in which
the great body of the people are likely to be interested, that
institution will remain precisely in the same situation in which it is
placed by the State constitutions, and will be in no degree altered or
influenced by the adoption of the plan under consideration. The
foundation of this assertion is, that the national judiciary will have
no cognizance of them, and of course they will remain determinable as
heretofore by the State courts only, and in the manner which the State
constitutions and laws prescribe. All land causes, except where claims
under the grants of different States come into question, and all other
controversies between the citizens of the same State, unless where they
depend upon positive violations of the articles of union, by acts of
the State legislatures, will belong exclusively to the jurisdiction of
the State tribunals. Add to this, that admiralty causes, and almost all
those which are of equity jurisdiction, are determinable under our own
government without the intervention of a jury, and the inference from
the whole will be, that this institution, as it exists with us at
present, cannot possibly be affected to any great extent by the
proposed alteration in our system of government.

The friends and adversaries of the plan of the convention, if they
agree in nothing else, concur at least in the value they set upon the
trial by jury; or if there is any difference between them it consists
in this: the former regard it as a valuable safeguard to liberty; the
latter represent it as the very palladium of free government. For my
own part, the more the operation of the institution has fallen under my
observation, the more reason I have discovered for holding it in high
estimation; and it would be altogether superfluous to examine to what
extent it deserves to be esteemed useful or essential in a
representative republic, or how much more merit it may be entitled to,
as a defense against the oppressions of an hereditary monarch, than as
a barrier to the tyranny of popular magistrates in a popular
government. Discussions of this kind would be more curious than
beneficial, as all are satisfied of the utility of the institution, and
of its friendly aspect to liberty. But I must acknowledge that I cannot
readily discern the inseparable connection between the existence of
liberty, and the trial by jury in civil cases. Arbitrary impeachments,
arbitrary methods of prosecuting pretended offenses, and arbitrary
punishments upon arbitrary convictions, have ever appeared to me to be
the great engines of judicial despotism; and these have all relation to
criminal proceedings. The trial by jury in criminal cases, aided by the
habeas-corpus act, seems therefore to be alone concerned in the
question. And both of these are provided for, in the most ample manner,
in the plan of the convention.

It has been observed, that trial by jury is a safeguard against an
oppressive exercise of the power of taxation. This observation deserves
to be canvassed.

It is evident that it can have no influence upon the legislature, in
regard to the AMOUNT of taxes to be laid, to the OBJECTS upon which
they are to be imposed, or to the RULE by which they are to be
apportioned. If it can have any influence, therefore, it must be upon
the mode of collection, and the conduct of the officers intrusted with
the execution of the revenue laws.

As to the mode of collection in this State, under our own Constitution,
the trial by jury is in most cases out of use. The taxes are usually
levied by the more summary proceeding of distress and sale, as in cases
of rent. And it is acknowledged on all hands, that this is essential to
the efficacy of the revenue laws. The dilatory course of a trial at law
to recover the taxes imposed on individuals, would neither suit the
exigencies of the public nor promote the convenience of the citizens.
It would often occasion an accumulation of costs, more burdensome than
the original sum of the tax to be levied.

And as to the conduct of the officers of the revenue, the provision in
favor of trial by jury in criminal cases, will afford the security
aimed at. Wilful abuses of a public authority, to the oppression of the
subject, and every species of official extortion, are offenses against
the government, for which the persons who commit them may be indicted
and punished according to the circumstances of the case.

The excellence of the trial by jury in civil cases appears to depend on
circumstances foreign to the preservation of liberty. The strongest
argument in its favor is, that it is a security against corruption. As
there is always more time and better opportunity to tamper with a
standing body of magistrates than with a jury summoned for the
occasion, there is room to suppose that a corrupt influence would more
easily find its way to the former than to the latter. The force of this
consideration is, however, diminished by others. The sheriff, who is
the summoner of ordinary juries, and the clerks of courts, who have the
nomination of special juries, are themselves standing officers, and,
acting individually, may be supposed more accessible to the touch of
corruption than the judges, who are a collective body. It is not
difficult to see, that it would be in the power of those officers to
select jurors who would serve the purpose of the party as well as a
corrupted bench. In the next place, it may fairly be supposed, that
there would be less difficulty in gaining some of the jurors
promiscuously taken from the public mass, than in gaining men who had
been chosen by the government for their probity and good character. But
making every deduction for these considerations, the trial by jury must
still be a valuable check upon corruption. It greatly multiplies the
impediments to its success. As matters now stand, it would be necessary
to corrupt both court and jury; for where the jury have gone evidently
wrong, the court will generally grant a new trial, and it would be in
most cases of little use to practice upon the jury, unless the court
could be likewise gained. Here then is a double security; and it will
readily be perceived that this complicated agency tends to preserve the
purity of both institutions. By increasing the obstacles to success, it
discourages attempts to seduce the integrity of either. The temptations
to prostitution which the judges might have to surmount, must certainly
be much fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.

Notwithstanding, therefore, the doubts I have expressed, as to the
essentiality of trial by jury in civil cases to liberty, I admit that
it is in most cases, under proper regulations, an excellent method of
determining questions of property; and that on this account alone it
would be entitled to a constitutional provision in its favor if it were
possible to fix the limits within which it ought to be comprehended.
There is, however, in all cases, great difficulty in this; and men not
blinded by enthusiasm must be sensible that in a federal government,
which is a composition of societies whose ideas and institutions in
relation to the matter materially vary from each other, that difficulty
must be not a little augmented. For my own part, at every new view I
take of the subject, I become more convinced of the reality of the
obstacles which, we are authoritatively informed, prevented the
insertion of a provision on this head in the plan of the convention.

