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<div>*** START OF THE PROJECT GUTENBERG EBOOK 18 ***</div>

<h1>The Federalist Papers</h1>

<h2 class="no-break">by Alexander Hamilton and John Jay and James Madison</h2>

<hr >

<h2>Contents</h2>

<table>

<tr>
<td> <a href="#chap01">FEDERALIST No. I. General Introduction</a></td>
</tr>

<tr>
<td> <a href="#chap02">FEDERALIST No. II. Concerning Dangers from Foreign Force and Influence</a></td>
</tr>

<tr>
<td> <a href="#chap03">FEDERALIST No. III. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)</a></td>
</tr>

<tr>
<td> <a href="#chap04">FEDERALIST No. IV. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)</a></td>
</tr>

<tr>
<td> <a href="#chap05">FEDERALIST No. V. The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)</a></td>
</tr>

<tr>
<td> <a href="#chap06">FEDERALIST No. VI. Concerning Dangers from Dissensions Between the States</a></td>
</tr>

<tr>
<td> <a href="#chap07">FEDERALIST No. VII. The Same Subject Continued (Concerning Dangers from Dissensions Between the States)</a></td>
</tr>

<tr>
<td> <a href="#chap08">FEDERALIST No. VIII. The Consequences of Hostilities Between the States</a></td>
</tr>

<tr>
<td> <a href="#chap09">FEDERALIST No. IX. The Union as a Safeguard Against Domestic Faction and Insurrection</a></td>
</tr>

<tr>
<td> <a href="#chap10">FEDERALIST No. X. The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection)</a></td>
</tr>

<tr>
<td> <a href="#chap11">FEDERALIST No. XI. The Utility of the Union in Respect to Commercial Relations and a Navy</a></td>
</tr>

<tr>
<td> <a href="#chap12">FEDERALIST No. XII. The Utility of the Union In Respect to Revenue</a></td>
</tr>

<tr>
<td> <a href="#chap13">FEDERALIST No. XIII. Advantage of the Union in Respect to Economy in Government</a></td>
</tr>

<tr>
<td> <a href="#chap14">FEDERALIST No. XIV. Objections to the Proposed Constitution From Extent of Territory Answered</a></td>
</tr>

<tr>
<td> <a href="#chap15">FEDERALIST No. XV. The Insufficiency of the Present Confederation to Preserve the Union</a></td>
</tr>

<tr>
<td> <a href="#chap16">FEDERALIST No. XVI. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)</a></td>
</tr>

<tr>
<td> <a href="#chap17">FEDERALIST No. XVII. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)</a></td>
</tr>

<tr>
<td> <a href="#chap18">FEDERALIST No. XVIII. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)</a></td>
</tr>

<tr>
<td> <a href="#chap19">FEDERALIST No. XIX. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)</a></td>
</tr>

<tr>
<td> <a href="#chap20">FEDERALIST No. XX. The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)</a></td>
</tr>

<tr>
<td> <a href="#chap21">FEDERALIST No. XXI. Other Defects of the Present Confederation</a></td>
</tr>

<tr>
<td> <a href="#chap22">FEDERALIST No. XXII. The Same Subject Continued (Other Defects of the Present Confederation)</a></td>
</tr>

<tr>
<td> <a href="#chap23">FEDERALIST No. XXIII. The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union</a></td>
</tr>

<tr>
<td> <a href="#chap24">FEDERALIST No. XXIV. The Powers Necessary to the Common Defense Further Considered</a></td>
</tr>

<tr>
<td> <a href="#chap25">FEDERALIST No. XXV. The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)</a></td>
</tr>

<tr>
<td> <a href="#chap26">FEDERALIST No. XXVI. The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered.</a></td>
</tr>

<tr>
<td> <a href="#chap27">FEDERALIST No. XXVII. The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)</a></td>
</tr>

<tr>
<td> <a href="#chap28">FEDERALIST No. XXVIII. The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)</a></td>
</tr>

<tr>
<td> <a href="#chap29">FEDERALIST No. XXIX. Concerning the Militia</a></td>
</tr>

<tr>
<td> <a href="#chap30">FEDERALIST No. XXX. Concerning the General Power of Taxation</a></td>
</tr>

<tr>
<td> <a href="#chap31">FEDERALIST No. XXXI. The Same Subject Continued (Concerning the General Power of Taxation)</a></td>
</tr>

<tr>
<td> <a href="#chap32">FEDERALIST No. XXXII. The Same Subject Continued (Concerning the General Power of Taxation)</a></td>
</tr>

<tr>
<td> <a href="#chap33">FEDERALIST No. XXXIII. The Same Subject Continued (Concerning the General Power of Taxation)</a></td>
</tr>

<tr>
<td> <a href="#chap34">FEDERALIST No. XXXIV. The Same Subject Continued (Concerning the General Power of Taxation)</a></td>
</tr>

<tr>
<td> <a href="#chap35">FEDERALIST No. XXXV. The Same Subject Continued (Concerning the General Power of Taxation)</a></td>
</tr>

<tr>
<td> <a href="#chap36">FEDERALIST No. XXXVI. The Same Subject Continued (Concerning the General Power of Taxation)</a></td>
</tr>

<tr>
<td> <a href="#chap37">FEDERALIST No. XXXVII. Concerning the Difficulties of the Convention in Devising a Proper Form of Government.</a></td>
</tr>

<tr>
<td> <a href="#chap38">FEDERALIST No. XXXVIII. The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed.</a></td>
</tr>

<tr>
<td> <a href="#chap39">FEDERALIST No. XXXIX. The Conformity of the Plan to Republican Principles</a></td>
</tr>

<tr>
<td> <a href="#chap40">FEDERALIST No. XL. On the Powers of the Convention to Form a Mixed Government Examined and Sustained.</a></td>
</tr>

<tr>
<td> <a href="#chap41">FEDERALIST No. XLI. General View of the Powers Conferred by The Constitution</a></td>
</tr>

<tr>
<td> <a href="#chap42">FEDERALIST No. XLII. The Powers Conferred by the Constitution Further Considered</a></td>
</tr>

<tr>
<td> <a href="#chap43">FEDERALIST No. XLIII. The Same Subject Continued (The Powers Conferred by the Constitution Further Considered)</a></td>
</tr>

<tr>
<td> <a href="#chap44">FEDERALIST No. XLIV. Restrictions on the Authority of the Several States</a></td>
</tr>

<tr>
<td> <a href="#chap45">FEDERALIST No. XLV. The Alleged Danger From the Powers of the Union to the State Governments.</a></td>
</tr>

<tr>
<td> <a href="#chap46">FEDERALIST No. XLVI. The Influence of the State and Federal Governments Compared</a></td>
</tr>

<tr>
<td> <a href="#chap47">FEDERALIST No. XLVII. The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts.</a></td>
</tr>

<tr>
<td> <a href="#chap48">FEDERALIST No. XLVIII. These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other.</a></td>
</tr>

<tr>
<td> <a href="#chap49">FEDERALIST No. XLIX. Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention.</a></td>
</tr>

<tr>
<td> <a href="#chap50">FEDERALIST No. L. Periodical Appeals to the People Considered</a></td>
</tr>

<tr>
<td> <a href="#chap51">FEDERALIST No. LI. The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.</a></td>
</tr>

<tr>
<td> <a href="#chap52">FEDERALIST No. LII. The House of Representatives</a></td>
</tr>

<tr>
<td> <a href="#chap53">FEDERALIST No. LIII. The Same Subject Continued (The House of Representatives)</a></td>
</tr>

<tr>
<td> <a href="#chap54">FEDERALIST No. LIV. The Apportionment of Members Among the States</a></td>
</tr>

<tr>
<td> <a href="#chap55">FEDERALIST No. LV. The Total Number of the House of Representatives</a></td>
</tr>

<tr>
<td> <a href="#chap56">FEDERALIST No. LVI. The Same Subject Continued (The Total Number of the House of Representatives)</a></td>
</tr>

<tr>
<td> <a href="#chap57">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.</a></td>
</tr>

<tr>
<td> <a href="#chap58">FEDERALIST No. LVIII. Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands.</a></td>
</tr>

<tr>
<td> <a href="#chap59">FEDERALIST No. LIV. Concerning the Power of Congress to Regulate the Election of Members</a></td>
</tr>

<tr>
<td> <a href="#chap60">FEDERALIST No. LX. The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)</a></td>
</tr>

<tr>
<td> <a href="#chap61">FEDERALIST No. LXI. The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)</a></td>
</tr>

<tr>
<td> <a href="#chap62">FEDERALIST No. LXII. The Senate</a></td>
</tr>

<tr>
<td> <a href="#chap63">FEDERALIST No. LXIII. The Senate Continued</a></td>
</tr>

<tr>
<td> <a href="#chap64">FEDERALIST No. LXIV. The Powers of the Senate</a></td>
</tr>

<tr>
<td> <a href="#chap65">FEDERALIST No. LXV. The Powers of the Senate Continued</a></td>
</tr>

<tr>
<td> <a href="#chap66">FEDERALIST No. LXVI. Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered.</a></td>
</tr>

<tr>
<td> <a href="#chap67">FEDERALIST No. LXVII. The Executive Department</a></td>
</tr>

<tr>
<td> <a href="#chap68">FEDERALIST No. LXVIII. The Mode of Electing the President</a></td>
</tr>

<tr>
<td> <a href="#chap69">FEDERALIST No. LXIX. The Real Character of the Executive</a></td>
</tr>

<tr>
<td> <a href="#chap70">FEDERALIST No. LXX. The Executive Department Further Considered</a></td>
</tr>

<tr>
<td> <a href="#chap70a">FEDERALIST No. LXX. The Executive Department Further Considered</a></td>
</tr>

<tr>
<td> <a href="#chap71">FEDERALIST No. LXXI. The Duration in Office of the Executive</a></td>
</tr>

<tr>
<td> <a href="#chap72">FEDERALIST No. LXXII. The Same Subject Continued, and Re-Eligibility of the Executive Considered.</a></td>
</tr>

<tr>
<td> <a href="#chap73">FEDERALIST No. LXXIII. The Provision For The Support of the Executive, and the Veto Power</a></td>
</tr>

<tr>
<td> <a href="#chap74">FEDERALIST No. LXXIV. The Command of the Military and Naval Forces, and the Pardoning Power of the Executive.</a></td>
</tr>

<tr>
<td> <a href="#chap75">FEDERALIST No. LXXV. The Treaty-Making Power of the Executive</a></td>
</tr>

<tr>
<td> <a href="#chap76">FEDERALIST No. LXXVI. The Appointing Power of the Executive</a></td>
</tr>

<tr>
<td> <a href="#chap77">FEDERALIST No. LXXVII. The Appointing Power Continued and Other Powers of the Executive Considered.</a></td>
</tr>

<tr>
<td> <a href="#chap78">FEDERALIST No. LXXVIII. The Judiciary Department</a></td>
</tr>

<tr>
<td> <a href="#chap79">FEDERALIST No. LXXIX. The Judiciary Continued</a></td>
</tr>

<tr>
<td> <a href="#chap80">FEDERALIST No. LXXX. The Powers of the Judiciary</a></td>
</tr>

<tr>
<td> <a href="#chap81">FEDERALIST No. LXXXI. The Judiciary Continued, and the Distribution of the Judicial Authority.</a></td>
</tr>

<tr>
<td> <a href="#chap82">FEDERALIST No. LXXXII. The Judiciary Continued.</a></td>
</tr>

<tr>
<td> <a href="#chap83">FEDERALIST No. LXXXIII. The Judiciary Continued in Relation to Trial by Jury</a></td>
</tr>

<tr>
<td> <a href="#chap84">FEDERALIST No. LXXXIV. Certain General and Miscellaneous Objections to the Constitution Considered and Answered.</a></td>
</tr>

<tr>
<td> <a href="#chap85">FEDERALIST No. LXXXV. Concluding Remarks</a></td>
</tr>

</table>

<div class="chapter">

<h2><a id="chap01"></a>THE FEDERALIST.<br>
No. I.</h2>

<p class="center">
General Introduction
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

<p>
I propose, in a series of papers, to discuss the following interesting
particulars:
</p>

<p>
THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY
</p>

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

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

<p>
It may perhaps be thought superfluous to offer arguments to prove the utility
of the UNION, a point, no doubt, deeply engraved on the hearts of the great
body of the people in every State, and one, which it may be imagined, has no
adversaries. But the fact is, that we already hear it whispered in the private
circles of those who oppose the new Constitution, that the thirteen States are
of too great extent for any general system, and that we must of necessity
resort to separate confederacies of distinct portions of the whole.<a
href="#fn1.1" id="fnref1.1"><sup>[1]</sup></a> This doctrine will, in all
probability, be gradually propagated, till it has votaries enough to
countenance an open avowal of it. For nothing can be more evident, to those who
are able to take an enlarged view of the subject, than the alternative of an
adoption of the new Constitution or a dismemberment of the Union. It will
therefore be of use to begin by examining the advantages of that Union, the
certain evils, and the probable dangers, to which every State will be exposed
from its dissolution. This shall accordingly constitute the subject of my next
address.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn1.1"></a> <a href="#fnref1.1">[1]</a>
The same idea, tracing the arguments to their consequences, is held out in
several of the late publications against the new Constitution.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap02"></a>THE FEDERALIST.<br>
No. II.</h2>

<p class="center">
Concerning Dangers from Foreign Force and Influence
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
JAY
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

<p>
It has often given me pleasure to observe that independent America was not
composed of detached and distant territories, but that one connected, fertile,
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.
</p>

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

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

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

<p>
A strong sense of the value and blessings of union induced the people, at a
very early period, to institute a federal government to preserve and perpetuate
it. They formed it almost as soon as they had a political existence; nay, at a
time when their habitations were in flames, when many of their citizens were
bleeding, and when the progress of hostility and desolation left little room
for those calm and mature inquiries and reflections which must ever precede the
formation of a wise and 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.
</p>

<p>
This intelligent people perceived and regretted these defects. Still continuing
no less attached to union than enamored of liberty, they observed the danger
which immediately threatened the former and more remotely the latter; and being
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.
</p>

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap03"></a>THE FEDERALIST.<br>
No. III.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning Dangers From Foreign Force and Influence)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
JAY
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap04"></a>THE FEDERALIST.<br>
No. IV.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning Dangers From Foreign Force and Influence)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
JAY
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap05"></a>THE FEDERALIST.<br>
No. V.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning Dangers From Foreign Force and Influence)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
JAY
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap06"></a>THE FEDERALIST.<br>
No. VI.</h2>

<p class="center">
Concerning Dangers from Dissensions Between the States
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

<p>
The celebrated Pericles, in compliance with the resentment of a prostitute,<a
href="#fn6.1" id="fnref6.1"><sup>[1]</sup></a> 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,<a href="#fn6.2" id="fnref6.2"><sup>[2]</sup></a> 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,<a href="#fn6.3" id="fnref6.3"><sup>[3]</sup></a> 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,<a href="#fn6.4" id="fnref6.4"><sup>[4]</sup></a> or from a
combination of all these causes, was the primitive author of that famous and
fatal war, distinguished in the Grecian annals by the name of the PELOPONNESIAN
war; which, after various vicissitudes, intermissions, and renewals, terminated
in the ruin of the Athenian commonwealth.
</p>

<p>
The ambitious cardinal, who was prime minister to Henry VIII., permitting his
vanity to aspire to the triple crown,<a href="#fn6.5" id="fnref6.5"><sup>[5]</sup></a> entertained hopes of succeeding in the
acquisition of that splendid prize by the influence of the Emperor Charles V.
To secure the favor and interest of this enterprising and powerful monarch, he
precipitated England into a war with France, contrary to the plainest dictates
of policy, and at the hazard of the safety and independence, as well of the
kingdom over which he presided by his counsels, as of Europe in general. For if
there ever was a sovereign who bid fair to realize the project of universal
monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once
the instrument and the dupe.
</p>

<p>
The influence which the bigotry of one female,<a href="#fn6.6" id="fnref6.6"><sup>[6]</sup></a> the petulance of another,<a href="#fn6.7" id="fnref6.7"><sup>[7]</sup></a> and the cabals of a third,<a href="#fn6.8" id="fnref6.8"><sup>[8]</sup></a> had in the contemporary policy, ferments,
and pacifications, of a considerable part of Europe, are topics that have been
too often descanted upon not to be generally known.
</p>