The great difference between the limits of the jury trial in different
States is not generally understood; and as it must have considerable
influence on the sentence we ought to pass upon the omission complained
of in regard to this point, an explanation of it is necessary. In this
State, our judicial establishments resemble, more nearly than in any
other, those of Great Britain. We have courts of common law, courts of
probates (analogous in certain matters to the spiritual courts in
England), a court of admiralty and a court of chancery. In the courts
of common law only, the trial by jury prevails, and this with some
exceptions. In all the others a single judge presides, and proceeds in
general either according to the course of the canon or civil law,
without the aid of a jury.[1] In New Jersey, there is a court of
chancery which proceeds like ours, but neither courts of admiralty nor
of probates, in the sense in which these last are established with us.
In that State the courts of common law have the cognizance of those
causes which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New Jersey
than in New York. In Pennsylvania, this is perhaps still more the case,
for there is no court of chancery in that State, and its common-law
courts have equity jurisdiction. It has a court of admiralty, but none
of probates, at least on the plan of ours. Delaware has in these
respects imitated Pennsylvania. Maryland approaches more nearly to New
York, as does also Virginia, except that the latter has a plurality of
chancellors. North Carolina bears most affinity to Pennsylvania; South
Carolina to Virginia. I believe, however, that in some of those States
which have distinct courts of admiralty, the causes depending in them
are triable by juries. In Georgia there are none but common-law courts,
and an appeal of course lies from the verdict of one jury to another,
which is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct courts
either of chancery or of admiralty, and their courts of probates have
no jurisdiction of causes. Their common-law courts have admiralty and,
to a certain extent, equity jurisdiction. In cases of importance, their
General Assembly is the only court of chancery. In Connecticut,
therefore, the trial by jury extends in PRACTICE further than in any
other State yet mentioned. Rhode Island is, I believe, in this
particular, pretty much in the situation of Connecticut. Massachusetts
and New Hampshire, in regard to the blending of law, equity, and
admiralty jurisdictions, are in a similar predicament. In the four
Eastern States, the trial by jury not only stands upon a broader
foundation than in the other States, but it is attended with a
peculiarity unknown, in its full extent, to any of them. There is an
appeal OF COURSE from one jury to another, till there have been two
verdicts out of three on one side.

From this sketch it appears that there is a material diversity, as well
in the modification as in the extent of the institution of trial by
jury in civil cases, in the several States; and from this fact these
obvious reflections flow: first, that no general rule could have been
fixed upon by the convention which would have corresponded with the
circumstances of all the States; and secondly, that more or at least as
much might have been hazarded by taking the system of any one State for
a standard, as by omitting a provision altogether and leaving the
matter, as has been done, to legislative regulation.

The propositions which have been made for supplying the omission have
rather served to illustrate than to obviate the difficulty of the
thing. The minority of Pennsylvania have proposed this mode of
expression for the purpose “Trial by jury shall be as heretofore” and
this I maintain would be senseless and nugatory. The United States, in
their united or collective capacity, are the OBJECT to which all
general provisions in the Constitution must necessarily be construed to
refer. Now it is evident that though trial by jury, with various
limitations, is known in each State individually, yet in the United
States, AS SUCH, it is at this time altogether unknown, because the
present federal government has no judiciary power whatever; and
consequently there is no proper antecedent or previous establishment to
which the term HERETOFORE could relate. It would therefore be destitute
of a precise meaning, and inoperative from its uncertainty.

As, on the one hand, the form of the provision would not fulfil the
intent of its proposers, so, on the other, if I apprehend that intent
rightly, it would be in itself inexpedient. I presume it to be, that
causes in the federal courts should be tried by jury, if, in the State
where the courts sat, that mode of trial would obtain in a similar case
in the State courts; that is to say, admiralty causes should be tried
in Connecticut by a jury, in New York without one. The capricious
operation of so dissimilar a method of trial in the same cases, under
the same government, is of itself sufficient to indispose every
wellregulated judgment towards it. Whether the cause should be tried
with or without a jury, would depend, in a great number of cases, on
the accidental situation of the court and parties.

But this is not, in my estimation, the greatest objection. I feel a
deep and deliberate conviction that there are many cases in which the
trial by jury is an ineligible one. I think it so particularly in cases
which concern the public peace with foreign nations that is, in most
cases where the question turns wholly on the laws of nations. Of this
nature, among others, are all prize causes. Juries cannot be supposed
competent to investigations that require a thorough knowledge of the
laws and usages of nations; and they will sometimes be under the
influence of impressions which will not suffer them to pay sufficient
regard to those considerations of public policy which ought to guide
their inquiries. There would of course be always danger that the rights
of other nations might be infringed by their decisions, so as to afford
occasions of reprisal and war. Though the proper province of juries be
to determine matters of fact, yet in most cases legal consequences are
complicated with fact in such a manner as to render a separation
impracticable.

It will add great weight to this remark, in relation to prize causes,
to mention that the method of determining them has been thought worthy
of particular regulation in various treaties between different powers
of Europe, and that, pursuant to such treaties, they are determinable
in Great Britain, in the last resort, before the king himself, in his
privy council, where the fact, as well as the law, undergoes a
re-examination. This alone demonstrates the impolicy of inserting a
fundamental provision in the Constitution which would make the State
systems a standard for the national government in the article under
consideration, and the danger of encumbering the government with any
constitutional provisions the propriety of which is not indisputable.

My convictions are equally strong that great advantages result from the
separation of the equity from the law jurisdiction, and that the causes
which belong to the former would be improperly committed to juries. The
great and primary use of a court of equity is to give relief IN
EXTRAORDINARY CASES, which are EXCEPTIONS[2] to general rules. To unite
the jurisdiction of such cases with the ordinary jurisdiction, must
have a tendency to unsettle the general rules, and to subject every
case that arises to a SPECIAL determination; while a separation of the
one from the other has the contrary effect of rendering one a sentinel
over the other, and of keeping each within the expedient limits.
Besides this, the circumstances that constitute cases proper for courts
of equity are in many instances so nice and intricate, that they are
incompatible with the genius of trials by jury. They require often such
long, deliberate, and critical investigation as would be impracticable
to men called from their occupations, and obliged to decide before they
were permitted to return to them. The simplicity and expedition which
form the distinguishing characters of this mode of trial require that
the matter to be decided should be reduced to some single and obvious
point; while the litigations usual in chancery frequently comprehend a
long train of minute and independent particulars.

It is true that the separation of the equity from the legal
jurisdiction is peculiar to the English system of jurisprudence: which
is the model that has been followed in several of the States. But it is
equally true that the trial by jury has been unknown in every case in
which they have been united. And the separation is essential to the
preservation of that institution in its pristine purity. The nature of
a court of equity will readily permit the extension of its jurisdiction
to matters of law; but it is not a little to be suspected, that the
attempt to extend the jurisdiction of the courts of law to matters of
equity will not only be unproductive of the advantages which may be
derived from courts of chancery, on the plan upon which they are
established in this State, but will tend gradually to change the nature
of the courts of law, and to undermine the trial by jury, by
introducing questions too complicated for a decision in that mode.

These appeared to be conclusive reasons against incorporating the
systems of all the States, in the formation of the national judiciary,
according to what may be conjectured to have been the attempt of the
Pennsylvania minority. Let us now examine how far the proposition of
Massachusetts is calculated to remedy the supposed defect.

It is in this form: “In civil actions between citizens of different
States, every issue of fact, arising in ACTIONS AT COMMON LAW, may be
tried by a jury if the parties, or either of them request it.”

This, at best, is a proposition confined to one description of causes;
and the inference is fair, either that the Massachusetts convention
considered that as the only class of federal causes, in which the trial
by jury would be proper; or that if desirous of a more extensive
provision, they found it impracticable to devise one which would
properly answer the end. If the first, the omission of a regulation
respecting so partial an object can never be considered as a material
imperfection in the system. If the last, it affords a strong
corroboration of the extreme difficulty of the thing.

But this is not all: if we advert to the observations already made
respecting the courts that subsist in the several States of the Union,
and the different powers exercised by them, it will appear that there
are no expressions more vague and indeterminate than those which have
been employed to characterize THAT species of causes which it is
intended shall be entitled to a trial by jury. In this State, the
boundaries between actions at common law and actions of equitable
jurisdiction, are ascertained in conformity to the rules which prevail
in England upon that subject. In many of the other States the
boundaries are less precise. In some of them every cause is to be tried
in a court of common law, and upon that foundation every action may be
considered as an action at common law, to be determined by a jury, if
the parties, or either of them, choose it. Hence the same irregularity
and confusion would be introduced by a compliance with this
proposition, that I have already noticed as resulting from the
regulation proposed by the Pennsylvania minority. In one State a cause
would receive its determination from a jury, if the parties, or either
of them, requested it; but in another State, a cause exactly similar to
the other, must be decided without the intervention of a jury, because
the State judicatories varied as to common-law jurisdiction.

It is obvious, therefore, that the Massachusetts proposition, upon this
subject cannot operate as a general regulation, until some uniform
plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise a
plan of that kind is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely
difficult, if not impossible, to suggest any general regulation that
would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.

It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to be a
good one, as a standard for the United States? I answer that it is not
very probable the other States would entertain the same opinion of our
institutions as we do ourselves. It is natural to suppose that they are
hitherto more attached to their own, and that each would struggle for
the preference. If the plan of taking one State as a model for the
whole had been thought of in the convention, it is to be presumed that
the adoption of it in that body would have been rendered difficult by
the predilection of each representation in favor of its own government;
and it must be uncertain which of the States would have been taken as
the model. It has been shown that many of them would be improper ones.
And I leave it to conjecture, whether, under all circumstances, it is
most likely that New York, or some other State, would have been
preferred. But admit that a judicious selection could have been
effected in the convention, still there would have been great danger of
jealousy and disgust in the other States, at the partiality which had
been shown to the institutions of one. The enemies of the plan would
have been furnished with a fine pretext for raising a host of local
prejudices against it, which perhaps might have hazarded, in no
inconsiderable degree, its final establishment.

To avoid the embarrassments of a definition of the cases which the
trial by jury ought to embrace, it is sometimes suggested by men of
enthusiastic tempers, that a provision might have been inserted for
establishing it in all cases whatsoever. For this I believe, no
precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition of
the minority of Pennsylvania, must satisfy every sober mind that the
establishment of the trial by jury in ALL cases would have been an
unpardonable error in the plan.

In short, the more it is considered the more arduous will appear the
task of fashioning a provision in such a form as not to express too
little to answer the purpose, or too much to be advisable; or which
might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.

I cannot but persuade myself, on the other hand, that the different
lights in which the subject has been placed in the course of these
observations, will go far towards removing in candid minds the
apprehensions they may have entertained on the point. They have tended
to show that the security of liberty is materially concerned only in
the trial by jury in criminal cases, which is provided for in the most
ample manner in the plan of the convention; that even in far the
greatest proportion of civil cases, and those in which the great body
of the community is interested, that mode of trial will remain in its
full force, as established in the State constitutions, untouched and
unaffected by the plan of the convention; that it is in no case
abolished[3] by that plan; and that there are great if not
insurmountable difficulties in the way of making any precise and proper
provision for it in a Constitution for the United States.

The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases, and
will be the most ready to admit that the changes which are continually
happening in the affairs of society may render a different mode of
determining questions of property preferable in many cases in which
that mode of trial now prevails. For my part, I acknowledge myself to
be convinced that even in this State it might be advantageously
extended to some cases to which it does not at present apply, and might
as advantageously be abridged in others. It is conceded by all
reasonable men that it ought not to obtain in all cases. The examples
of innovations which contract its ancient limits, as well in these
States as in Great Britain, afford a strong presumption that its former
extent has been found inconvenient, and give room to suppose that
future experience may discover the propriety and utility of other
exceptions. I suspect it to be impossible in the nature of the thing to
fix the salutary point at which the operation of the institution ought
to stop, and this is with me a strong argument for leaving the matter
to the discretion of the legislature.

This is now clearly understood to be the case in Great Britain, and it
is equally so in the State of Connecticut; and yet it may be safely
affirmed that more numerous encroachments have been made upon the trial
by jury in this State since the Revolution, though provided for by a
positive article of our constitution, than has happened in the same
time either in Connecticut or Great Britain. It may be added that these
encroachments have generally originated with the men who endeavor to
persuade the people they are the warmest defenders of popular liberty,
but who have rarely suffered constitutional obstacles to arrest them in
a favorite career. The truth is that the general GENIUS of a government
is all that can be substantially relied upon for permanent effects.
Particular provisions, though not altogether useless, have far less
virtue and efficacy than are commonly ascribed to them; and the want of
them will never be, with men of sound discernment, a decisive objection
to any plan which exhibits the leading characters of a good government.