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

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

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

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

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

<p>
Venice, in later times, figured more than once in wars of ambition, till,
becoming an object to the other Italian states, Pope Julius II. found means to
accomplish that formidable league,<a href="#fn6.9" id="fnref6.9"><sup>[9]</sup></a> which gave a deadly blow to the power and
pride of this haughty republic.
</p>

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

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

<p>
There have been, if I may so express it, almost as many popular as royal wars.
The cries of the nation and the importunities of their representatives have,
upon various occasions, dragged their monarchs into war, or continued them in
it, contrary to their inclinations, and sometimes contrary to the real
interests of the State. In that memorable struggle for superiority between the
rival houses of AUSTRIA and BOURBON, which so long kept Europe in a flame, it
is well known that the antipathies of the English against the French, seconding
the ambition, or rather the avarice, of a favorite leader,<a href="#fn6.10" id="fnref6.10"><sup>[10]</sup></a> protracted the war beyond the limits
marked out by sound policy, and for a considerable time in opposition to the
views of the court.
</p>

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

<p>
The last war but 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.
</p>

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

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

<p>
So far is the general sense of mankind from corresponding with the tenets of
those who endeavor to lull asleep our apprehensions of discord and hostility
between the States, in the event of disunion, that it has from long observation
of the progress of society become a sort of axiom in politics, that vicinity or
nearness of situation, constitutes nations natural enemies. An intelligent
writer expresses himself on this subject to this effect: “NEIGHBORING NATIONS
(says he) are naturally enemies of each other unless their common weakness
forces them to league in a CONFEDERATE REPUBLIC, and their constitution
prevents the differences that neighborhood occasions, extinguishing that secret
jealousy which disposes all states to aggrandize themselves at the expense of
their neighbors.”<a href="#fn6.11" id="fnref6.11"><sup>[11]</sup></a> This
passage, at the same time, points out the EVIL and suggests the REMEDY.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn6.1"></a> <a href="#fnref6.1">[1]</a>
Aspasia, <i>vide</i> Plutarch’s <i>Life of Pericles</i>.
</p>

<p class="footnote">
<a id="fn6.2"></a> <a href="#fnref6.2">[2]</a>
<i>Ibid</i>.
</p>

<p class="footnote">
<a id="fn6.3"></a> <a href="#fnref6.3">[3]</a>
<i>Ibid</i>. Phidias was supposed to have stolen some public gold, with the
connivance of Pericles, for the embellishment of the statue of Minerva.
</p>

<p class="footnote">
<a id="fn6.4"></a> <a href="#fnref6.4">[4]</a>
<i>Ibid</i>.
</p>

<p class="footnote">
<a id="fn6.5"></a> <a href="#fnref6.5">[5]</a>
Worn by the popes.
</p>

<p class="footnote">
<a id="fn6.6"></a> <a href="#fnref6.6">[6]</a>
Madame de Maintenon.
</p>

<p class="footnote">
<a id="fn6.7"></a> <a href="#fnref6.7">[7]</a>
Duchess of Marlborough.
</p>

<p class="footnote">
<a id="fn6.8"></a> <a href="#fnref6.8">[8]</a>
Madame de Pompadour.
</p>

<p class="footnote">
<a id="fn6.9"></a> <a href="#fnref6.9">[9]</a>
The League of Cambray, comprehending the Emperor, the King of France, the King
of Aragon, and most of the Italian princes and states.
</p>

<p class="footnote">
<a id="fn6.10"></a> <a href="#fnref6.10">[10]</a>
The Duke of Marlborough.
</p>

<p class="footnote">
<a id="fn6.11"></a> <a href="#fnref6.11">[11]</a>
<i>Vide Principes des Négociations</i> par l’Abbé de Mably.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap07"></a>THE FEDERALIST.<br>
No. VII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning Dangers from Dissensions Between the States)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

<p>
The probability of incompatible alliances between the different States or
confederacies and different foreign nations, and the effects of this situation
upon the peace of the whole, have been sufficiently unfolded in some preceding
papers. From the view they have exhibited of this part of the subject, this
conclusion is to be drawn, that America, if not connected at all, or only by
the feeble tie of a simple league, offensive and defensive, would, by the
operation of such jarring alliances, be gradually entangled in all the
pernicious labyrinths of European politics and wars; and by the destructive
contentions of the parts into which she was divided, would be likely to become
a prey to the artifices and machinations of powers equally the enemies of them
all. <i>Divide et impera</i><a href="#fn7.1" id="fnref7.1"><sup>[1]</sup></a>
must be the motto of every nation that either hates or fears us.<a
href="#fn7.2" id="fnref7.2"><sup>[2]</sup></a>
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn7.1"></a> <a href="#fnref7.1">[1]</a>
Divide and command.
</p>

<p class="footnote">
<a id="fn7.2"></a> <a href="#fnref7.2">[2]</a>
In order that the whole subject of these papers may as soon as possible be laid
before the public, it is proposed to publish them four times a week—on Tuesday
in the New York Packet and on Thursday in the Daily Advertiser.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap08"></a>THE FEDERALIST.<br>
No. VIII.</h2>

<p class="center">
The Consequences of Hostilities Between the States
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, November 20, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

<p>
The institutions chiefly alluded to are STANDING ARMIES and the correspondent
appendages of military establishments. Standing armies, it is said, are not
provided against in the new Constitution; and it is therefore inferred that
they may exist under it.<a href="#fn8.1" id="fnref8.1"><sup>[1]</sup></a>
Their existence, however, from the very terms of the proposition, is, at most,
problematical and uncertain. But standing armies, it may be replied, must
inevitably result from a dissolution of the Confederacy. Frequent war and
constant apprehension, which require a state of as constant preparation, will
infallibly produce them. The weaker States or confederacies would first have
recourse to them, to put themselves upon an equality with their more potent
neighbors. They would endeavor to supply the inferiority of population and
resources by a more regular and effective system of defense, by disciplined
troops, and by fortifications. They would, at the same time, be necessitated to
strengthen the executive arm of government, in doing which their constitutions
would acquire a progressive direction toward monarchy. It is of the nature of
war to increase the executive at the expense of the legislative authority.
</p>

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

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

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

<p>
There is a wide difference, also, between military establishments in a country
seldom exposed by its situation to internal invasions, and in one which is
often subject to them, and always apprehensive of them. The rulers of the
former can have 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.
</p>

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

<p>
The kingdom of Great Britain falls within the first description. An insular
situation, and a powerful marine, guarding it in a great measure against the
possibility of foreign invasion, supersede the necessity of a numerous army
within the kingdom. A sufficient force to make head against a sudden descent,
till the militia could have time to rally and embody, is all that has been
deemed requisite. No motive of national policy has demanded, nor would public
opinion have tolerated, a larger number of troops upon its domestic
establishment. There has been, for a long time past, little room for the
operation of the other causes, which have been enumerated as the consequences
of internal war. This peculiar felicity of situation has, in a great degree,
contributed to preserve the liberty which that country to this day enjoys, in
spite of the prevalent venality and corruption. If, on the contrary, Britain
had been situated on the continent, and had been compelled, as she would have
been, by that situation, to make her military establishments at home
coextensive with those of the other great powers of Europe, she, like them,
would in all probability be, at this day, a victim to the absolute power of a
single man. ’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.
</p>

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn8.1"></a> <a href="#fnref8.1">[1]</a>
This objection will be fully examined in its proper place, and it will be shown
that the only natural precaution which could have been taken on this subject
has been taken; and a much better one than is to be found in any constitution
that has been heretofore framed in America, most of which contain no guard at
all on this subject.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap09"></a>THE FEDERALIST.<br>
No. IX.</h2>

<p class="center">
The Union as a Safeguard Against Domestic Faction and Insurrection
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

<p>
“It is very probable,” (says he<a href="#fn9.1" id="fnref9.1"><sup>[1]</sup></a>) “that mankind would have been obliged at
length to live constantly under the government of a single person, had they not
contrived a kind of constitution that has all the internal advantages of a
republican, together with the external force of a monarchical government. I
mean a CONFEDERATE REPUBLIC.
</p>

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn9.1"></a> <a href="#fnref9.1">[1]</a>
<i>Spirit of Laws</i>, vol. i., book ix., chap. i.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap10"></a>THE FEDERALIST.<br>
No. X.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Union as a Safeguard Against Domestic Faction and Insurrection)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, November 23, 1787.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
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.
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap11"></a>THE FEDERALIST.<br>
No. XI.</h2>

<p class="center">
The Utility of the Union in Respect to Commercial Relations and a Navy
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p>
An unrestrained intercourse between the States themselves will advance the
trade of each by an interchange of their respective productions, not only for
the supply of reciprocal wants at home, but for exportation to foreign markets.
The veins of commerce in every part will be replenished, and will acquire
additional motion and vigor from a free circulation of the commodities of every
part. Commercial enterprise will have much greater scope, from the diversity in
the productions of different States. When the staple of one fails from a bad
harvest or unproductive crop, it can call to its aid the staple of another. The
variety, not less than the value, of products for exportation contributes to
the activity of foreign commerce. It can be conducted upon much better terms
with a large number of materials of a given value than with a small number of
materials of the same value; arising from the competitions of trade and from
the 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.
</p>

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

<p>
There are other points of view in which this subject might be placed, of a
striking and animating kind. But they would lead us too far into the regions of
futurity, and would involve topics not proper for a newspaper discussion. I
shall briefly observe, that our situation invites and our interests prompt us
to aim at an ascendant in the system of American affairs. The world may
politically, as well as geographically, be divided into four parts, each having
a distinct set of interests. Unhappily for the other three, Europe, by her arms
and by her negotiations, by force and by fraud, has, in different degrees,
extended her dominion over them all. Africa, Asia, and America, have
successively felt her domination. The superiority she has long maintained has
tempted her to plume herself as the Mistress of the World, and to consider the
rest of mankind as created for her benefit. Men admired as profound
philosophers have, in direct terms, attributed to her inhabitants a physical
superiority, and have gravely asserted that all animals, and with them the
human species, degenerate in America—that even dogs cease to bark after having
breathed awhile in our atmosphere.<a href="#fn11.1" id="fnref11.1"><sup>[1]</sup></a> Facts have too long supported these
arrogant pretensions of the Europeans. It belongs to us to vindicate the honor
of the human race, and to teach that assuming brother, moderation. Union will
enable us to do it. Disunion will will add another victim to his triumphs. Let
Americans disdain to be the instruments of European greatness! Let the thirteen
States, bound together in a strict and indissoluble Union, concur in erecting
one great American system, superior to the control of all transatlantic force
or influence, and able to dictate the terms of the connection between the old
and the new world!
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn11.1"></a> <a href="#fnref11.1">[1]</a>
“Recherches philosophiques sur les Américains.”
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap12"></a>THE FEDERALIST.<br>
No. XII.</h2>

<p class="center">
The Utility of the Union In Respect to Revenue
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, November 27, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

<p>
The relative situation of these States; the number of rivers with which they
are intersected, and of bays that wash 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.
</p>

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

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

<p>
It is therefore evident, that one national government would be able, at much
less expense, to extend the duties on imports, beyond comparison, further than
would be practicable to the States separately, or to any partial confederacies.
Hitherto, I believe, it may safely be asserted, that these duties have not upon
an average exceeded in any State three per cent. In France they are estimated
to be about fifteen per cent., and in Britain they exceed this proportion.<a
href="#fn12.1" id="fnref12.1"><sup>[1]</sup></a> There seems to be nothing to
hinder their being increased in this country to at least treble their present
amount. The single article of ardent spirits, under federal regulation, might
be made to furnish a considerable revenue. Upon a ratio to the importation into
this State, the whole quantity imported into the United States may be estimated
at four millions of gallons; which, at a shilling per gallon, would produce two
hundred thousand pounds. That article would well bear this rate of duty; and if
it should tend to diminish the consumption of it, such an effect would be
equally favorable to the agriculture, to the economy, to the morals, and to the
health of the society. There is, perhaps, nothing so much a subject of national
extravagance as these spirits.
</p>

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn12.1"></a> <a href="#fnref12.1">[1]</a>
If my memory be right they amount to twenty per cent.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap13"></a>THE FEDERALIST.<br>
No. XIII.</h2>

<p class="center">
Advantage of the Union in Respect to Economy in Government
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap14"></a>THE FEDERALIST.<br>
No. XIV.</h2>

<p class="center">
Objections to the Proposed Constitution From Extent of Territory Answered
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, November 30, 1787.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p>
I submit to you, my fellow-citizens, these considerations, in full confidence
that the good sense which has so often marked your decisions will allow them
their due weight and effect; and that you will never suffer difficulties,
however formidable in appearance, or however fashionable the error on which
they may be founded, to drive you into the gloomy and perilous scene into which
the advocates for disunion would conduct you. Hearken not to the unnatural
voice which tells you that the people of America, knit together as they are by
so many cords of affection, can no longer live together as members of the same
family; can no longer continue the mutual guardians of their mutual happiness;
can no longer be 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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap15"></a>THE FEDERALIST.<br>
No. XV.</h2>

<p class="center">
The Insufficiency of the Present Confederation to Preserve the Union
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York.
</p>

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

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

<p>
We may indeed with propriety be said to have reached almost the last stage of
national humiliation. There is scarcely anything that can wound the pride or
degrade the character of an independent nation which we do not experience. Are
there engagements to the performance of which we are held by every tie
respectable among men? These are the subjects of constant and unblushing
violation. Do we owe debts to foreigners and to our own citizens contracted in
a time of imminent peril for the preservation of our political existence? These
remain without any proper or satisfactory provision for their discharge. Have
we valuable territories and important posts in the possession of a foreign
power which, by express stipulations, ought long since to have been
surrendered? These are still retained, to the prejudice of our interests, not
less than of our rights. Are we in a condition to resent or to repel the
aggression? We have neither troops, nor treasury, nor government.<a
href="#fn15.1" id="fnref15.1"><sup>[1]</sup></a> Are we even in a condition
to remonstrate with dignity? The just imputations on our own faith, in respect
to the same treaty, ought first to be removed. Are we entitled by nature and
compact to a free participation in the navigation of the Mississippi? Spain
excludes us from it. Is public credit an indispensable resource in time of
public danger? We seem to have abandoned its cause as desperate and
irretrievable. Is commerce of importance to national wealth? Ours is at the
lowest point of declension. Is respectability in the eyes of foreign powers a
safeguard against foreign encroachments? The imbecility of our government even
forbids them to treat with us. Our ambassadors abroad are the mere pageants of
mimic sovereignty. Is a violent and unnatural decrease in the value of land a
symptom of national distress? The price of improved land in most parts of the
country is much lower than can be accounted for by the quantity of waste land
at market, and can only be fully explained by that want of private and public
confidence, which are so alarmingly prevalent among all ranks, and which have a
direct tendency to depreciate property of every kind. Is private credit the
friend and patron of industry? That most useful kind which relates to borrowing
and lending is reduced within the narrowest limits, and this still more from an
opinion of insecurity than from the scarcity of money. To shorten an
enumeration of particulars which can afford neither pleasure nor instruction,
it may in general be demanded, what indication is there of national disorder,
poverty, and insignificance that could befall a community so peculiarly blessed
with natural advantages as we are, which does not form a part of the dark
catalogue of our public misfortunes?
</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn15.1"></a> <a href="#fnref15.1">[1]</a>
“I mean for the Union.”
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap16"></a>THE FEDERALIST.<br>
No. XVI.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Insufficiency of the Present Confederation to Preserve the Union)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, December 4, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap17"></a>THE FEDERALIST.<br>
No. XVII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Insufficiency of the Present Confederation to Preserve the Union)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap18"></a>THE FEDERALIST.<br>
No. XVIII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Insufficiency of the Present Confederation to Preserve the Union)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON AND MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>
The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of
supplicating the aid of Macedon, its former oppressor. The latter expedient was
adopted. The contests of the Greeks always afforded a pleasing opportunity to
that powerful neighbor of intermeddling in their affairs. A Macedonian army
quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as
often happens, that a victorious and powerful ally is but another name for a
master. All that their most abject compliances could obtain from him was a
toleration of the exercise of their laws. Philip, who was now on the throne of
Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks.
The Achaeans, though weakened by internal dissensions and by the revolt of
Messene, one of its members, being joined by the AEtolians and Athenians,
erected the standard of opposition. Finding themselves, though thus supported,
unequal to the undertaking, they once more had recourse to the dangerous
expedient of introducing the succor of foreign arms. The Romans, to whom the
invitation was made, eagerly embraced it. Philip was conquered; Macedon
subdued. A new crisis ensued to the league. Dissensions broke out among it
members. These the Romans fostered. Callicrates and other popular leaders
became mercenary instruments for inveigling their countrymen. The more
effectually to nourish discord and disorder the Romans had, to the astonishment
of those who confided in their sincerity, already proclaimed universal
liberty<a href="#fn18.1" id="fnref18.1"><sup>[1]</sup></a> throughout Greece.
With the same insidious views, they now seduced the members from the league, by
representing to their pride the violation it committed on their sovereignty. By
these arts this union, the last hope of Greece, the last hope of ancient
liberty, was torn into pieces; and such imbecility and distraction introduced,
that the arms of Rome found little difficulty in completing the ruin which
their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded
with chains, under which it is groaning at this hour.
</p>