It certainly sounds not a little harsh and extraordinary to affirm that
there is no security for liberty in a Constitution which expressly
establishes the trial by jury in criminal cases, because it does not do
it in civil also; while it is a notorious fact that Connecticut, which
has been always regarded as the most popular State in the Union, can
boast of no constitutional provision for either.

PUBLIUS.

 [1] It has been erroneously insinuated, with regard to the court of
 chancery, that this court generally tries disputed facts by a jury.
 The truth is, that references to a jury in that court rarely happen,
 and are in no case necessary but where the validity of a devise of
 land comes into question.

 [2] It is true that the principles by which that relief is governed
 are now reduced to a regular system; but it is not the less true that
 they are in the main applicable to SPECIAL circumstances, which form
 exceptions to general rules.

 [3] _Vide_ No. 81, in which the supposition of its being abolished by
 the appellate jurisdiction in matters of fact being vested in the
 Supreme Court, is examined and refuted.




THE FEDERALIST.
No. LXXXIV.

Certain General and Miscellaneous Objections to the Constitution
Considered and Answered

From McLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

In the course of the foregoing review of the Constitution, I have taken
notice of, and endeavored to answer most of the objections which have
appeared against it. There, however, remain a few which either did not
fall naturally under any particular head or were forgotten in their
proper places. These shall now be discussed; but as the subject has
been drawn into great length, I shall so far consult brevity as to
comprise all my observations on these miscellaneous points in a single
paper.

The most considerable of the remaining objections is that the plan of
the convention contains no bill of rights. Among other answers given to
this, it has been upon different occasions remarked that the
constitutions of several of the States are in a similar predicament. I
add that New York is of the number. And yet the opposers of the new
system, in this State, who profess an unlimited admiration for its
constitution, are among the most intemperate partisans of a bill of
rights. To justify their zeal in this matter, they allege two things:
one is that, though the constitution of New York has no bill of rights
prefixed to it, yet it contains, in the body of it, various provisions
in favor of particular privileges and rights, which, in substance
amount to the same thing; the other is, that the Constitution adopts,
in their full extent, the common and statute law of Great Britain, by
which many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention
contains, as well as the constitution of this State, a number of such
provisions.

Independent of those which relate to the structure of the government,
we find the following: Article 1, section 3, clause 7 “Judgment in
cases of impeachment shall not extend further than to removal from
office, and disqualification to hold and enjoy any office of honor,
trust, or profit under the United States; but the party convicted
shall, nevertheless, be liable and subject to indictment, trial,
judgment, and punishment according to law.” Section 9, of the same
article, clause 2 “The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion the public
safety may require it.” Clause 3 “No bill of attainder or ex-post-facto
law shall be passed.” Clause 7 “No title of nobility shall be granted
by the United States; and no person holding any office of profit or
trust under them, shall, without the consent of the Congress, accept of
any present, emolument, office, or title of any kind whatever, from any
king, prince, or foreign state.” Article 3, section 2, clause 3 “The
trial of all crimes, except in cases of impeachment, shall be by jury;
and such trial shall be held in the State where the said crimes shall
have been committed; but when not committed within any State, the trial
shall be at such place or places as the Congress may by law have
directed.” Section 3, of the same article “Treason against the United
States shall consist only in levying war against them, or in adhering
to their enemies, giving them aid and comfort. No person shall be
convicted of treason, unless on the testimony of two witnesses to the
same overt act, or on confession in open court.” And clause 3, of the
same section “The Congress shall have power to declare the punishment
of treason; but no attainder of treason shall work corruption of blood,
or forfeiture, except during the life of the person attainted.”

It may well be a question, whether these are not, upon the whole, of
equal importance with any which are to be found in the constitution of
this State. The establishment of the writ of habeas corpus, the
prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH
WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps
greater securities to liberty and republicanism than any it contains.
The creation of crimes after the commission of the fact, or, in other
words, the subjecting of men to punishment for things which, when they
were done, were breaches of no law, and the practice of arbitrary
imprisonments, have been, in all ages, the favorite and most formidable
instruments of tyranny. The observations of the judicious
Blackstone,[1] in reference to the latter, are well worthy of recital:
“To bereave a man of life, Usays he,e or by violence to confiscate his
estate, without accusation or trial, would be so gross and notorious an
act of despotism, as must at once convey the alarm of tyranny
throughout the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore A MORE DANGEROUS ENGINE
of arbitrary government.” And as a remedy for this fatal evil he is
everywhere peculiarly emphatical in his encomiums on the habeas-corpus
act, which in one place he calls “the BULWARK of the British
Constitution.”[2]

Nothing need be said to illustrate the importance of the prohibition of
titles of nobility. This may truly be denominated the corner-stone of
republican government; for so long as they are excluded, there can
never be serious danger that the government will be any other than that
of the people.

To the second that is, to the pretended establishment of the common and
state law by the Constitution, I answer, that they are expressly made
subject “to such alterations and provisions as the legislature shall
from time to time make concerning the same.” They are therefore at any
moment liable to repeal by the ordinary legislative power, and of
course have no constitutional sanction. The only use of the declaration
was to recognize the ancient law and to remove doubts which might have
been occasioned by the Revolution. This consequently can be considered
as no part of a declaration of rights, which under our constitutions
must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in
their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was MAGNA CHARTA, obtained
by the barons, sword in hand, from King John. Such were the subsequent
confirmations of that charter by succeeding princes. Such was the
PETITION OF RIGHT assented to by Charles I., in the beginning of his
reign. Such, also, was the Declaration of Right presented by the Lords
and Commons to the Prince of Orange in 1688, and afterwards thrown into
the form of an act of parliament called the Bill of Rights. It is
evident, therefore, that, according to their primitive signification,
they have no application to constitutions professedly founded upon the
power of the people, and executed by their immediate representatives
and servants. Here, in strictness, the people surrender nothing; and as
they retain every thing they have no need of particular reservations.
“WE, THE PEOPLE of the United States, to secure the blessings of
liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this
Constitution for the United States of America.” Here is a better
recognition of popular rights, than volumes of those aphorisms which
make the principal figure in several of our State bills of rights, and
which would sound much better in a treatise of ethics than in a
constitution of government.