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn18.1"></a> <a href="#fnref18.1">[1]</a>
This was but another name more specious for the independence of the members on
the federal head.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap19"></a>THE FEDERALIST.<br>
No. XIX.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Insufficiency of the Present Confederation to Preserve the Union)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON AND MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p>
We may form some judgment of this scheme of military coercion from a sample
given by Thuanus. In Donawerth, a free and imperial city of the circle of
Suabia, the 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,<a href="#fn19.1" id="fnref19.1"><sup>[1]</sup></a> he took possession of it in his own name,
disarmed, and punished the inhabitants, and reannexed the city to his domains.
</p>

<p>
It may be asked, perhaps, what has so long kept this disjointed machine from
falling entirely to pieces? The answer is obvious: The weakness of most of the
members, who are unwilling to expose themselves to the mercy of foreign powers;
the weakness of most of the principal members, compared with the formidable
powers all around them; the vast weight and influence which the emperor derives
from his separate and 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.
</p>

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

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

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

<p>
They are kept together by the peculiarity of their topographical position; by
their individual weakness and insignificancy; by the fear of powerful
neighbors, to one of which they were formerly subject; by the few sources of
contention among a people of such simple and homogeneous manners; by their
joint interest in their dependent possessions; by the mutual aid they stand in
need of, for suppressing insurrections and rebellions, an aid expressly
stipulated and often required and afforded; and by the necessity of some
regular and permanent provision for 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.
</p>

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn19.1"></a> <a href="#fnref19.1">[1]</a>
Pfeffel, “Nouvel Abrég. Chronol. de l’Hist., etc., d’Allemagne,” says the
pretext was to indemnify himself for the expense of the expedition.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap20"></a>THE FEDERALIST.<br>
No. XX.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Insufficiency of the Present Confederation to Preserve the Union)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, December 11, 1787.
</p>

<p class="center">
HAMILTON AND MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

<p>
As stadtholder of the union, he has, however, considerable prerogatives.
</p>

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

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

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

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

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

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

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

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

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

<p>
It has more than once happened, that the deficiencies had to be ultimately
collected at the point of the bayonet; a thing practicable, though dreadful, in
a 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.
</p>

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap21"></a>THE FEDERALIST.<br>
No. XXI.</h2>

<p class="center">
Other Defects of the Present Confederation
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap22"></a>THE FEDERALIST.<br>
No. XXII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Other Defects of the Present Confederation)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, December 14, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
The want of a power to regulate commerce is by all parties allowed to be of the
number. The utility of such a power has been anticipated under the first head
of our inquiries; and for this reason, as well as from the universal conviction
entertained upon the subject, little need be added in this place. It is indeed
evident, on the most superficial view, that there is no object, either as it
respects the interests of trade or finance, that more strongly demands a
federal superintendence. The want of it has already operated as a bar to the
formation of beneficial treaties with foreign powers, and has given occasions
of dissatisfaction between the States. No nation acquainted with the nature of
our political association would be unwise enough to enter into stipulations
with the United States, by which they conceded privileges of any importance to
them, while they were apprised that the engagements on the part of the Union
might at any moment be violated by its members, and while they found from
experience that they might enjoy every advantage they desired in our markets,
without granting us any return but such as their momentary convenience might
suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in
ushering into the House of Commons a bill for regulating the temporary
intercourse between the two countries, should preface its introduction by a
declaration that similar provisions in former bills had been found to answer
every purpose to the commerce of Great Britain, and that it would be prudent to
persist in the plan until it should appear whether the American government was
likely or not to acquire greater consistency.<a href="#fn22.1" id="fnref22.1"><sup>[1]</sup></a>
</p>

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

<p>
The interfering and unneighborly regulations of some States, contrary to the
true spirit of the Union, have, in different instances, given just cause of
umbrage and complaint to others, and it is to be feared that examples of this
nature, if not restrained by a national control, would be multiplied and
extended till they became not less serious sources of animosity and discord
than injurious impediments to the intercourse between the different parts of
the Confederacy. “The commerce of the German empire<a href="#fn22.2" id="fnref22.2"><sup>[2]</sup></a> is in continual trammels from the
multiplicity of the duties which the several princes and states exact upon the
merchandises passing through their territories, by means of which the fine
streams and navigable rivers with which Germany is so happily watered are
rendered almost useless.” Though the genius of the people of this country might
never permit this description to be strictly applicable to us, yet we may
reasonably expect, from the gradual conflicts of State regulations, that the
citizens of each would at length come to be considered and treated by the
others in no better light than that of foreigners and aliens.
</p>

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

<p>
This method of raising troops is not more unfriendly to economy and vigor than
it is to an equal distribution of the burden. The States near the seat of war,
influenced by motives of self-preservation, made efforts to furnish their
quotas, which even exceeded their abilities; while those at a distance from
danger were, for the most part, as remiss as the others were diligent, in their
exertions. The immediate pressure of this inequality was not in this case, as
in that of the contributions of money, alleviated by the hope of a final
liquidation. The States which did not pay their proportions of money might at
least be charged with their deficiencies; but no account could be formed of the
deficiencies in the supplies of men. We shall not, however, see much reason to
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.
</p>

<p>
The right of equal suffrage among the States is another exceptionable part of
the Confederation. Every idea of proportion and every rule of fair
representation conspire to condemn a principle, which gives to Rhode Island an
equal weight in the scale of power with Massachusetts, or Connecticut, or New
York; and to 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;<a
href="#fn22.3" id="fnref22.3"><sup>[3]</sup></a> and two thirds of the people
of America could not long be persuaded, upon the credit of artificial
distinctions and syllogistic subtleties, to submit their interests to the
management and disposal of one third. The larger States would after a while
revolt from the idea of receiving the law from the smaller. To acquiesce in
such a privation of their due importance in the political scale, would be not
merely to be insensible to the love of power, but even to sacrifice the desire
of equality. It is neither rational to expect the first, nor just to require
the last. The smaller States, considering how peculiarly their safety and
welfare depend on union, ought readily to renounce a pretension which, if not
relinquished, would prove fatal to its duration.
</p>

<p>
It may be objected to this, that not seven but nine States, or two thirds of
the whole number, must consent to the most important resolutions; and it may be
thence inferred that nine States would always comprehend a majority of the
Union. But this does not obviate the impropriety of an equal vote between
States of the most unequal dimensions and populousness; nor is the inference
accurate in point of fact; for we can enumerate nine States which contain less
than a majority of the people;<a href="#fn22.4" id="fnref22.4"><sup>[4]</sup></a> and it is constitutionally possible that
these nine may give the vote. Besides, there are matters of considerable moment
determinable by a bare majority; and there are others, concerning which doubts
have been entertained, which, if interpreted in favor of the sufficiency of a
vote of seven States, would extend its operation to interests of the first
magnitude. In addition to this, it is to be observed that there is a
probability of an increase in the number of States, and no provision for a
proportional augmentation of the ratio of votes.
</p>

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn22.1"></a> <a href="#fnref22.1">[1]</a>
This, as nearly as I can recollect, was the sense of his speech on introducing
the last bill.
</p>

<p class="footnote">
<a id="fn22.2"></a> <a href="#fnref22.2">[2]</a>
Encyclopedia, article “Empire.”
</p>

<p class="footnote">
<a id="fn22.3"></a> <a href="#fnref22.3">[3]</a>
New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and
Maryland are a majority of the whole number of the States, but they do not
contain one third of the people.
</p>

<p class="footnote">
<a id="fn22.4"></a> <a href="#fnref22.4">[4]</a>
Add New York and Connecticut to the foregoing seven, and they will be less than
a majority.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap23"></a>THE FEDERALIST.<br>
No. XXIII.</h2>

<p class="center">
The Necessity of a Government as Energetic as the One Proposed to the
Preservation of the Union
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, December 18, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap24"></a>THE FEDERALIST.<br>
No. XXIV.</h2>

<p class="center">
The Powers Necessary to the Common Defense Further Considered
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
It has indeed been brought forward in the most vague and general form,
supported only by bold assertions, without the appearance of argument; without
even the sanction of theoretical opinions; in contradiction to the practice of
other free nations, and to the general sense of America, as expressed in most
of the existing constitutions. The 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.
</p>

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

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

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

<p>
If, under this impression, he proceeded to pass in review the several State
constitutions, how great would be his disappointment to find that TWO only of
them<a href="#fn24.1" id="fnref24.1"><sup>[1]</sup></a> contained an
interdiction of standing armies in time of peace; that the other eleven had
either observed a profound silence on the subject, or had in express terms
admitted the right of the Legislature to authorize their existence.
</p>

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn24.1"></a> <a href="#fnref24.1">[1]</a>
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.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap25"></a>THE FEDERALIST.<br>
No. XXV.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Powers Necessary to the Common Defense Further Considered)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, December 21, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap26"></a>THE FEDERALIST.<br>
No. XXVI.</h2>

<p class="center">
The Idea of Restraining the Legislative Authority in Regard to the Common
Defense Considered
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>
It has been said that the provision which limits the appropriation of money for
the support of an army to the period of two years would be unavailing, because
the Executive, when once possessed of a force large enough to awe the people
into submission, would find resources in that very force sufficient to enable
him to dispense with supplies from the acts of the legislature. But the
question again recurs, upon what pretense could he be put in possession of a
force of that magnitude in time of peace? If we suppose it to have been created
in consequence of some domestic insurrection or foreign war, then it becomes a
case not within the principles of the objection; for this is levelled against
the power of keeping up troops in time of peace. Few persons will be so
visionary as seriously to contend that military forces ought not to be raised
to quell a rebellion or resist an invasion; and if the defense of the community
under such circumstances should make it necessary to have an army so numerous
as to hazard its liberty, this is one of those 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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap27"></a>THE FEDERALIST.<br>
No. XXVII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Idea of Restraining the Legislative Authority in Regard to the Common
Defense Considered)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, December 25, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

<p>
The plan reported by the convention, by extending the authority of the federal
head to the individual citizens of the several States, will enable the
government to employ the ordinary magistracy of each, in the execution of its
laws. It is easy to perceive that this will tend to destroy, in the common
apprehension, all distinction between the sources from which they might
proceed; and will give the federal government the same advantage for securing a
due obedience to its authority which is enjoyed by the government of each
State, in addition to the influence on public opinion which will result from
the important consideration of its having power to call to its assistance and
support the resources of the whole Union. It merits particular attention in
this place, that the laws of the Confederacy, as to the ENUMERATED and
LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the
land; to the observance of which all officers, legislative, executive, and
judicial, in each State, will be bound by the sanctity of an oath. Thus the
legislatures, courts, and magistrates, of the respective members, will be
incorporated into the operations of the national government AS FAR AS ITS JUST
AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the
enforcement of its laws.<a href="#fn27.1" id="fnref27.1"><sup>[1]</sup></a>
Any man who will pursue, by his own reflections, the consequences of this
situation, will perceive that there is good ground to calculate upon a regular
and peaceable execution of the laws of the Union, if its powers are
administered with a common share of prudence. If we will arbitrarily suppose
the contrary, we may deduce any inferences we please from the supposition; for
it is certainly possible, by an injudicious exercise of the authorities of the
best government that ever was, or ever can be instituted, to provoke and
precipitate the people into the wildest excesses. But though the adversaries of
the proposed Constitution should presume that the national rulers would be
insensible to the motives of public good, or to the obligations of duty, I
would still ask them how the interests of ambition, or the views of
encroachment, can be promoted by such a conduct?
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn27.1"></a> <a href="#fnref27.1">[1]</a>
The sophistry which has been employed to show that this will tend to the
destruction of the State governments, will, in its will, in its proper place,
be fully detected.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap28"></a>THE FEDERALIST.<br>
No. XXVIII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(The Idea of Restraining the Legislative Authority in Regard to the Common
Defense Considered)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

<p>
Independent of all other reasonings upon the subject, it is a full answer to
those who require a more peremptory provision against military establishments
in time of peace, to say that the whole power of the proposed government is to
be in the hands of the representatives of the people. This is the essential,
and, after all, only efficacious security for the rights and privileges of the
people, which is attainable in civil society.<a href="#fn28.1" id="fnref28.1"><sup>[1]</sup></a>
</p>

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn28.1"></a> <a href="#fnref28.1">[1]</a>
Its full efficacy will be examined hereafter.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap29"></a>THE FEDERALIST.<br>
No. XXIX.</h2>

<p class="center">
Concerning the Militia
</p>

<p class="center">
From the Daily Advertiser.
</p>

<p class="center">
Thursday, January 10, 1788
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

<p class="poem">
“Gorgons, hydras, and chimeras dire;”
</p>

<p class="noindent">
discoloring and disfiguring whatever it represents, and transforming everything
it touches into a monster.
</p>

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap30"></a>THE FEDERALIST.<br>
No. XXX.</h2>

<p class="center">
Concerning the General Power of Taxation
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, December 28, 1787.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap31"></a>THE FEDERALIST.<br>
No. XXXI.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the General Power of Taxation)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, January 1, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap32"></a>THE FEDERALIST.<br>
No. XXXII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the General Power of Taxation)
</p>

<p class="center">
From the Daily Advertiser.
</p>

<p class="center">
Thursday, January 3, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap33"></a>THE FEDERALIST.<br>
No. XXXIII.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the General Power of Taxation)
</p>

<p class="center">
From the Daily Advertiser.
</p>

<p class="center">
January 3, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

<p>
This simple train of inquiry furnishes us at once with a test by which to judge
of the true nature of the clause complained of. It conducts us to this palpable
truth, that a power to lay and collect taxes must be a power to pass all laws
NECESSARY and PROPER for the execution of that power; and what does the
unfortunate and 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.
</p>

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap34"></a>THE FEDERALIST.<br>
No. XXXIV.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the General Power of Taxation)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, January 4, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap35"></a>THE FEDERALIST.<br>
No. XXXV.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the General Power of Taxation)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap36"></a>THE FEDERALIST.<br>
No. XXXVI.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the General Power of Taxation)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday January 8, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

<p>
The objection, when applied to real property or to houses and lands, appears to
have, at first sight, more foundation, but even in this view it will not bear a
close examination. Land taxes are 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.
</p>

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

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

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

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

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

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

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

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

<p>
As to poll taxes, I, without scruple, confess my disapprobation of them; and
though they have prevailed from an early period in those States<a
href="#fn36.1" id="fnref36.1"><sup>[1]</sup></a> which have uniformly been
the most tenacious of their rights, I should lament to see them introduced into
practice under the national government. But does it follow because there is a
power to lay them that they will actually be laid? Every State in the Union has
power to impose taxes of this kind; and yet in several of them they are unknown
in practice. Are the State governments to be stigmatized as tyrannies, because
they possess this power? If they are not, with what propriety can the like
power justify such a charge against the national government, or even be urged
as an obstacle to its adoption? As little friendly as I am to the species of
imposition, I still feel a thorough conviction that the power of having
recourse to it ought to exist in the federal government. There are certain
emergencies of nations, in which expedients, that in the ordinary state of
things ought to be forborne, become essential to the public weal. And the
government, from the possibility of such emergencies, ought ever to have the
option of making use of them. The real scarcity of objects in this country,
which may be considered as productive sources of revenue, is a reason peculiar
to itself, for not abridging the discretion of the national councils in this
respect. There may exist certain critical and tempestuous conjunctures of the
State, in which a poll tax may become an inestimable resource. And as I know
nothing to exempt this portion of the globe from the common calamities that
have befallen other parts of it, I acknowledge my aversion to every project
that is calculated to disarm the government of a single weapon, which in any
possible contingency might be usefully employed for the general defense and
security.
</p>

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn36.1"></a> <a href="#fnref36.1">[1]</a>
The New England States.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap37"></a>THE FEDERALIST.<br>
No. XXXVII.</h2>

<p class="center">
Concerning the Difficulties of the Convention in Devising a Proper Form of
Government
</p>

<p class="center">
From the Daily Advertiser.
</p>

<p class="center">
Friday, January 11, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap38"></a>THE FEDERALIST.<br>
No. XXXVIII.</h2>

<p class="center">
The Same Subject Continued, and the Incoherence of the Objections to the New
Plan Exposed
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, January 15, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

<p>
Is it an unreasonable conjecture, that the errors which may be contained in the
plan of the convention are such as have resulted rather from the defect of
antecedent experience on this complicated and difficult subject, than from a
want of accuracy or care in the investigation of it; and, consequently such as
will not be ascertained until an actual trial shall have pointed them out? This
conjecture is rendered probable, not only by many considerations of a general
nature, but by the particular case of the Articles of Confederation. It is
observable that among the numerous objections and amendments suggested by the
several States, when these articles were submitted for their ratification, not
one is found which alludes to the great and radical error which on actual trial
has discovered itself. And if we except the observations which New Jersey was
led to make, rather by her local situation, than by her peculiar foresight, it
may be questioned whether a single suggestion was of sufficient moment to
justify a revision of the system. There is abundant reason, nevertheless, to
suppose that immaterial as these objections were, they would have been adhered
to with a very dangerous inflexibility, in some States, had not a zeal for
their opinions and supposed interests been stifled by the more powerful
sentiment of 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.
</p>

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap39"></a>THE FEDERALIST.<br>
No. XXXIX.</h2>

<p class="center">
The Conformity of the Plan to Republican Principles
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap40"></a>THE FEDERALIST.<br>
No. XL.</h2>

<p class="center">
The Powers of the Convention to Form a Mixed Government Examined and Sustained
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, January 18, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The second point to be examined is, whether the convention were authorized to
frame and propose this mixed Constitution. 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.
</p>

<p>
There are two rules of construction, dictated by plain reason, as well as
founded on legal axioms. The one is, that every part of the expression ought,
if possible, to be allowed some meaning, and be made to conspire to some common
end. The other is, that where the several parts cannot be made to coincide, the
less important should give way to the more important part; the means should be
sacrificed to the end, rather than the end to the means. 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<a href="#fn40.1" id="fnref40.1"><sup>[1]</sup></a> 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,”<a
href="#fn40.2" id="fnref40.2"><sup>[2]</sup></a> 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.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn40.1"></a> <a href="#fnref40.1">[1]</a>
Connecticut and Rhode Island.
</p>

<p class="footnote">
<a id="fn40.2"></a> <a href="#fnref40.2">[2]</a>
Declaration of Independence.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap41"></a>THE FEDERALIST.<br>
No. XLI.</h2>

<p class="center">
General View of the Powers Conferred by The Constitution
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The Constitution proposed by the convention may be considered under two general
points of view. The FIRST relates to the sum or quantity of power which it
vests in the government, including the restraints imposed on the States. The
SECOND, to the particular structure of the government, and the distribution of
this power among its several branches. 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.
</p>

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

<p>
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.
</p>

<p>
Next to the effectual establishment of the Union, the best possible precaution
against danger from standing armies is a limitation of the term for which
revenue may be appropriated to their support. This precaution the Constitution
has prudently added. I will not repeat here the observations which I flatter
myself have placed this subject in a just and satisfactory light. But it may
not be improper to take notice of an argument against this part of the
Constitution, which has been drawn from the policy and practice of Great
Britain. It is said that the continuance of an army in that kingdom requires an
annual vote of the legislature; whereas the American Constitution has
lengthened this critical period to two years. This is the form in which the
comparison is usually stated to the public: but is it a just form? Is it a fair
comparison? Does the British Constitution restrain the parliamentary discretion
to one year? Does the American impose on the Congress appropriations for two
years? On the contrary, it cannot be unknown to the authors of the fallacy
themselves, that the British Constitution fixes no limit whatever to the
discretion of the legislature, and that the American ties down the legislature
to two years, as the longest admissible term. 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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap42"></a>THE FEDERALIST.<br>
No. XLII.</h2>

<p class="center">
The Powers Conferred by the Constitution Further Considered
</p>

<p class="center">
From the New York Packet. Tuesday, January 22, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The second class of powers, lodged in the general government, consists of those
which regulate the intercourse with foreign nations, to wit: to make treaties;
to send and receive ambassadors, other public ministers, and consuls; to define
and punish piracies and felonies committed on the high seas, and offenses
against the law of nations; to regulate foreign commerce, including a power to
prohibit, after the year 1808, the importation of slaves, and to lay an
intermediate duty of ten dollars per head, as a discouragement to such
importations. 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.
</p>

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

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

<p>
Attempts have been made to pervert this clause into an objection against the
Constitution, by representing it on one side as a criminal toleration of an
illicit practice, and on another as calculated to prevent voluntary and
beneficial emigrations from Europe to America. I mention these
misconstructions, not with a view to give them an answer, for they deserve
none, but as specimens of the manner and spirit in which some have thought fit
to conduct their opposition to the proposed government. 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.
</p>

<p>
The dissimilarity in the rules of naturalization has long been remarked as a
fault in our system, and as laying a foundation for intricate and delicate
questions. In the fourth article of the Confederation, it is declared “that the
FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives
from justice, excepted, shall be entitled to all privileges and immunities of
FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in
every other, enjoy all the privileges of trade and commerce,” etc. There is a
confusion of language here, which is remarkable. Why the terms FREE INHABITANTS
are used in one part of the article, FREE CITIZENS in another, and PEOPLE in
another; or what was meant by superadding to “all privileges and immunities of
free citizens,” “all the privileges of trade and commerce,” cannot easily be
determined. It seems to be a construction scarcely avoidable, however, that
those who come under the denomination of FREE INHABITANTS of a State, although
not citizens of such State, are entitled, in every other State, to all the
privileges of FREE CITIZENS of the latter; that is, to greater privileges than
they may be entitled to in their own State: so that it may be in the power of a
particular State, or rather every State is laid under a necessity, not only to
confer the rights of citizenship in other States upon any whom it may admit to
such rights within itself, but upon any whom it may allow to become inhabitants
within its jurisdiction. But were an exposition of the term “inhabitants” to be
admitted which would confine the stipulated privileges to citizens alone, the
difficulty is diminished only, not removed. The very improper power would still
be retained by each State, of naturalizing aliens in every other State. In one
State, residence for a short term confirms all the rights of citizenship: in
another, qualifications of greater importance are required. An alien,
therefore, legally incapacitated for certain rights in the latter, may, by
previous residence only in the former, elude his incapacity; and thus the law
of one State be preposterously rendered paramount to the law of another, within
the jurisdiction of the other. We owe it to mere casualty, that very serious
embarrassments on this subject have been hitherto escaped. By the laws of
several States, certain descriptions of aliens, who had rendered themselves
obnoxious, were laid under interdicts inconsistent not only with the rights of
citizenship but with the privilege of residence. What would have been the
consequence, if such persons, by residence or otherwise, had acquired the
character of citizens under the laws of another State, and then asserted their
rights as such, both to residence and citizenship, within the State proscribing
them? Whatever the legal consequences might have been, other consequences would
probably have resulted, of too serious a nature not to be provided against. The
new Constitution has accordingly, with great propriety, made provision against
them, and all others proceeding from the defect of the Confederation on this
head, by authorizing the general government to establish a uniform rule of
naturalization throughout the United States. 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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap43"></a>THE FEDERALIST.<br>
No. XLIII.</h2>

<p class="center">
The Same Subject Continued (The Powers Conferred by the Constitution Further
Considered)
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
A protection against invasion is due from every society to the parts composing
it. The latitude of the expression here used seems to secure each State, not
only against foreign hostility, but against ambitious or vindictive enterprises
of its more powerful neighbors. The history, both of ancient and modern
confederacies, proves that the weaker members of the union ought not to be
insensible to the policy of this article. 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.
</p>

<p>
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!
</p>

<p>
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.
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap44"></a>THE FEDERALIST.<br>
No. XLIV.</h2>

<p class="center">
Restrictions on the Authority of the Several States
</p>

<p class="center">
From the New York Packet. Friday, January 25, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
A fifth class of provisions in favor of the federal authority consists of the
following restrictions on the authority of the several States: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.
</p>

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

<p>
The extension of the prohibition to bills of credit must give pleasure to every
citizen, in proportion to his love of justice and his knowledge of the true
springs of public prosperity. The loss which America has sustained since the
peace, from the pestilent effects of paper money on the necessary confidence
between man and man, on the necessary confidence in the public councils, on the
industry and morals of the people, and on the character of republican
government, constitutes an enormous debt against the States chargeable with
this unadvised measure, which must long remain unsatisfied; or rather an
accumulation of guilt, which can be expiated no otherwise than by a voluntary
sacrifice on the altar of justice, of the power which has been the instrument
of it. In addition to these persuasive considerations, it may be observed, that
the same reasons which show the necessity of denying to the States the power of
regulating coin, prove with equal force that they ought not to be at liberty to
substitute a paper medium in the place of coin. Had every State a right to
regulate the value of its coin, there might be as many different currencies as
States, and thus the intercourse among them would be impeded; retrospective
alterations in its value might be made, and thus the citizens of other States
be injured, and animosities be kindled among the States themselves. The
subjects of foreign powers might suffer from the same cause, and hence the
Union be discredited and embroiled by the indiscretion of a single member. No
one of these mischiefs is less incident to a power in the States to emit paper
money, than to coin gold or silver. The power to make any thing but gold and
silver a tender in payment of debts, is withdrawn from the States, on the same
principle with that of issuing a paper currency. 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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
Had they attempted to enumerate the particular powers or means not necessary or
proper for carrying the general powers into execution, the task would have been
no less chimerical; and would have been liable to this further objection, that
every defect in the enumeration would have been equivalent to a positive grant
of authority. If, to avoid this consequence, they had attempted a partial
enumeration of the exceptions, and described the residue by the general terms,
NOT NECESSARY OR PROPER, it must have happened that the enumeration would
comprehend a few of the excepted powers only; that these would be such as would
be least likely to be assumed or tolerated, because the enumeration would of
course select such as would be least necessary or proper; and that the
unnecessary and improper powers included in the residuum, would be less
forcibly excepted, than if no partial enumeration had been made. 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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap45"></a>THE FEDERALIST.<br>
No. XLV.</h2>

<p class="center">
The Alleged Danger From the Powers of the Union to the State Governments
Considered
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
Having shown that no one of the powers transferred to the federal government is
unnecessary or improper, the next question to be considered is, whether the
whole mass of them will be dangerous to the portion of authority left in the
several States. 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,
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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 </p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap46"></a>THE FEDERALIST.<br>
No. XLVI.</h2>

<p class="center">
The Influence of the State and Federal Governments Compared
</p>

<p class="center">
From the New York Packet. Tuesday, January 29, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap47"></a>THE FEDERALIST.<br>
No. XLVII.</h2>

<p class="center">
The Particular Structure of the New Government and the Distribution of Power
Among Its Different Parts
</p>

<p class="center">
From the New York Packet. Friday, February 1, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
Having reviewed the general form of the proposed government and the general
mass of power allotted to it, I proceed to examine the particular structure of
this government, and the distribution of this mass of power among its
constituent parts. 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.
</p>

<p>
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.
</p>

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

<p>
If we look into the constitutions of the several States, we find that,
notwithstanding the emphatical and, in some instances, the unqualified terms in
which this axiom has been laid down, there is not a single instance in which
the several departments of power have been kept absolutely separate and
distinct. New Hampshire, whose constitution was the last formed, seems to have
been fully aware of the impossibility and inexpediency of avoiding any mixture
whatever of these departments, and has qualified the doctrine by declaring
“that the legislative, executive, and judiciary powers ought to be kept as
separate from, and independent of, each other AS THE NATURE OF A FREE
GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT
BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY
AND AMITY. “ Her constitution accordingly mixes these departments in several
respects. The Senate, which is a branch of the legislative department, is also
a judicial tribunal for the trial of impeachments. The President, who is the
head of the executive department, is the presiding member also of the Senate;
and, besides an equal vote in all cases, has a casting vote in case of a tie.
The executive head is himself eventually elective every year by the legislative
department, and his council is every year chosen by and from the members of the
same department. Several of the officers of state are also appointed by the
legislature. And the members of the judiciary department are appointed by the
executive department. 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.
</p>

<p>
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.
</p>

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap48"></a>THE FEDERALIST.<br>
No. XLVIII.</h2>

<p class="center">
These Departments Should Not Be So Far Separated as to Have No Constitutional
Control Over Each Other
</p>

<p class="center">
From the New York Packet. Friday, February 1, 1788.
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
It was shown in the last paper that the political apothegm there examined does
not require that the legislative, executive, and judiciary departments should
be wholly unconnected with each other. I shall undertake, in the next place, to
show that unless these departments be so far connected and blended as to give
to each a constitutional control over the others, the degree of separation
which the maxim requires, as essential to a free government, can never in
practice be duly maintained. 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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap49"></a>THE FEDERALIST.<br>
No. XLIX.</h2>

<p class="center">
Method of Guarding Against the Encroachments of Any One Department of
Government by Appealing to the People Through a Convention
</p>

<p class="center">
From the New York Packet. Tuesday, February 5, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
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.
</p>

<p>
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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap50"></a>THE FEDERALIST.<br>
No. L.</h2>

<p class="center">
Periodical Appeals to the People Considered
</p>

<p class="center">
From the New York Packet. Tuesday, February 5, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
It may be contended, perhaps, that instead of OCCASIONAL appeals to the people,
which are liable to the objections urged against them, PERIODICAL appeals are
the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE
CONSTITUTION. 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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap51"></a>THE FEDERALIST.<br>
No. LI.</h2>

<p class="center">
The Structure of the Government Must Furnish the Proper Checks and Balances
Between the Different Departments
</p>

<p class="center">
From the New York Packet. Friday, February 8, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
To what expedient, then, shall we finally resort, for maintaining in practice
the necessary partition of power among the several departments, as laid down in
the Constitution? The only answer that can be given is, that as all these
exterior provisions are found to be inadequate, the defect must be supplied, by
so contriving the interior structure of the government as that its several
constituent parts may, by their mutual relations, be the means of keeping each
other in their proper places. Without presuming to undertake a full development
of this important idea, I will hazard a few general observations, which may
perhaps place it in a clearer light, and enable us to form a more correct
judgment of the principles and structure of the government planned by the
convention. 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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap52"></a>THE FEDERALIST.<br>
No. LII.</h2>

<p class="center">
The House of Representatives
</p>

<p class="center">
From the New York Packet. Friday, February 8, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
From the more general inquiries pursued in the four last papers, I pass on to a
more particular examination of the several parts of the government. I shall
begin with the House of Representatives. 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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap53"></a>THE FEDERALIST.<br>
No. LIII.</h2>

<p class="center">
The Same Subject Continued (The House of Representatives)
</p>