But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every
species of personal and private concerns. If, therefore, the loud
clamors against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them contain
all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the
extent in which they are contended for, are not only unnecessary in the
proposed Constitution, but would even be dangerous. They would contain
various exceptions to powers not granted; and, on this very account,
would afford a colorable pretext to claim more than were granted. For
why declare that things shall not be done which there is no power to
do? Why, for instance, should it be said that the liberty of the press
shall not be restrained, when no power is given by which restrictions
may be imposed? I will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power. They
might urge with a semblance of reason, that the Constitution ought not
to be charged with the absurdity of providing against the abuse of an
authority which was not given, and that the provision against
restraining the liberty of the press afforded a clear implication, that
a power to prescribe proper regulations concerning it was intended to
be vested in the national government. This may serve as a specimen of
the numerous handles which would be given to the doctrine of
constructive powers, by the indulgence of an injudicious zeal for bills
of rights.

On the subject of the liberty of the press, as much as has been said, I
cannot forbear adding a remark or two: in the first place, I observe,
that there is not a syllable concerning it in the constitution of this
State; in the next, I contend, that whatever has been said about it in
that of any other State, amounts to nothing. What signifies a
declaration, that “the liberty of the press shall be inviolably
preserved”? What is the liberty of the press? Who can give it any
definition which would not leave the utmost latitude for evasion? I
hold it to be impracticable; and from this I infer, that its security,
whatever fine declarations may be inserted in any constitution
respecting it, must altogether depend on public opinion, and on the
general spirit of the people and of the government.[3] And here, after
all, as is intimated upon another occasion, must we seek for the only
solid basis of all our rights.

There remains but one other view of this matter to conclude the point.
The truth is, after all the declamations we have heard, that the
Constitution is itself, in every rational sense, and to every useful
purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain
form its Constitution, and conversely the constitution of each State is
its bill of rights. And the proposed Constitution, if adopted, will be
the bill of rights of the Union. Is it one object of a bill of rights
to declare and specify the political privileges of the citizens in the
structure and administration of the government? This is done in the
most ample and precise manner in the plan of the convention;
comprehending various precautions for the public security, which are
not to be found in any of the State constitutions. Is another object of
a bill of rights to define certain immunities and modes of proceeding,
which are relative to personal and private concerns? This we have seen
has also been attended to, in a variety of cases, in the same plan.
Adverting therefore to the substantial meaning of a bill of rights, it
is absurd to allege that it is not to be found in the work of the
convention. It may be said that it does not go far enough, though it
will not be easy to make this appear; but it can with no propriety be
contended that there is no such thing. It certainly must be immaterial
what mode is observed as to the order of declaring the rights of the
citizens, if they are to be found in any part of the instrument which
establishes the government. And hence it must be apparent, that much of
what has been said on this subject rests merely on verbal and nominal
distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of
its repetition, it is to be presumed is relied on, is of this nature:
“It is improper,” say the objectors, “to confer such large powers, as
are proposed, upon the national government, because the seat of that
government must of necessity be too remote from many of the States to
admit of a proper knowledge on the part of the constituent, of the
conduct of the representative body.” This argument, if it proves any
thing, proves that there ought to be no general government whatever.
For the powers which, it seems to be agreed on all hands, ought to be
vested in the Union, cannot be safely intrusted to a body which is not
under every requisite control. But there are satisfactory reasons to
show that the objection is in reality not well founded. There is in
most of the arguments which relate to distance a palpable illusion of
the imagination. What are the sources of information by which the
people in Montgomery County must regulate their judgment of the conduct
of their representatives in the State legislature? Of personal
observation they can have no benefit. This is confined to the citizens
on the spot. They must therefore depend on the information of
intelligent men, in whom they confide; and how must these men obtain
their information? Evidently from the complexion of public measures,
from the public prints, from correspondences with their
representatives, and with other persons who reside at the place of
their deliberations. This does not apply to Montgomery County only, but
to all the counties at any considerable distance from the seat of
government.

It is equally evident that the same sources of information would be
open to the people in relation to the conduct of their representatives
in the general government, and the impediments to a prompt
communication which distance may be supposed to create, will be
overbalanced by the effects of the vigilance of the State governments.
The executive and legislative bodies of each State will be so many
sentinels over the persons employed in every department of the national
administration; and as it will be in their power to adopt and pursue a
regular and effectual system of intelligence, they can never be at a
loss to know the behavior of those who represent their constituents in
the national councils, and can readily communicate the same knowledge
to the people. Their disposition to apprise the community of whatever
may prejudice its interests from another quarter, may be relied upon,
if it were only from the rivalship of power. And we may conclude with
the fullest assurance that the people, through that channel, will be
better informed of the conduct of their national representatives, than
they can be by any means they now possess of that of their State
representatives.

It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions that
affect the general liberty and prosperity, have the same interest with
those who are at a distance, and that they will stand ready to sound
the alarm when necessary, and to point out the actors in any pernicious
project. The public papers will be expeditious messengers of
intelligence to the most remote inhabitants of the Union.

Among the many curious objections which have appeared against the
proposed Constitution, the most extraordinary and the least colorable
is derived from the want of some provision respecting the debts due TO
the United States. This has been represented as a tacit relinquishment
of those debts, and as a wicked contrivance to screen public
defaulters. The newspapers have teemed with the most inflammatory
railings on this head; yet there is nothing clearer than that the
suggestion is entirely void of foundation, the offspring of extreme
ignorance or extreme dishonesty. In addition to the remarks I have made
upon the subject in another place, I shall only observe that as it is a
plain dictate of common-sense, so it is also an established doctrine of
political law, that “STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE
DISCHARGED FROM ANY OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF
THEIR CIVIL GOVERNMENT.”[4]

The last objection of any consequence, which I at present recollect,
turns upon the article of expense. If it were even true, that the
adoption of the proposed government would occasion a considerable
increase of expense, it would be an objection that ought to have no
weight against the plan.

The great bulk of the citizens of America are with reason convinced,
that Union is the basis of their political happiness. Men of sense of
all parties now, with few exceptions, agree that it cannot be preserved
under the present system, nor without radical alterations; that new and
extensive powers ought to be granted to the national head, and that
these require a different organization of the federal government a
single body being an unsafe depositary of such ample authorities. In
conceding all this, the question of expense must be given up; for it is
impossible, with any degree of safety, to narrow the foundation upon
which the system is to stand. The two branches of the legislature are,
in the first instance, to consist of only sixty-five persons, which is
the same number of which Congress, under the existing Confederation,
may be composed. It is true that this number is intended to be
increased; but this is to keep pace with the progress of the population
and resources of the country. It is evident that a less number would,
even in the first instance, have been unsafe, and that a continuance of
the present number would, in a more advanced stage of population, be a
very inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source
indicated, is the multiplication of offices under the new government.
Let us examine this a little.

It is evident that the principal departments of the administration
under the present government, are the same which will be required under
the new. There are now a Secretary of War, a Secretary of Foreign
Affairs, a Secretary for Domestic Affairs, a Board of Treasury,
consisting of three persons, a Treasurer, assistants, clerks, etc.
These officers are indispensable under any system, and will suffice
under the new as well as the old. As to ambassadors and other ministers
and agents in foreign countries, the proposed Constitution can make no
other difference than to render their characters, where they reside,
more respectable, and their services more useful. As to persons to be
employed in the collection of the revenues, it is unquestionably true
that these will form a very considerable addition to the number of
federal officers; but it will not follow that this will occasion an
increase of public expense. It will be in most cases nothing more than
an exchange of State for national officers. In the collection of all
duties, for instance, the persons employed will be wholly of the latter
description. The States individually will stand in no need of any for
this purpose. What difference can it make in point of expense to pay
officers of the customs appointed by the State or by the United States?
There is no good reason to suppose that either the number or the
salaries of the latter will be greater than those of the former.

Where then are we to seek for those additional articles of expense
which are to swell the account to the enormous size that has been
represented to us? The chief item which occurs to me respects the
support of the judges of the United States. I do not add the President,
because there is now a president of Congress, whose expenses may not be
far, if any thing, short of those which will be incurred on account of
the President of the United States. The support of the judges will
clearly be an extra expense, but to what extent will depend on the
particular plan which may be adopted in regard to this matter. But upon
no reasonable plan can it amount to a sum which will be an object of
material consequence.

Let us now see what there is to counterbalance any extra expense that
may attend the establishment of the proposed government. The first
thing which presents itself is that a great part of the business which
now keeps Congress sitting through the year will be transacted by the
President. Even the management of foreign negotiations will naturally
devolve upon him, according to general principles concerted with the
Senate, and subject to their final concurrence. Hence it is evident
that a portion of the year will suffice for the session of both the
Senate and the House of Representatives; we may suppose about a fourth
for the latter and a third, or perhaps half, for the former. The extra
business of treaties and appointments may give this extra occupation to
the Senate. From this circumstance we may infer that, until the House
of Representatives shall be increased greatly beyond its present
number, there will be a considerable saving of expense from the
difference between the constant session of the present and the
temporary session of the future Congress.

But there is another circumstance of great importance in the view of
economy. The business of the United States has hitherto occupied the
State legislatures, as well as Congress. The latter has made
requisitions which the former have had to provide for. Hence it has
happened that the sessions of the State legislatures have been
protracted greatly beyond what was necessary for the execution of the
mere local business of the States. More than half their time has been
frequently employed in matters which related to the United States. Now
the members who compose the legislatures of the several States amount
to two thousand and upwards, which number has hitherto performed what
under the new system will be done in the first instance by sixty-five
persons, and probably at no future period by above a fourth or fifth of
that number. The Congress under the proposed government will do all the
business of the United States themselves, without the intervention of
the State legislatures, who thenceforth will have only to attend to the
affairs of their particular States, and will not have to sit in any
proportion as long as they have heretofore done. This difference in the
time of the sessions of the State legislatures will be clear gain, and
will alone form an article of saving, which may be regarded as an
equivalent for any additional objects of expense that may be occasioned
by the adoption of the new system.

The result from these observations is that the sources of additional
expense from the establishment of the proposed Constitution are much
fewer than may have been imagined; that they are counterbalanced by
considerable objects of saving; and that while it is questionable on
which side the scale will preponderate, it is certain that a government
less expensive would be incompetent to the purposes of the Union.

PUBLIUS.

 [1] _Vide_ Blackstone’s _Commentaries_, vol. 1., p. 136.

 [2] _Vide_ Blackstone’s _Commentaries_, vol. iv., p. 438.

 [3] To show that there is a power in the Constitution by which the
 liberty of the press may be affected, recourse has been had to the
 power of taxation. It is said that duties may be laid upon the
 publications so high as to amount to a prohibition. I know not by what
 logic it could be maintained, that the declarations in the State
 constitutions, in favor of the freedom of the press, would be a
 constitutional impediment to the imposition of duties upon
 publications by the State legislatures. It cannot certainly be
 pretended that any degree of duties, however low, would be an
 abridgment of the liberty of the press. We know that newspapers are
 taxed in Great Britain, and yet it is notorious that the press nowhere
 enjoys greater liberty than in that country. And if duties of any kind
 may be laid without a violation of that liberty, it is evident that
 the extent must depend on legislative discretion, respecting the
 liberty of the press, will give it no greater security than it will
 have without them. The same invasions of it may be effected under the
 State constitutions which contain those declarations through the means
 of taxation, as under the proposed Constitution, which has nothing of
 the kind. It would be quite as significant to declare that government
 ought to be free, that taxes ought not to be excessive, etc., as that
 the liberty of the press ought not to be restrained.

 [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.