<p class="center">
From the New York Packet. Tuesday, February 12, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
I shall here, perhaps, be reminded of a current observation, “that where annual
elections end, tyranny begins. “ If it be true, as has often been remarked,
that sayings which become proverbial are generally founded in reason, it is not
less true, that when once established, they are often applied to cases to which
the reason of them does not extend. I need not look for a proof beyond the case
before us. What is the reason on which this proverbial observation is founded?
No man will subject himself to the ridicule of pretending that any natural
connection subsists between the sun or the seasons, and the period within which
human virtue can bear the temptations of power. Happily for mankind, liberty is
not, in this respect, confined to any single point of time; but lies within
extremes, which afford sufficient latitude for all the variations which may be
required by the various situations and circumstances of civil society. The
election of magistrates might be, if it were found expedient, as in some
instances it actually has been, daily, weekly, or monthly, as well as annual;
and if circumstances may require a deviation from the rule on one side, why not
also on the other side? Turning our attention to the periods established among
ourselves, for the election of the most numerous branches of the State
legislatures, we find them by no means coinciding any more in this instance,
than in the elections of other civil magistrates. In Connecticut and Rhode
Island, the periods are half-yearly. In the other States, South Carolina
excepted, they are annual. In South Carolina they are biennial as is proposed
in the federal government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to show, that
Connecticut or Rhode Island is better governed, or enjoys a greater share of
rational liberty, than South Carolina; or that either the one or the other of
these States is distinguished in these respects, and by these causes, from the
States whose elections are different from both. 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.
</p>

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

<p>
There are other considerations, of less importance, perhaps, but which are not
unworthy of notice. The distance which many of the representatives will be
obliged to travel, and the arrangements rendered necessary by that
circumstance, might be much more serious objections with fit men to this
service, if limited to a single year, than if extended to two years. No
argument can be drawn on this subject, from the case of the delegates to the
existing Congress. They are elected annually, it is true; but their re-election
is considered by the legislative assemblies almost as a matter of course. The
election of the representatives by the people would not be governed by the same
principle. 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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap54"></a>THE FEDERALIST.<br>
No. LIV.</h2>

<p class="center">
The Apportionment of Members Among the States
</p>

<p class="center">
From the New York Packet. Tuesday, February 12, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The next view which I shall take of the House of Representatives relates to the
appointment of its members to the several States which is to be determined by
the same rule with that of direct taxes. 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.
</p>

<p>
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.
</p>

<p>
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?
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap55"></a>THE FEDERALIST.<br>
No. LV.</h2>

<p class="center">
The Total Number of the House of Representatives
</p>

<p class="center">
From the New York Packet. Friday, February 15, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
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.
</p>

<p>
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.
</p>

<p>
Had every Athenian citizen been a Socrates, every Athenian assembly would still
have been a mob.
</p>

<p>
It is necessary also to recollect here the observations which were applied to
the case of biennial elections. For the same reason that the limited powers of
the Congress, and the control of the State legislatures, justify less frequent
elections than the public safely might otherwise require, the members of the
Congress need be less numerous than if they possessed the whole power of
legislation, and were under no other than the ordinary restraints of other
legislative bodies. 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.
</p>

<p>
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?
</p>

<p>
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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap56"></a>THE FEDERALIST.<br>
No. LVI.</h2>

<p class="center">
The Same Subject Continued (The Total Number of the House of Representatives)
</p>

<p class="center">
From the New York Packet. Tuesday, February 19, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The second charge against the House of Representatives is, that it will be too
small to possess a due knowledge of the interests of its constituents. 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.
</p>

<p>
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.
</p>

<p>
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.<a
href="#fn56.1" id="fnref56.1"><sup>[1]</sup></a> It cannot be supposed that
the half thus elected, and who do not even reside among the people at large,
can add any thing either to the security of the people against the government,
or to the knowledge of their circumstances and interests in the legislative
councils. On the contrary, it is notorious, that they are more frequently the
representatives and instruments of the executive magistrate, than the guardians
and advocates of the popular rights. They might therefore, with great
propriety, be considered as something more than a mere deduction from the real
representatives of the nation. We will, however, consider them in this light
alone, and will not extend the deduction to a considerable number of others,
who do not reside among their constitutents, are very faintly connected with
them, and have very little particular knowledge of their affairs. With all
these concessions, two hundred and seventy-nine persons only will be the
depository of the safety, interest, and happiness of eight millions that is to
say, there will be one representative only to maintain the rights and explain
the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED AND SEVENTY constitutents,
in an assembly exposed to the whole force of executive influence, and extending
its authority to every object of legislation within a nation whose affairs are
in the highest degree diversified and complicated. Yet it is very certain, not
only that a valuable portion of freedom has been preserved under all these
circumstances, but that the defects in the British code are chargeable, in a
very small proportion, on the ignorance of the legislature concerning the
circumstances of the people. Allowing to this case the weight which is due to
it, and comparing it with that of the House of Representatives as above
explained it seems to give the fullest assurance, that a representative for
every THIRTY THOUSAND INHABITANTS will render the latter both a safe and
competent guardian of the interests which will be confided to it.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn56.1"></a> <a href="#fnref56.1">[1]</a>
Burgh’s <i>Political Disquisitions</i>.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap57"></a>THE FEDERALIST.<br>
No. LVII.</h2>

<p class="center">
The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the
Many Considered in Connection with Representation
</p>

<p class="center">
From the New York Packet. Tuesday, February 19, 1788.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
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.
</p>

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

<p>
In the third place, those ties which bind the representative to his
constituents are strengthened by motives of a more selfish nature. His pride
and vanity attach him to a form of government which favors his pretensions and
gives him a share in its honors and distinctions. Whatever hopes or projects
might be entertained by a few aspiring characters, it must generally happen
that a great proportion of the men deriving their advancement from their
influence with the people, would have more to hope from a preservation of the
favor, than from innovations in the government subversive of the authority of
the people. 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.
</p>

<p>
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?
</p>

<p>
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.
</p>

<p>
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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap58"></a>THE FEDERALIST.<br>
No. LVIII.</h2>

<p class="center">
Objection That The Number of Members Will Not Be Augmented as the Progress of
Population Demands Considered
</p>

<p class="center">
MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The remaining charge against the House of Representatives, which I am to
examine, is grounded on a supposition that the number of members will not be
augmented from time to time, as the progress of population may demand. 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.
</p>

<p>
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap59"></a>THE FEDERALIST.<br>
No. LIX.</h2>

<p class="center">
Concerning the Power of Congress to Regulate the Election of Members
</p>

<p class="center">
From the New York Packet. Friday, February 22, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The natural order of the subject leads us to consider, in this place, that
provision of the Constitution which authorizes the national legislature to
regulate, in the last resort, the election of its own members. It is in these
words: “The TIMES, PLACES, and MANNER of holding elections for senators and
representatives shall be prescribed in each State by the legislature thereof;
but the Congress may, at any time, by law, make or alter SUCH REGULATIONS,
except as to the PLACES of choosing senators.”<a href="#fn59.1" id="fnref59.1"><sup>[1]</sup></a> 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.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn59.1"></a> <a href="#fnref59.1">[1]</a>
1st clause, 4th section, of the 1st article.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap60"></a>THE FEDERALIST.<br>
No. LX.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the Power of Congress to Regulate the Election of Members)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, February 26, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

<p>
But upon what principle is the discrimination of the places of election to be
made, in order to answer the purpose of the meditated preference? Are “the
wealthy and the well-born,” as they are called, confined to particular spots in
the several States? Have they, by some miraculous instinct or foresight, set
apart in each of them a common place of residence? Are they only to be met with
in the towns or cities? Or are they, on the contrary, scattered over the face
of the country as avarice or chance may have happened to cast their own lot or
that of their predecessors? If the latter is the case, (as every intelligent
man knows it to be<a href="#fn60.1" id="fnref60.1"><sup>[1]</sup></a>) is it
not evident that the policy of confining the places of election to particular
districts would be as subversive of its own aim as it would be exceptionable on
every other account? The truth is, that there is no method of securing to the
rich the preference apprehended, but by prescribing qualifications of property
either for those who may elect or be elected. But this forms no part of the
power to be conferred upon the national government. Its authority would be
expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of
elections. The qualifications of the persons who may choose or be chosen, as
has been remarked upon other occasions, are defined and fixed in the
Constitution, and are unalterable by the legislature.
</p>

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn60.1"></a> <a href="#fnref60.1">[1]</a>
Particularly in the Southern States and in this State.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap61"></a>THE FEDERALIST.<br>
No. LXI.</h2>

<p class="center">
The Same Subject Continued
</p>

<p class="center">
(Concerning the Power of Congress to Regulate the Election of Members)
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, February 26, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap62"></a>THE FEDERALIST.<br>
No. LXII.</h2>

<p class="center">
The Senate
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

<p>
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.
</p>

<p>
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?
</p>

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

<p>
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.
</p>

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

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

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

<p>
Another effect of public instability is the unreasonable advantage it gives to
the sagacious, the enterprising, and the moneyed few over the industrious and
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.
</p>

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap63"></a>THE FEDERALIST.<br>
No. LXIII.</h2>

<p class="center">
The Senate Continued
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON OR MADISON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>
But if 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.
</p>

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap64"></a>THE FEDERALIST.<br>
No. LXIV.</h2>

<p class="center">
The Powers of the Senate
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, March 7, 1788.
</p>

<p class="center">
JAY
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap65"></a>THE FEDERALIST.<br>
No. LXV.</h2>

<p class="center">
The Powers of the Senate Continued
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, March 7, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap66"></a>THE FEDERALIST.<br>
No. LXVI.</h2>

<p class="center">
Objections to the Power of the Senate To Set as a Court for Impeachments
Further Considered
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, March 11, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

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

<p>
The FIRST of these objections is, that the provision in question confounds
legislative and judiciary authorities in the same body, in violation of that
important and 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.
</p>

<p>
It is curious to observe, with what vehemence this part of the plan is
assailed, on the principle here taken notice of, by men who profess to admire,
without exception, the constitution of this State; while that constitution
makes the Senate, together with the chancellor and judges of the Supreme Court,
not only a court of impeachments, but the highest judicatory in the State, in
all causes, civil and criminal. The proportion, in point of numbers, of the
chancellor and judges to the senators, is so inconsiderable, that the judiciary
authority of New York, in the last resort, may, with truth, be said to reside
in its Senate. If the plan of the convention be, in this respect, chargeable
with a departure from the celebrated maxim which has been so often mentioned,
and seems to be so little understood, how much more culpable must be the
constitution of New York?<a href="#fn66.1" id="fnref66.1"><sup>[1]</sup></a>
</p>

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

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

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

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

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

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

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

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

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

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

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn66.1"></a> <a href="#fnref66.1">[1]</a>
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.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap67"></a>THE FEDERALIST.<br>
No. LXVII.</h2>

<p class="center">
The Executive Department
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, March 11, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The constitution of the executive department of the proposed government, claims
next our attention.
</p>

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

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

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

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

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

<p>
This bold experiment upon the discernment of his countrymen has been hazarded
by a writer who (whatever may be his real merit) has had no inconsiderable
share in the applauses of his party;<a href="#fn67.1" id="fnref67.1"><sup>[1]</sup></a> and who, upon this false and unfounded
suggestion, has built a series of observations equally false and unfounded. Let
him now be confronted with the evidence of the fact, and let him, if he be
able, justify or extenuate the shameful outrage he has offered to the dictates
of truth and to the rules of fair dealing.
</p>

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

<p>
The first of these two clauses, it is clear, only provides a mode for
appointing such officers, “whose appointments are NOT OTHERWISE PROVIDED FOR in
the Constitution, and which SHALL BE ESTABLISHED BY LAW”; of course it cannot
extend to the appointments of senators, whose appointments are OTHERWISE
PROVIDED FOR in the Constitution,<a href="#fn67.2" id="fnref67.2"><sup>[2]</sup></a> and who are ESTABLISHED BY THE
CONSTITUTION, and will not require a future establishment by law. This position
will hardly be contested.
</p>

<p>
The last of these two clauses, it is equally clear, cannot be understood to
comprehend the power of filling vacancies in the Senate, for the following
reasons: First. The relation in which that clause stands to the other, which
declares the general mode of appointing officers of the United States, denotes
it to be nothing more than a supplement to the other, for the purpose of
establishing an auxiliary method of appointment, in cases to which the general
method was inadequate. The ordinary power of appointment is confined to the
President and Senate JOINTLY, and can therefore only be exercised during the
session of the Senate; but as it would have been improper to oblige this body
to be continually in session for the appointment of officers and as vacancies
might happen IN THEIR RECESS, which it might be necessary for the public
service to fill without delay, the succeeding clause is evidently intended to
authorize the President, SINGLY, to make temporary appointments “during the
recess of the Senate, by granting commissions which shall expire at the end of
their next session.” 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.
</p>

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

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn67.1"></a> <a href="#fnref67.1">[1]</a>
See C<small>ATO</small>, No. V.
</p>

<p class="footnote">
<a id="fn67.2"></a> <a href="#fnref67.2">[2]</a>
Article 1, section 3, clause 1.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap68"></a>THE FEDERALIST.<br>
No. LXVIII.</h2>

<p class="center">
The Mode of Electing the President
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, March 14, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The mode of appointment of the Chief Magistrate of the United States is almost
the only part of the system, of any consequence, which has escaped without
severe censure, or which has received the slightest mark of approbation from
its opponents. The most plausible of these, who has appeared in print, has even
deigned to admit that the election of the President is pretty well guarded.<a
href="#fn68.1" id="fnref68.1"><sup>[1]</sup></a> 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.
</p>

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

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

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

<p>
Nothing was more to be desired than that every practicable obstacle should be
opposed to cabal, intrigue, and corruption. These most deadly adversaries of
republican government might naturally have been expected to make their
approaches from more than one quarter, but chiefly from the desire in foreign
powers to gain an improper ascendant in our councils. How could they better
gratify this, than by raising a creature of their own to the chief magistracy
of the Union? But the convention have guarded against all danger of this sort,
with the most provident and judicious attention. They have not made the
appointment of the President to depend on any preexisting bodies of men, who
might be tampered with beforehand to prostitute their votes; but they have
referred it in the first instance to an immediate act of the people of America,
to be exerted in the choice of persons for the temporary and sole purpose of
making the appointment. And they have excluded from eligibility to this trust,
all those who from situation might be suspected of too great devotion to the
President in office. No senator, representative, or other person holding a
place of trust or profit under the United States, can be of the numbers of the
electors. Thus without corrupting the body of the people, the immediate agents
in the election will at least enter upon the task free from any sinister bias.
Their transient existence, and their detached situation, already taken notice
of, afford a satisfactory prospect of their continuing so, to the conclusion of
it. The business of corruption, when it is to embrace so considerable a number
of men, requires time as well as means. Nor would it be found easy suddenly to
embark them, dispersed as they would be over thirteen States, in any
combinations founded upon motives, which though they could not properly be
denominated corrupt, might yet be of a nature to mislead them from their duty.
</p>

<p>
Another and no less important desideratum was, that the Executive should be
independent for his continuance in office on all but the people themselves. He
might otherwise be tempted to sacrifice his duty to his complaisance for those
whose favor was necessary to the duration of his official consequence. This
advantage will also be secured, by making his re-election to depend on a
special body of representatives, deputed by the society for the single purpose
of making the important choice.
</p>

<p>
All these advantages will happily combine in the plan devised by the
convention; which is, that the people of each State shall choose a number of
persons as electors, equal to the number of senators and representatives of
such State in the national government, who shall assemble within the State, and
vote for some fit person as President. Their votes, thus given, are to be
transmitted to the seat of the national government, and the person who may
happen to have a majority of the whole number of votes will be the President.
But as a majority of the votes might not always happen to centre in one man,
and as it might be unsafe to permit less than a majority to be conclusive, it
is provided that, in such a contingency, the House of Representatives shall
select out of the candidates who shall have the five highest number of votes,
the man who in their opinion may be best qualified for the office.
</p>

<p>
The process of election affords a moral certainty, that the office of President
will never fall to the lot of any man who is not in an eminent degree endowed
with the requisite qualifications. Talents for low intrigue, and the little
arts of popularity, may alone suffice to elevate a man to the first honors in a
single State; but it will require other talents, and a different kind of merit,
to establish him in the esteem and confidence of the whole Union, or of so
considerable a portion of it as would be necessary to make him a successful
candidate for the distinguished office of President of the United States. It
will not be too strong to say, that there will be a constant probability of
seeing the station filled by characters pre-eminent for ability and virtue. And
this will be thought no inconsiderable recommendation of the Constitution, by
those who are able to estimate the share which the executive in every
government must necessarily have in its good or ill administration. Though we
cannot acquiesce in the political heresy of the poet who says:
</p>

<p class="poem">
“For forms of government let fools contest<br>
That which is best administered is best,”
</p>

<p class="noindent">
yet we may safely pronounce, that the true test of a good government is its
aptitude and tendency to produce a good administration.
</p>

<p>
The Vice-President is to be chosen in the same manner with the President; with
this difference, that the Senate is to do, in respect to the former, what is to
be done by the House of Representatives, in respect to the latter.
</p>

<p>
The appointment of an extraordinary person, as Vice-President, has been
objected to as superfluous, if not mischievous. It has been alleged, that it
would have been preferable to have authorized the Senate to elect out of their
own body an officer answering that description. But two considerations seem to
justify the ideas of the convention in this respect. One is, that to secure at
all times the possibility of a definite resolution of the body, it is necessary
that the President should have only a casting vote. And to take the senator of
any State from his seat as senator, to place him in that of President of the
Senate, would be to exchange, in regard to the State from which he came, a
constant for a contingent vote. The other consideration is, that as the
Vice-President may occasionally become a substitute for the President, in the
supreme executive magistracy, all the reasons which recommend the mode of
election prescribed for the one, apply with great if not with equal force to
the manner of appointing the other. It is remarkable that in this, as in most
other instances, the objection which is made would lie against the constitution
of this State. We have a Lieutenant-Governor, chosen by the people at large,
who presides in the Senate, and is the constitutional substitute for the
Governor, in casualties similar to those which would authorize the
Vice-President to exercise the authorities and discharge the duties of the
President.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn68.1"></a> <a href="#fnref68.1">[1]</a>
<i>Vide Federal Farmer</i>.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap69"></a>THE FEDERALIST.<br>
No. LXIX.</h2>

<p class="center">
The Real Character of the Executive
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, March 14, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
I proceed now to trace the real characters of the proposed Executive, as they
are marked out in the plan of the convention. This will serve to place in a
strong light the unfairness of the representations which have been made in
regard to it.
</p>

<p>
The first thing which strikes our attention is, that the executive authority,
with few exceptions, is to be vested in a single magistrate. This will
scarcely, however, be considered as a point upon which any comparison can be
grounded; for if, in this particular, there be a resemblance to the king of
Great Britain, there is not less a resemblance to the Grand Seignior, to the
khan of Tartary, to the Man of the Seven Mountains, or to the governor of New
York.
</p>

<p>
That magistrate is to be elected for FOUR years; and is to be re-eligible as
often as the people of the United States shall think him worthy of their
confidence. In these circumstances there is a total dissimilitude between HIM
and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown
as a patrimony descendible to his heirs forever; but there is a close analogy
between HIM and a governor of New York, who is elected for THREE years, and is
re-eligible without limitation or intermission. If we consider how much less
time would be requisite for establishing a dangerous influence in a single
State, than for establishing a like influence throughout the United States, we
must conclude that a duration of FOUR years for the Chief Magistrate of the
Union is a degree of permanency far less to be dreaded in that office, than a
duration of THREE years for a corresponding office in a single State.
</p>

<p>
The President of the United States would be liable to be impeached, tried, and,
upon conviction of treason, bribery, or other high crimes or misdemeanors,
removed from office; and would afterwards be liable to prosecution and
punishment in the ordinary course of law. The person of the king of Great
Britain is sacred and inviolable; there is no constitutional tribunal to which
he is amenable; no punishment to which he can be subjected without involving
the crisis of a national revolution. In this delicate and important
circumstance of personal responsibility, the President of Confederated America
would stand upon no better ground than a governor of New York, and upon worse
ground than the governors of Maryland and Delaware.
</p>

<p>
The President of the United States is to have power to return a bill, which
shall have passed the two branches of the legislature, for reconsideration; and
the bill so returned is to become a law, if, upon that reconsideration, it be
approved by two thirds of both houses. The king of Great Britain, on his part,
has an absolute negative upon the acts of the two houses of Parliament. The
disuse of that power for a considerable time past does not affect the reality
of its existence; and is to be ascribed wholly to the crown’s having found the
means of substituting influence to authority, or the art of gaining a majority
in one or the other of the two houses, to the necessity of exerting a
prerogative which could seldom be exerted without hazarding some degree of
national agitation. The qualified negative of the President differs widely from
this absolute negative of the British sovereign; and tallies exactly with the
revisionary authority of the council of revision of this State, of which the
governor is a constituent part. In this respect the power of the President
would exceed that of the governor of New York, because the former would
possess, singly, what the latter shares with the chancellor and judges; but it
would be precisely the same with that of the governor of Massachusetts, whose
constitution, as to this article, seems to have been the original from which
the convention have copied.
</p>

<p>
The President is to be the “commander-in-chief of the army and navy of the
United States, and of the militia of the several States, when called into the
actual service of the United States. He is to have power to grant reprieves and
pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT;
to recommend to the consideration of Congress such measures as he shall judge
necessary and expedient; to convene, on extraordinary occasions, both houses of
the legislature, or either of them, and, in case of disagreement between them
WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he
shall think proper; to take care that the laws be faithfully executed; and to
commission all officers of the United States.” In most of these particulars,
the power of the President will resemble equally that of the king of Great
Britain and of the governor of New York. The most material points of difference
are these: First. The President will have only the occasional command of such
part of the militia of the nation as by legislative provision may be called
into the actual service of the Union. The king of Great Britain and the
governor of New York have at all times the entire command of all the militia
within their several jurisdictions. In this article, therefore, the power of
the President would be inferior to that of either the monarch or the governor.
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.<a href="#fn69.1" id="fnref69.1"><sup>[1]</sup></a> 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.
</p>

<p>
The President is to have power, with the advice and consent of the Senate, to
make treaties, provided two thirds of the senators present concur. The king of
Great Britain is the sole and absolute representative of the nation in all
foreign transactions. He can of his own accord make treaties of peace,
commerce, alliance, and of every other description. It has been insinuated,
that his authority in this respect is not conclusive, and that his conventions
with foreign powers are subject to the revision, and stand in need of the
ratification, of Parliament. But I believe this doctrine was never heard of,
until it was broached upon the present occasion. Every jurist<a href="#fn69.2" id="fnref69.2"><sup>[2]</sup></a> of that kingdom, and every other man
acquainted with its Constitution, knows, as an established fact, that the
prerogative of making treaties exists in the crown in its utmost plentitude;
and that the compacts entered into by the royal authority have the most
complete legal validity and perfection, independent of any other sanction. The
Parliament, it is true, is sometimes seen employing itself in altering the
existing laws to conform them to the stipulations in a new treaty; and this may
have possibly given birth to the imagination, that its co-operation was
necessary to the obligatory efficacy of the treaty. But this parliamentary
interposition proceeds from a different cause: from the necessity of adjusting
a most artificial and intricate system of revenue and commercial laws, to the
changes made in them by the operation of the treaty; and of adapting new
provisions and precautions to the new state of things, to keep the machine from
running into disorder. In this respect, therefore, there is no comparison
between the intended power of the President and the actual power of the British
sovereign. The one can perform alone what the other can do only with the
concurrence of a branch of the legislature. It must be admitted, that, in this
instance, the power of the federal Executive would exceed that of any State
Executive. But this arises naturally from the sovereign power which relates to
treaties. If the Confederacy were to be dissolved, it would become a question,
whether the Executives of the several States were not solely invested with that
delicate and important prerogative.
</p>

<p>
The President is also to be authorized to receive ambassadors and other public
ministers. This, though it has been a rich theme of declamation, is more a
matter of dignity than of authority. It is a circumstance which will be without
consequence in the administration of the government; and it was far more
convenient that it should be arranged in this manner, than that there should be
a necessity of convening the legislature, or one of its branches, upon every
arrival of a foreign minister, though it were merely to take the place of a
departed predecessor.
</p>

<p>
The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE,
to appoint ambassadors and other public ministers, judges of the Supreme Court,
and in general all officers of the United States established by law, and whose
appointments are not otherwise provided for by the Constitution. The king of
Great Britain is emphatically and truly styled the fountain of honor. He not
only appoints to all offices, but can create offices. He can confer titles of
nobility at pleasure; and has the disposal of an immense number of church
preferments. There is evidently a great inferiority in the power of the
President, in this particular, to that of the British king; nor is it equal to
that of the governor of New York, if we are to interpret the meaning of the
constitution of the State by the practice which has obtained under it. The
power of appointment is with us lodged in a council, composed of the governor
and four members of the Senate, chosen by the Assembly. The governor CLAIMS,
and has frequently EXERCISED, the right of nomination, and is ENTITLED to a
casting vote in the appointment. If he really has the right of nominating, his
authority is in this respect equal to that of the President, and exceeds it in
the article of the casting vote. In the national government, if the Senate
should be divided, no appointment could be made; in the government of New York,
if the council should be divided, the governor can turn the scale, and confirm
his own nomination.<a href="#fn69.3" id="fnref69.3"><sup>[3]</sup></a> If we
compare the publicity which must necessarily attend the mode of appointment by
the President and an entire branch of the national legislature, with the
privacy in the mode of appointment by the governor of New York, closeted in a
secret apartment with at most four, and frequently with only two persons; and
if we at the same time consider how much more easy it must be to influence the
small number of which a council of appointment consists, than the considerable
number of which the national Senate would consist, we cannot hesitate to
pronounce that the power of the chief magistrate of this State, in the
disposition of offices, must, in practice, be greatly superior to that of the
Chief Magistrate of the Union.
</p>

<p>
Hence it appears that, except as to the concurrent authority of the President
in the article of treaties, it would be difficult to determine whether that
magistrate would, in the aggregate, possess more or less power than the
Governor of New York. And it appears yet more unequivocally, that there is no
pretense for the parallel which has been attempted between him and the king of
Great Britain. But to render the contrast in this respect still more striking,
it may be of use to throw the principal circumstances of dissimilitude into a
closer group.
</p>

<p>
The President of the United States would be an officer elected by the people
for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.
The one would be amenable to personal punishment and disgrace; the person of
the other is sacred and inviolable. The one would have a QUALIFIED negative
upon the acts of the legislative body; the other has an ABSOLUTE negative. The
one would have a right to command the military and naval forces of the nation;
the other, in addition to this right, possesses that of DECLARING war, and of
RAISING and REGULATING fleets and armies by his own authority. The one would
have a concurrent power with a branch of the legislature in the formation of
treaties; the other is the SOLE POSSESSOR of the power of making treaties. The
one would have a like concurrent authority in appointing to offices; the other
is the sole author of all appointments. The one can confer no privileges
whatever; the other can make denizens of aliens, noblemen of commoners; can
erect corporations with all the rights incident to corporate bodies. The one
can prescribe no rules concerning the commerce or currency of the nation; the
other is in several respects the arbiter of commerce, and in this capacity can
establish markets and fairs, can regulate weights and measures, can lay
embargoes for a limited time, can coin money, can authorize or prohibit the
circulation of foreign coin. The one has no particle of spiritual jurisdiction;
the other is the supreme head and governor of the national church! What answer
shall we give to those who would persuade us that things so unlike resemble
each other? The same that ought to be given to those who tell us that a
government, the whole power of which would be in the hands of the elective and
periodical servants of the people, is an aristocracy, a monarchy, and a
despotism.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn69.1"></a> <a href="#fnref69.1">[1]</a>
A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted
that the king of Great Britain owes his prerogative as commander-in-chief to an
annual mutiny bill. The truth is, on the contrary, that his prerogative, in
this respect, is immemorial, and was only disputed, “contrary to all reason and
precedent,” as Blackstone vol. i., page 262, expresses it, by the Long
Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6,
it was declared to be in the king alone, for that the sole supreme government
and command of the militia within his Majesty’s realms and dominions, and of
all forces by sea and land, and of all forts and places of strength, EVER WAS
AND IS the undoubted right of his Majesty and his royal predecessors, kings and
queens of England, and that both or either house of Parliament cannot nor ought
to pretend to the same.
</p>

<p class="footnote">
<a id="fn69.2"></a> <a href="#fnref69.2">[2]</a>
<i>Vide</i> Blackstone’s <i>Commentaries</i>, vol i., p. 257.
</p>

<p class="footnote">
<a id="fn69.3"></a> <a href="#fnref69.3">[3]</a>
Candor, however, demands an acknowledgment that I do not think the claim of the
governor to a right of nomination well founded. Yet it is always justifiable to
reason from the practice of a government, till its propriety has been
constitutionally questioned. And independent of this claim, when we take into
view the other considerations, and pursue them through all their consequences,
we shall be inclined to draw much the same conclusion.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap70"></a>THE FEDERALIST.<br>
No. LXX.</h2>

<p class="center">
(There are two slightly different versions of No. 70 included here.)
</p>

<p class="center">
The Executive Department Further Considered
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, March 18, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
There is an idea, which is not without its advocates, that a vigorous Executive
is inconsistent with the genius of republican government. The enlightened
well-wishers to this species of government must at least hope that the
supposition is destitute of foundation; since they can never admit its truth,
without at the same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of good
government. It is essential to the protection of the community against foreign
attacks; it is not less essential to the steady administration of the laws; to
the protection of property against those irregular and high-handed combinations
which sometimes interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of faction, and of
anarchy. Every man the least conversant in Roman 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.
</p>

<p>
There can be no need, however, to multiply arguments or examples on this head.
A feeble Executive implies a feeble execution of the government. A feeble
execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be, in practice, a bad government.
</p>

<p>
Taking it for granted, therefore, that all men of sense will agree in the
necessity of an energetic Executive, it will only remain to inquire, what are
the ingredients which constitute this energy? How far can they be combined with
those other ingredients which constitute safety in the republican sense? And
how far does this combination characterize the plan which has been reported by
the convention?
</p>

<p>
The ingredients which constitute energy in the Executive are, first, unity;
secondly, duration; thirdly, an adequate provision for its support; fourthly,
competent powers.
</p>

<p>
The ingredients which constitute safety in the repub lican sense are, first, a
due dependence on the people, secondly, a due responsibility.
</p>

<p>
Those politicians and statesmen who have been the most celebrated for the
soundness of their principles and for the justice of their views, have declared
in favor of a single Executive and a numerous legislature. They have with great
propriety, considered energy as the most necessary qualification of the former,
and have regarded this as most applicable to power in a single hand, while they
have, with equal propriety, considered the latter as best adapted to
deliberation and wisdom, and best calculated to conciliate the confidence of
the people and to secure their privileges and interests.
</p>

<p>
That unity is conducive to energy will not be disputed. Decision, activity,
secrecy, and despatch will generally characterize the proceedings of one man in
a much more eminent degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be diminished.
</p>

<p>
This unity may be destroyed in two ways: either by vesting the power in two or
more magistrates of equal dignity and authority; or by vesting it ostensibly in
one man, subject, in whole or in part, to the control and co-operation of
others, in the capacity of counsellors to him. Of the first, the two Consuls of
Rome may serve as an example; of the last, we shall find examples in the
constitutions of several of the States. New York and New Jersey, if I recollect
right, are the only States which have intrusted the executive authority wholly
to single men.<a href="#fn70.1" id="fnref70.1"><sup>[1]</sup></a> Both these
methods of destroying the unity of the Executive have their partisans; but the
votaries of an executive council are the most numerous. They are both liable,
if not to equal, to similar objections, and may in most lights be examined in
conjunction.
</p>

<p>
The experience of other nations will afford little instruction on this head. As
far, however, as it teaches any thing, it teaches us not to be enamoured of
plurality in the Executive. We have seen that the Achaeans, on an experiment of
two Praetors, were induced to abolish one. The Roman history records many
instances of mischiefs to the republic from the dissensions between the
Consuls, and between the military Tribunes, who were at times substituted for
the Consuls. But it gives us no specimens of any peculiar advantages derived to
the state from the circumstance of the plurality of those magistrates. That the
dissensions between them were not more frequent or more fatal, is a matter of
astonishment, until we advert to the singular position in which the republic
was almost continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a division of
the government between them. The patricians engaged in a perpetual struggle
with the plebeians for the preservation of their ancient authorities and
dignities; the Consuls, who were generally chosen out of the former body, were
commonly united by the personal interest they had in the defense of the
privileges of their order. In addition to this motive of union, after the arms
of the republic had considerably expanded the bounds of its empire, it became
an established custom with the Consuls to divide the administration between
themselves by lot one of them remaining at Rome to govern the city and its
environs, the other taking the command in the more distant provinces. This
expedient must, no doubt, have had great influence in preventing those
collisions and rivalships which might otherwise have embroiled the peace of the
republic.
</p>