THE FEDERALIST.
No. LXXXV.

Concluding Remarks

From MCLEAN’s Edition, New York.

HAMILTON


To the People of the State of New York:

According to the formal division of the subject of these papers,
announced in my first number, there would appear still to remain for
discussion two points: “the analogy of the proposed government to your
own State constitution,” and “the additional security which its
adoption will afford to republican government, to liberty, and to
property.” But these heads have been so fully anticipated and exhausted
in the progress of the work, that it would now scarcely be possible to
do any thing more than repeat, in a more dilated form, what has been
heretofore said, which the advanced stage of the question, and the time
already spent upon it, conspire to forbid.

It is remarkable, that the resemblance of the plan of the convention to
the act which organizes the government of this State holds, not less
with regard to many of the supposed defects, than to the real
excellences of the former. Among the pretended defects are the
re-eligibility of the Executive, the want of a council, the omission of
a formal bill of rights, the omission of a provision respecting the
liberty of the press. These and several others which have been noted in
the course of our inquiries are as much chargeable on the existing
constitution of this State, as on the one proposed for the Union; and a
man must have slender pretensions to consistency, who can rail at the
latter for imperfections which he finds no difficulty in excusing in
the former. Nor indeed can there be a better proof of the insincerity
and affectation of some of the zealous adversaries of the plan of the
convention among us, who profess to be the devoted admirers of the
government under which they live, than the fury with which they have
attacked that plan, for matters in regard to which our own constitution
is equally or perhaps more vulnerable.

The additional securities to republican government, to liberty and to
property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the preservation
of the Union will impose on local factions and insurrections, and on
the ambition of powerful individuals in single States, who may acquire
credit and influence enough, from leaders and favorites, to become the
despots of the people; in the diminution of the opportunities to
foreign intrigue, which the dissolution of the Confederacy would invite
and facilitate; in the prevention of extensive military establishments,
which could not fail to grow out of wars between the States in a
disunited situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of titles
of nobility; and in the precautions against the repetition of those
practices on the part of the State governments which have undermined
the foundations of property and credit, have planted mutual distrust in
the breasts of all classes of citizens, and have occasioned an almost
universal prostration of morals.

Thus have I, fellow-citizens, executed the task I had assigned to
myself; with what success, your conduct must determine. I trust at
least you will admit that I have not failed in the assurance I gave you
respecting the spirit with which my endeavors should be conducted. I
have addressed myself purely to your judgments, and have studiously
avoided those asperities which are too apt to disgrace political
disputants of all parties, and which have been not a little provoked by
the language and conduct of the opponents of the Constitution. The
charge of a conspiracy against the liberties of the people, which has
been indiscriminately brought against the advocates of the plan, has
something in it too wanton and too malignant, not to excite the
indignation of every man who feels in his own bosom a refutation of the
calumny. The perpetual changes which have been rung upon the wealthy,
the well-born, and the great, have been such as to inspire the disgust
of all sensible men. And the unwarrantable concealments and
misrepresentations which have been in various ways practiced to keep
the truth from the public eye, have been of a nature to demand the
reprobation of all honest men. It is not impossible that these
circumstances may have occasionally betrayed me into intemperances of
expression which I did not intend; it is certain that I have frequently
felt a struggle between sensibility and moderation; and if the former
has in some instances prevailed, it must be my excuse that it has been
neither often nor much.

Let us now pause and ask ourselves whether, in the course of these
papers, the proposed Constitution has not been satisfactorily
vindicated from the aspersions thrown upon it; and whether it has not
been shown to be worthy of the public approbation, and necessary to the
public safety and prosperity. Every man is bound to answer these
questions to himself, according to the best of his conscience and
understanding, and to act agreeably to the genuine and sober dictates
of his judgment. This is a duty from which nothing can give him a
dispensation. ’T is one that he is called upon, nay, constrained by all
the obligations that form the bands of society, to discharge sincerely
and honestly. No partial motive, no particular interest, no pride of
opinion, no temporary passion or prejudice, will justify to himself, to
his country, or to his posterity, an improper election of the part he
is to act. Let him beware of an obstinate adherence to party; let him
reflect that the object upon which he is to decide is not a particular
interest of the community, but the very existence of the nation; and
let him remember that a majority of America has already given its
sanction to the plan which he is to approve or reject.

I shall not dissemble that I feel an entire confidence in the arguments
which recommend the proposed system to your adoption, and that I am
unable to discern any real force in those by which it has been opposed.
I am persuaded that it is the best which our political situation,
habits, and opinions will admit, and superior to any the revolution has
produced.

Concessions on the part of the friends of the plan, that it has not a
claim to absolute perfection, have afforded matter of no small triumph
to its enemies. “Why,” say they, “should we adopt an imperfect thing?
Why not amend it and make it perfect before it is irrevocably
established?” This may be plausible enough, but it is only plausible.
In the first place I remark, that the extent of these concessions has
been greatly exaggerated. They have been stated as amounting to an
admission that the plan is radically defective, and that without
material alterations the rights and the interests of the community
cannot be safely confided to it. This, as far as I have understood the
meaning of those who make the concessions, is an entire perversion of
their sense. No advocate of the measure can be found, who will not
declare as his sentiment, that the system, though it may not be perfect
in every part, is, upon the whole, a good one; is the best that the
present views and circumstances of the country will permit; and is such
an one as promises every species of security which a reasonable people
can desire.

I answer in the next place, that I should esteem it the extreme of
imprudence to prolong the precarious state of our national affairs, and
to expose the Union to the jeopardy of successive experiments, in the
chimerical pursuit of a perfect plan. I never expect to see a perfect
work from imperfect man. The result of the deliberations of all
collective bodies must necessarily be a compound, as well of the errors
and prejudices, as of the good sense and wisdom, of the individuals of
whom they are composed. The compacts which are to embrace thirteen
distinct States in a common bond of amity and union, must as
necessarily be a compromise of as many dissimilar interests and
inclinations. How can perfection spring from such materials?

The reasons assigned in an excellent little pamphlet lately published
in this city[1] are unanswerable to show the utter improbability of
assembling a new convention, under circumstances in any degree so
favorable to a happy issue, as those in which the late convention met,
deliberated, and concluded. I will not repeat the arguments there used,
as I presume the production itself has had an extensive circulation. It
is certainly well worthy the perusal of every friend to his country.
There is, however, one point of light in which the subject of
amendments still remains to be considered, and in which it has not yet
been exhibited to public view. I cannot resolve to conclude without
first taking a survey of it in this aspect.

It appears to me susceptible of absolute demonstration, that it will be
far more easy to obtain subsequent than previous amendments to the
Constitution. The moment an alteration is made in the present plan, it
becomes, to the purpose of adoption, a new one, and must undergo a new
decision of each State. To its complete establishment throughout the
Union, it will therefore require the concurrence of thirteen States.
If, on the contrary, the Constitution proposed should once be ratified
by all the States as it stands, alterations in it may at any time be
effected by nine States. Here, then, the chances are as thirteen to
nine[2] in favor of subsequent amendment, rather than of the original
adoption of an entire system.

This is not all. Every Constitution for the United States must
inevitably consist of a great variety of particulars, in which thirteen
independent States are to be accommodated in their interests or
opinions of interest. We may of course expect to see, in any body of
men charged with its original formation, very different combinations of
the parts upon different points. Many of those who form a majority on
one question, may become the minority on a second, and an association
dissimilar to either may constitute the majority on a third. Hence the
necessity of moulding and arranging all the particulars which are to
compose the whole, in such a manner as to satisfy all the parties to
the compact; and hence, also, an immense multiplication of difficulties
and casualties in obtaining the collective assent to a final act. The
degree of that multiplication must evidently be in a ratio to the
number of particulars and the number of parties.

But every amendment to the Constitution, if once established, would be
a single proposition, and might be brought forward singly. There would
then be no necessity for management or compromise, in relation to any
other point no giving nor taking. The will of the requisite number
would at once bring the matter to a decisive issue. And consequently,
whenever nine, or rather ten States, were united in the desire of a
particular amendment, that amendment must infallibly take place. There
can, therefore, be no comparison between the facility of affecting an
amendment, and that of establishing in the first instance a complete
Constitution.

In opposition to the probability of subsequent amendments, it has been
urged that the persons delegated to the administration of the national
government will always be disinclined to yield up any portion of the
authority of which they were once possessed. For my own part I
acknowledge a thorough conviction that any amendments which may, upon
mature consideration, be thought useful, will be applicable to the
organization of the government, not to the mass of its powers; and on
this account alone, I think there is no weight in the observation just
stated. I also think there is little weight in it on another account.
The intrinsic difficulty of governing thirteen States at any rate,
independent of calculations upon an ordinary degree of public spirit
and integrity, will, in my opinion constantly impose on the national
rulers the necessity of a spirit of accommodation to the reasonable
expectations of their constituents. But there is yet a further
consideration, which proves beyond the possibility of a doubt, that the
observation is futile. It is this that the national rulers, whenever
nine States concur, will have no option upon the subject. By the fifth
article of the plan, the Congress will be obliged “on the application
of the legislatures of two thirds of the States, which at present
amount to nine, to call a convention for proposing amendments, which
shall be valid, to all intents and purposes, as part of the
Constitution, when ratified by the legislatures of three fourths of the
States, or by conventions in three fourths thereof.” The words of this
article are peremptory. The Congress “shall call a convention.” Nothing
in this particular is left to the discretion of that body. And of
consequence, all the declamation about the disinclination to a change
vanishes in air. Nor however difficult it may be supposed to unite two
thirds or three fourths of the State legislatures, in amendments which
may affect local interests, can there be any room to apprehend any such
difficulty in a union on points which are merely relative to the
general liberty or security of the people. We may safely rely on the
disposition of the State legislatures to erect barriers against the
encroachments of the national authority.

If the foregoing argument is a fallacy, certain it is that I am myself
deceived by it, for it is, in my conception, one of those rare
instances in which a political truth can be brought to the test of a
mathematical demonstration. Those who see the matter in the same light
with me, however zealous they may be for amendments, must agree in the
propriety of a previous adoption, as the most direct road to their own
object.

The zeal for attempts to amend, prior to the establishment of the
Constitution, must abate in every man who is ready to accede to the
truth of the following observations of a writer equally solid and
ingenious: “To balance a large state or society Usays hee, whether
monarchical or republican, on general laws, is a work of so great
difficulty, that no human genius, however comprehensive, is able, by
the mere dint of reason and reflection, to effect it. The judgments of
many must unite in the work; experience must guide their labor; time
must bring it to perfection, and the feeling of inconveniences must
correct the mistakes which they INEVITABLY fall into in their first
trials and experiments.”[3] These judicious reflections contain a
lesson of moderation to all the sincere lovers of the Union, and ought
to put them upon their guard against hazarding anarchy, civil war, a
perpetual alienation of the States from each other, and perhaps the
military despotism of a victorious demagogue, in the pursuit of what
they are not likely to obtain, but from time and experience. It may be
in me a defect of political fortitude, but I acknowledge that I cannot
entertain an equal tranquillity with those who affect to treat the
dangers of a longer continuance in our present situation as imaginary.
A nation, without a national government, is, in my view, an awful
spectacle. The establishment of a Constitution, in time of profound
peace, by the voluntary consent of a whole people, is a prodigy, to the
completion of which I look forward with trembling anxiety. I can
reconcile it to no rules of prudence to let go the hold we now have, in
so arduous an enterprise, upon seven out of the thirteen States, and
after having passed over so considerable a part of the ground, to
recommence the course. I dread the more the consequences of new
attempts, because I know that powerful individuals, in this and in
other States, are enemies to a general national government in every
possible shape.

PUBLIUS.

 [1] Entitled “An Address to the People of the State of New York.”

 [2] It may rather be said TEN, for though two thirds may set on foot
 the measure, three fourths must ratify.

 [3] Hume’s _Essays_, vol. i., page 128: “The Rise of Arts and
 Sciences.”

*** END OF THE PROJECT GUTENBERG EBOOK 18 ***