<p>
But quitting the dim light of historical research, attaching ourselves purely
to the dictates of reason and good sense, we shall discover much greater cause
to reject than to approve the idea of plurality in the Executive, under any
modification whatever.
</p>

<p>
Wherever two or more persons are engaged in any common enterprise or pursuit,
there is always danger of difference of opinion. If it be a public trust or
office, in which they are clothed with equal dignity and authority, there is
peculiar danger of personal emulation and even animosity. From either, and
especially from all these causes, the most bitter dissensions are apt to
spring. Whenever these happen, they lessen the respectability, weaken the
authority, and distract the plans and operation of those whom they divide. If
they should unfortunately assail the supreme executive magistracy of a country,
consisting of a plurality of persons, they might impede or frustrate the most
important measures of the government, in the most critical emergencies of the
state. And what is still worse, they might split the community into the most
violent and irreconcilable factions, adhering differently to the different
individuals who composed the magistracy.
</p>

<p>
Men often oppose a thing, merely because they have had no agency in planning
it, or because it may have been planned by those whom they dislike. But if they
have been consulted, and have happened to disapprove, opposition then becomes,
in their estimation, an indispensable duty of self-love. They seem to think
themselves bound in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their sentiments.
Men of upright, benevolent tempers have too many opportunities of remarking,
with horror, to what desperate lengths this disposition is sometimes carried,
and how often the great interests of society are sacrificed to the vanity, to
the conceit, and to the obstinacy of individuals, who have credit enough to
make their passions and their caprices interesting to mankind. Perhaps the
question now before the public may, in its consequences, afford melancholy
proofs of the effects of this despicable frailty, or rather detestable vice, in
the human character.
</p>

<p>
Upon the principles of a free government, inconveniences from the source just
mentioned must necessarily be submitted to in the formation of the legislature;
but it is unnecessary, and therefore unwise, to introduce them into the
constitution of the Executive. It is here too that they may be most pernicious.
In the legislature, promptitude of decision is oftener an evil than a benefit.
The differences of opinion, and the jarrings of parties in that department of
the government, though they may sometimes obstruct salutary plans, yet often
promote deliberation and circumspection, and serve to check excesses in the
majority. When a resolution too is once taken, the opposition must be at an
end. That resolution is a law, and resistance to it punishable. But no
favorable circumstances palliate or atone for the disadvantages of dissension
in the executive department. Here, they are pure and unmixed. There is no point
at which they cease to operate. They serve to embarrass and weaken the
execution of the plan or measure to which they relate, from the first step to
the final conclusion of it. They constantly counteract those qualities in the
Executive which are the most necessary ingredients in its composition, vigor
and expedition, and this without 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.
</p>

<p>
It must be confessed that these observations apply with principal weight to the
first case supposed that is, to a plurality of magistrates of equal dignity and
authority a scheme, the advocates for which are not likely to form a numerous
sect; but they apply, though not with equal, yet with considerable weight to
the project of a council, whose concurrence is made constitutionally necessary
to the operations of the ostensible Executive. An artful cabal in that council
would be able to distract and to enervate the whole system of administration.
If no such cabal should exist, the mere diversity of views and opinions would
alone be sufficient to tincture the exercise of the executive authority with a
spirit of habitual feebleness and dilatoriness.
</p>

<p>
But one of the weightiest objections to a plurality in the Executive, and which
lies as much against the last as the first plan, is, that it tends to conceal
faults and destroy responsibility. Responsibility is of two kinds to censure
and to punishment. The first is the more important of the two, especially in an
elective office. Man, in public trust, will much oftener act in such a manner
as to render him unworthy of being any longer trusted, than in such a manner as
to make him obnoxious to legal punishment. But the multiplication of the
Executive adds to the difficulty of detection in either case. It often becomes
impossible, amidst mutual accusations, to determine on whom the blame or the
punishment of a pernicious measure, or series of pernicious measures, ought
really to fall. It is shifted from one to another with so much dexterity, and
under such plausible appearances, that the public opinion is left in suspense
about the real author. The circumstances which may have led to any national
miscarriage or misfortune are sometimes so complicated that, where there are a
number of actors who may have had different degrees and kinds of agency, though
we may clearly see upon the whole that there has been mismanagement, yet it may
be impracticable to pronounce to whose account the evil which may have been
incurred is truly chargeable.
</p>

<p>
“I was overruled by my council. The council were so divided in their opinions
that it was impossible to obtain any better resolution on the point.” These and
similar pretexts are constantly at hand, whether true or false. And who is
there that will either take the trouble or incur the odium, of a strict
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?
</p>

<p>
In the single instance in which the governor of this State is coupled with a
council that is, in the appointment to offices, we have seen the mischiefs of
it in the view now under consideration. Scandalous appointments to important
offices have been made. Some cases, indeed, have been so flagrant that ALL
PARTIES have agreed in the impropriety of the thing. When inquiry has been
made, the blame has been laid by the governor on the members of the council,
who, on their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their interests
have been committed to hands so unqualified and so manifestly improper. In
tenderness to individuals, I forbear to descend to particulars.
</p>

<p>
It is evident from these considerations, that the plurality of the Executive
tends to deprive the people of the two greatest securities they can have for
the faithful exercise of any delegated power, first, the restraints of public
opinion, which lose their efficacy, as well on account of the division of the
censure attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, 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.
</p>

<p>
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.
</p>

<p>
But in a republic, where every magistrate ought to be personally responsible
for his behavior in office the reason which in the British Constitution
dictates the propriety of a council, not only ceases to apply, but turns
against the institution. In the monarchy of Great Britain, it furnishes a
substitute for the prohibited responsibility of the chief magistrate, which
serves in some degree as a hostage to the national justice for his good
behavior. In the American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief Magistrate
himself.
</p>

<p>
The idea of a council to the Executive, which has so generally obtained in the
State constitutions, has been derived from that maxim of republican jealousy
which considers power as safer in the hands of a number of men than of a single
man. If the maxim should be admitted to be applicable to the case, I should
contend that the advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at all
applicable to the executive power. I clearly concur in opinion, in this
particular, with a writer whom the celebrated Junius pronounces to be “deep,
solid, and ingenious,” that “the executive power is more easily confined when
it is ONE”;<a href="#fn70.2" id="fnref70.2"><sup>[2]</sup></a> that it is far
more safe there should be a single object for the jealousy and watchfulness of
the people; and, in a word, that all multiplication of the Executive is rather
dangerous than friendly to liberty.
</p>

<p>
A little consideration will satisfy us, that the species of security sought for
in the multiplication of the Executive, is 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,<a href="#fn70.3" id="fnref70.3"><sup>[3]</sup></a> were more to
be dreaded in their usurpation than any ONE of them would have been. No person
would think of proposing an Executive much more numerous than that body; from
six to a dozen have been suggested for the number of the council. The extreme
of these numbers, is not too great for an easy combination; and from such a
combination America would have more to fear, than from the ambition of any
single individual. A council to a magistrate, who is himself responsible for
what he does, are generally nothing better than a clog upon his good
intentions, are often the instruments and accomplices of his bad and are almost
always a cloak to his faults.
</p>

<p>
I forbear to dwell upon the subject of expense; though it be evident that if
the council should be numerous enough to answer the principal end aimed at by
the institution, the salaries of the members, who must be drawn from their
homes to reside at the seat of government, would form an item in the catalogue
of public expenditures too serious to be incurred for an object of equivocal
utility. I will only add that, prior to the appearance of the Constitution, I
rarely met with an intelligent man from any of the States, who did not admit,
as the result of experience, that the UNITY of the executive of this State was
one of the best of the distinguishing features of our constitution.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn70.1"></a> <a href="#fnref70.1">[1]</a>
New York has no council except for the single purpose of appointing to offices;
New Jersey has a council whom the governor may consult. But I think, from the
terms of the constitution, their resolutions do not bind him.
</p>

<p class="footnote">
<a id="fn70.2"></a> <a href="#fnref70.2">[2]</a>
De Lolme.
</p>

<p class="footnote">
<a id="fn70.3"></a> <a href="#fnref70.3">[3]</a>
Ten.
</p>

<p class="center">
*There are two slightly different versions of No. 70 included here.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap70a"></a>THE FEDERALIST.<br>
No. LXX.</h2>

<p class="center">
The Executive Department Further Considered
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, March 18, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
There is an idea, which is not without its advocates, that a vigorous Executive
is inconsistent with the genius of republican government. The enlightened
well-wishers to this species of government must at least hope that the
supposition is destitute of foundation; since they can never admit its truth,
without at the same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of good
government. It is essential to the protection of the community against foreign
attacks; it is not less essential to the steady administration of the laws; to
the protection of property against those irregular and high-handed combinations
which sometimes interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of faction, and of
anarchy. Every man the least conversant in Roman 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.
</p>

<p>
There can be no need, however, to multiply arguments or examples on this head.
A feeble Executive implies a feeble execution of the government. A feeble
execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be, in practice, a bad government.
</p>

<p>
Taking it for granted, therefore, that all men of sense will agree in the
necessity of an energetic Executive, it will only remain to inquire, what are
the ingredients which constitute this energy? How far can they be combined with
those other ingredients which constitute safety in the republican sense? And
how far does this combination characterize the plan which has been reported by
the convention?
</p>

<p>
The ingredients which constitute energy in the Executive are, first, unity;
secondly, duration; thirdly, an adequate provision for its support; fourthly,
competent powers.
</p>

<p>
The ingredients which constitute safety in the repub lican sense are, first, a
due dependence on the people, secondly, a due responsibility.
</p>

<p>
Those politicians and statesmen who have been the most celebrated for the
soundness of their principles and for the justice of their views, have declared
in favor of a single Executive and a numerous legislature. They have with great
propriety, considered energy as the most necessary qualification of the former,
and have regarded this as most applicable to power in a single hand, while they
have, with equal propriety, considered the latter as best adapted to
deliberation and wisdom, and best calculated to conciliate the confidence of
the people and to secure their privileges and interests.
</p>

<p>
That unity is conducive to energy will not be disputed. Decision, activity,
secrecy, and despatch will generally characterize the proceedings of one man in
a much more eminent degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be diminished.
</p>

<p>
This unity may be destroyed in two ways: either by vesting the power in two or
more magistrates of equal dignity and authority; or by vesting it ostensibly in
one man, subject, in whole or in part, to the control and co-operation of
others, in the capacity of counsellors to him. Of the first, the two Consuls of
Rome may serve as an example; of the last, we shall find examples in the
constitutions of several of the States. New York and New Jersey, if I recollect
right, are the only States which have intrusted the executive authority wholly
to single men.<a href="#fn70a.1" id="fnref70a.1"><sup>[1]</sup></a> Both
these methods of destroying the unity of the Executive have their partisans;
but the votaries of an executive council are the most numerous. They are both
liable, if not to equal, to similar objections, and may in most lights be
examined in conjunction.
</p>

<p>
The experience of other nations will afford little instruction on this head. As
far, however, as it teaches any thing, it teaches us not to be enamoured of
plurality in the Executive. We have seen that the Achaeans, on an experiment of
two Praetors, were induced to abolish one. The Roman history records many
instances of mischiefs to the republic from the dissensions between the
Consuls, and between the military Tribunes, who were at times substituted for
the Consuls. But it gives us no specimens of any peculiar advantages derived to
the state from the circumstance of the plurality of those magistrates. That the
dissensions between them were not more frequent or more fatal, is a matter of
astonishment, until we advert to the singular position in which the republic
was almost continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a division of
the government between them. The patricians engaged in a perpetual struggle
with the plebeians for the preservation of their ancient authorities and
dignities; the Consuls, who were generally chosen out of the former body, were
commonly united by the personal interest they had in the defense of the
privileges of their order. In addition to this motive of union, after the arms
of the republic had considerably expanded the bounds of its empire, it became
an established custom with the Consuls to divide the administration between
themselves by lot one of them remaining at Rome to govern the city and its
environs, the other taking the command in the more distant provinces. This
expedient must, no doubt, have had great influence in preventing those
collisions and rivalships which might otherwise have embroiled the peace of the
republic.
</p>

<p>
But quitting the dim light of historical research, attaching ourselves purely
to the dictates of reason and good se se, we shall discover much greater cause
to reject than to approve the idea of plurality in the Executive, under any
modification whatever.
</p>

<p>
Wherever two or more persons are engaged in any common enterprise or pursuit,
there is always danger of difference of opinion. If it be a public trust or
office, in which they are clothed with equal dignity and authority, there is
peculiar danger of personal emulation and even animosity. From either, and
especially from all these causes, the most bitter dissensions are apt to
spring. Whenever these happen, they lessen the respectability, weaken the
authority, and distract the plans and operation of those whom they divide. If
they should unfortunately assail the supreme executive magistracy of a country,
consisting of a plurality of persons, they might impede or frustrate the most
important measures of the government, in the most critical emergencies of the
state. And what is still worse, they might split the community into the most
violent and irreconcilable factions, adhering differently to the different
individuals who composed the magistracy.
</p>

<p>
Men often oppose a thing, merely because they have had no agency in planning
it, or because it may have been planned by those whom they dislike. But if they
have been consulted, and have happened to disapprove, opposition then becomes,
in their estimation, an indispensable duty of self-love. They seem to think
themselves bound in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their sentiments.
Men of upright, benevolent tempers have too many opportunities of remarking,
with horror, to what desperate lengths this disposition is sometimes carried,
and how often the great interests of society are sacrificed to the vanity, to
the conceit, and to the obstinacy of individuals, who have credit enough to
make their passions and their caprices interesting to mankind. Perhaps the
question now before the public may, in its consequences, afford melancholy
proofs of the effects of this despicable frailty, or rather detestable vice, in
the human character.
</p>

<p>
Upon the principles of a free government, inconveniences from the source just
mentioned must necessarily be submitted to in the formation of the legislature;
but it is unnecessary, and therefore unwise, to introduce them into the
constitution of the Executive. It is here too that they may be most pernicious.
In the legislature, promptitude of decision is oftener an evil than a benefit.
The differences of opinion, and the jarrings of parties in that department of
the government, though they may sometimes obstruct salutary plans, yet often
promote deliberation and circumspection, and serve to check excesses in the
majority. When a resolution too is once taken, the opposition must be at an
end. That resolution is a law, and resistance to it punishable. But no
favorable circumstances palliate or atone for the disadvantages of dissension
in the executive department. Here, they are pure and unmixed. There is no point
at which they cease to operate. They serve to embarrass and weaken the
execution of the plan or measure to which they relate, from the first step to
the final conclusion of it. They constantly counteract those qualities in the
Executive which are the most necessary ingredients in its composition, vigor
and expedition, and this without 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.
</p>

<p>
It must be confessed that these observations apply with principal weight to the
first case supposed that is, to a plurality of magistrates of equal dignity and
authority a scheme, the advocates for which are not likely to form a numerous
sect; but they apply, though not with equal, yet with considerable weight to
the project of a council, whose concurrence is made constitutionally necessary
to the operations of the ostensible Executive. An artful cabal in that council
would be able to distract and to enervate the whole system of administration.
If no such cabal should exist, the mere diversity of views and opinions would
alone be sufficient to tincture the exercise of the executive authority with a
spirit of habitual feebleness and dilatoriness.
</p>

<p>
But one of the weightiest objections to a plurality in the Executive, and which
lies as much against the last as the first plan, is, that it tends to conceal
faults and destroy responsibility.
</p>

<p>
Responsibility is of two kinds to censure and to punishment. The first is the
more important of the two, especially in an elective office. Man, in public
trust, will much oftener act in such a manner as to render him unworthy of
being any longer trusted, than in such a manner as to make him obnoxious to
legal punishment. But the multiplication of the Executive adds to the
difficulty of detection in either case. It often becomes impossible, amidst
mutual accusations, to determine on whom the blame or the punishment of a
pernicious measure, or series of pernicious measures, ought really to fall. It
is shifted from one to another with so much dexterity, and under such plausible
appearances, that the public opinion is left in suspense about the real author.
The circumstances which may have led to any national miscarriage or misfortune
are sometimes so complicated that, where there are a number of actors who may
have had different degrees and kinds of agency, though we may clearly see upon
the whole that there has been mismanagement, yet it may be impracticable to
pronounce to whose account the evil which may have been incurred is truly
chargeable.
</p>

<p>
“I was overruled by my council. The council were so divided in their opinions
that it was impossible to obtain any better resolution on the point.” These and
similar pretexts are constantly at hand, whether true or false. And who is
there that will either take the trouble or incur the odium, of a strict
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?
</p>

<p>
In the single instance in which the governor of this State is coupled with a
council that is, in the appointment to offices, we have seen the mischiefs of
it in the view now under consideration. Scandalous appointments to important
offices have been made. Some cases, indeed, have been so flagrant that ALL
PARTIES have agreed in the impropriety of the thing. When inquiry has been
made, the blame has been laid by the governor on the members of the council,
who, on their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their interests
have been committed to hands so unqualified and so manifestly improper. In
tenderness to individuals, I forbear to descend to particulars.
</p>

<p>
It is evident from these considerations, that the plurality of the Executive
tends to deprive the people of the two greatest securities they can have for
the faithful exercise of any delegated power, first, the restraints of public
opinion, which lose their efficacy, as well on account of the division of the
censure attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, 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.
</p>

<p>
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.
</p>

<p>
But in a republic, where every magistrate ought to be personally responsible
for his behavior in office the reason which in the British Constitution
dictates the propriety of a council, not only ceases to apply, but turns
against the institution. In the monarchy of Great Britain, it furnishes a
substitute for the prohibited responsibility of the chief magistrate, which
serves in some degree as a hostage to the national justice for his good
behavior. In the American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief Magistrate
himself.
</p>

<p>
The idea of a council to the Executive, which has so generally obtained in the
State constitutions, has been derived from that maxim of republican jealousy
which considers power as safer in the hands of a number of men than of a single
man. If the maxim should be admitted to be applicable to the case, I should
contend that the advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at all
applicable to the executive power. I clearly concur in opinion, in this
particular, with a writer whom the celebrated Junius pronounces to be “deep,
solid, and ingenious,” that “the executive power is more easily confined when
it is ONE”;<a href="#fn70a.2" id="fnref70a.2"><sup>[2]</sup></a> that it is
far more safe there should be a single object for the jealousy and watchfulness
of the people; and, in a word, that all multiplication of the Executive is
rather dangerous than friendly to liberty.
</p>

<p>
A little consideration will satisfy us, that the species of security sought for
in the multiplication of the Executive, is 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,<a href="#fn70a.3" id="fnref70a.3"><sup>[3]</sup></a> were more
to be dreaded in their usurpation than any ONE of them would have been. No
person would think of proposing an Executive much more numerous than that body;
from six to a dozen have been suggested for the number of the council. The
extreme of these numbers, is not too great for an easy combination; and from
such a combination America would have more to fear, than from the ambition of
any single individual. A council to a magistrate, who is himself responsible
for what he does, are generally nothing better than a clog upon his good
intentions, are often the instruments and accomplices of his bad and are almost
always a cloak to his faults.
</p>

<p>
I forbear to dwell upon the subject of expense; though it be evident that if
the council should be numerous enough to answer the principal end aimed at by
the institution, the salaries of the members, who must be drawn from their
homes to reside at the seat of government, would form an item in the catalogue
of public expenditures too serious to be incurred for an object of equivocal
utility. I will only add that, prior to the appearance of the Constitution, I
rarely met with an intelligent man from any of the States, who did not admit,
as the result of experience, that the UNITY of the executive of this State was
one of the best of the distinguishing features of our constitution.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn70a.1"></a> <a href="#fnref70a.1">[1]</a>
New York has no council except for the single purpose of appointing to offices;
New Jersey has a council whom the governor may consult. But I think, from the
terms of the constitution, their resolutions do not bind him.
</p>

<p class="footnote">
<a id="fn70a.2"></a> <a href="#fnref70a.2">[2]</a>
De Lolme.
</p>

<p class="footnote">
<a id="fn70a.3"></a> <a href="#fnref70a.3">[3]</a>
Ten.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap71"></a>THE FEDERALIST.<br>
No. LXXI.</h2>

<p class="center">
The Duration in Office of the Executive
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, March 18, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
Duration in office has been mentioned as the second requisite to the energy of
the Executive authority. This has relation to two objects: to the personal
firmness of the executive magistrate, in the employment of his constitutional
powers; and to the stability of the system of administration which may have
been adopted under his auspices. With regard to the first, it must be evident,
that the longer the duration in office, the greater will be the probability of
obtaining so important an advantage. It is a general principle of human nature,
that a man will be interested in whatever he possesses, in proportion to the
firmness or precariousness of the tenure by which he holds it; will be less
attached to what he holds by a momentary or uncertain title, than to what he
enjoys by a durable or certain title; and, of course, will be willing to risk
more for the sake of the one, than for the sake of the other. This remark is
not less applicable to a political privilege, or honor, or trust, than to any
article of ordinary property. The inference from it is, that a man acting in
the capacity of chief magistrate, under a consciousness that in a very short
time he MUST lay down his office, will be apt to feel himself too little
interested in it to hazard any material censure or perplexity, from the
independent exertion of his powers, or from encountering the ill-humors,
however transient, which may happen to prevail, either in a considerable part
of the society itself, or even in a predominant faction in the legislative
body. If the case should only be, that he MIGHT lay it down, unless continued
by a new choice, and if he should be desirous of being continued, his wishes,
conspiring with his fears, would tend still more powerfully to corrupt his
integrity, or debase his fortitude. In either case, feebleness and irresolution
must be the characteristics of the station.
</p>

<p>
There are some who would be inclined to regard the servile pliancy of the
Executive to a prevailing current, either in the community or in the
legislature, as its best recommendation. But such men entertain very crude
notions, as well of the purposes for which government was instituted, as of the
true means by which the public happiness may be promoted. The republican
principle demands that the deliberate sense of the community should govern the
conduct of those to whom they intrust the management of their affairs; but it
does not require an unqualified complaisance to every sudden breeze of passion,
or to every transient impulse which the people may receive from the arts of
men, who flatter their prejudices to betray their interests. It is a just
observation, that the people commonly INTEND the PUBLIC GOOD. This often
applies to their very errors. But their good sense would despise the adulator
who should pretend that they always REASON RIGHT about the MEANS of promoting
it. They know from experience that they sometimes err; and the wonder is that
they so seldom err as they do, beset, as they continually are, by the wiles of
parasites and sycophants, by the snares of the ambitious, the avaricious, the
desperate, by the artifices of men who possess their confidence more than they
deserve it, and of those who seek to possess rather than to deserve it. When
occasions present themselves, in which the interests of the people are at
variance with their inclinations, it is the duty of the persons whom they have
appointed to be the guardians of those interests, to withstand the temporary
delusion, in order to give them time and opportunity for more cool and sedate
reflection. Instances might be cited in which a conduct of this kind has saved
the people from very fatal consequences of their own mistakes, and has procured
lasting monuments of their gratitude to the men who had courage and magnanimity
enough to serve them at the peril of their displeasure.
</p>

<p>
But however inclined we might be to insist upon an unbounded complaisance in
the Executive to the inclinations of the people, we can with no propriety
contend for a like complaisance to the humors of the legislature. The latter
may sometimes stand in opposition to the former, and at other times the people
may be entirely neutral. In either supposition, it is certainly desirable that
the Executive should be in a situation to dare to act his own opinion with
vigor and decision.
</p>

<p>
The same rule which teaches the propriety of a partition between the various
branches of power, teaches us likewise that this partition ought to be so
contrived as to render the one independent of the other. To what purpose
separate the executive or the judiciary from the legislative, if both the
executive and the judiciary are so constituted as to be at the absolute
devotion of the legislative? Such a separation must be merely nominal, and
incapable of producing the ends for which it was established. It is one thing
to be subordinate to the laws, and another to be dependent on the legislative
body. The first comports with, the last violates, the fundamental principles of
good government; and, whatever may be the forms of the Constitution, unites all
power in the same hands. The tendency of the legislative authority to absorb
every other, has been fully displayed and illustrated by examples in some
preceding numbers. In governments purely republican, this tendency is almost
irresistible. The representatives of the people, in a popular assembly, seem
sometimes to fancy that they are the people themselves, and betray strong
symptoms of impatience and disgust at the least sign of opposition from any
other quarter; as if the exercise of its rights, by either the executive or
judiciary, were a breach of their privilege and an outrage to their dignity.
They often appear disposed to exert an imperious control over the other
departments; and as they commonly have the people on their side, they always
act with such momentum as to make it very difficult for the other members of
the government to maintain the balance of the Constitution.
</p>

<p>
It may perhaps be asked, how the shortness of the duration in office can affect
the independence of the Executive on the legislature, unless the one were
possessed of the power of appointing or displacing the other. One answer to
this inquiry may be drawn from the principle already remarked that is, from the
slender interest a man is apt to take in a short-lived advantage, and the
little inducement it affords him to expose himself, on account of it, to any
considerable inconvenience or hazard. Another answer, perhaps more obvious,
though not more conclusive, will result from the consideration of the influence
of the legislative body over the people; which might be employed to prevent the
re-election of a man who, by an upright resistance to any sinister project of
that body, should have made himself obnoxious to its resentment.
</p>

<p>
It may be asked also, whether a duration of four years would answer the end
proposed; and if it would not, whether a less period, which would at least be
recommended by greater security against ambitious designs, would not, for that
reason, be preferable to a longer period, which was, at the same time, too
short for the purpose of inspiring the desired firmness and independence of the
magistrate.
</p>

<p>
It cannot be affirmed, that a duration of four years, or any other limited
duration, would completely answer the end proposed; but it would contribute
towards it in a degree which would have a material influence upon the spirit
and character of the government. Between the commencement and termination of
such a period, there would always be a considerable interval, in which the
prospect of annihilation would be sufficiently remote, not to have an improper
effect upon the conduct of a man indued with a tolerable portion of fortitude;
and in which he might reasonably promise himself, that there would be time
enough before it arrived, to make the community sensible of the propriety of
the measures he might incline to pursue. Though it be probable that, as he
approached the moment when the public were, by a new election, to signify their
sense of his conduct, his confidence, and with it his firmness, would decline;
yet both the one and the other would derive support from the opportunities
which his previous continuance in the station had afforded him, of establishing
himself in the esteem and good-will of his constituents. He might, then, hazard
with safety, in proportion to the proofs he had given of his wisdom and
integrity, and to the title he had acquired to the respect and attachment of
his fellow-citizens. As, on the one hand, a duration of four years will
contribute to the firmness of the Executive in a sufficient degree to render it
a very valuable ingredient in the composition; so, on the other, it is not
enough to justify any alarm for the public liberty. If a British House of
Commons, from the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR
DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the
prerogatives of the crown and the privileges of the nobility within the limits
they conceived to be compatible with the principles of a free government, while
they raised themselves to the rank and consequence of a coequal branch of the
legislature; if they have been able, in one instance, to abolish both the
royalty and the aristocracy, and to overturn all the ancient establishments, as
well in the Church as State; if they have been able, on a recent occasion, to
make the monarch tremble at the prospect of an innovation<a href="#fn71.1" id="fnref71.1"><sup>[1]</sup></a> attempted by them, what would be to be
feared from an elective magistrate of four years’ duration, with the confined
authorities of a President of the United States? What, but that he might be
unequal to the task which the Constitution assigns him? I shall only add, that
if his duration be such as to leave a doubt of his firmness, that doubt is
inconsistent with a jealousy of his encroachments.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn71.1"></a> <a href="#fnref71.1">[1]</a>
This was the case with respect to Mr. Fox’s India bill, which was carried in
the House of Commons, and rejected in the House of Lords, to the entire
satisfaction, as it is said, of the people.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap72"></a>THE FEDERALIST.<br>
No. LXXII.</h2>

<p class="center">
The Same Subject Continued, and Re-Eligibility of the Executive Considered
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, March 21, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The administration of government, in its largest sense, comprehends all the
operations of the body politic, whether legislative, executive, or judiciary;
but in its most usual, and perhaps its most precise signification. It is
limited to executive details, and falls peculiarly within the province of the
executive department. The actual conduct of foreign negotiations, the
preparatory plans of finance, the application and disbursement of the public
moneys in conformity to the general appropriations of the legislature, the
arrangement of the army and navy, the directions of the operations of war,
these, and other matters of a like nature, constitute what seems to be most
properly understood by the administration of government. The persons,
therefore, to whose immediate management these different matters are committed,
ought to be considered as the assistants or deputies of the chief magistrate,
and on this account, they ought to derive their offices from his appointment,
at least from his nomination, and ought to be subject to his superintendence.
This view of the subject will at once suggest to us the intimate connection
between the duration of the executive magistrate in office and the stability of
the system of administration. To reverse and undo what has been done by a
predecessor, is very often considered by a successor as the best proof he can
give of his own capacity and desert; and in addition to this propensity, where
the alteration has been the result of public choice, the person substituted is
warranted in supposing that the dismission of his predecessor has proceeded
from a dislike to his measures; and that the less he resembles him, the more he
will recommend himself to the favor of his constituents. These considerations,
and the influence of personal confidences and attachments, would be likely to
induce every new President to promote a change of men to fill the subordinate
stations; and these causes together could not fail to occasion a disgraceful
and ruinous mutability in the administration of the government.
</p>

<p>
With a positive duration of considerable extent, I connect the circumstance of
re-eligibility. The first is necessary to give to the officer himself the
inclination and the resolution to act his part well, and to the community time
and leisure to observe the tendency of his measures, and thence to form an
experimental estimate of their merits. The last is necessary to enable the
people, when they see reason to approve of his conduct, to continue him in his
station, in order to prolong the utility of his talents and virtues, and to
secure to the government the advantage of permanency in a wise system of
administration.
</p>

<p>
Nothing appears more plausible at first sight, nor more ill-founded upon close
inspection, than a scheme which in relation to the present point has had some
respectable advocates, I mean that of continuing the chief magistrate in office
for a certain time, and then excluding him from it, either for a limited period
or forever after. This exclusion, whether temporary or perpetual, would have
nearly the same effects, and these effects would be for the most part rather
pernicious than salutary.
</p>

<p>
One ill effect of the exclusion would be a diminution of the inducements to
good behavior. There are few men who would not feel much less zeal in the
discharge of a duty when they were conscious that the advantages of the station
with which it was connected must be relinquished at a determinate period, than
when they were permitted to entertain a hope of OBTAINING, by MERITING, a
continuance of them. This position will not be disputed so long as it is
admitted that the desire of reward is one of the strongest incentives of human
conduct; or that the best security for the fidelity of mankind is to make their
interests coincide with their duty. Even the love of fame, the ruling passion
of the noblest minds, which would prompt a man to plan and undertake extensive
and arduous enterprises for the public benefit, requiring considerable time to
mature and perfect them, if he could flatter himself with the prospect of being
allowed to finish what he had begun, would, on the contrary, deter him from the
undertaking, when he foresaw that he must quit the scene before he could
accomplish the work, and must commit that, together with his own reputation, to
hands which might be unequal or unfriendly to the task. The most to be expected
from the generality of men, in such a situation, is the negative merit of not
doing harm, instead of the positive merit of doing good.
</p>

<p>
Another ill effect of the exclusion would be the temptation to sordid views, to
peculation, and, in some instances, to usurpation. An avaricious man, who might
happen to fill the office, looking forward to a time when he must at all events
yield up the emoluments he enjoyed, would feel a propensity, not easy to be
resisted by such a man, to make the best use of the opportunity he enjoyed
while it lasted, and might not scruple to have recourse to the most corrupt
expedients to make the harvest as abundant as it was transitory; though the
same man, probably, with a different prospect before him, might content himself
with the regular perquisites of his situation, and might even be unwilling to
risk the consequences of an abuse of his opportunities. His avarice might be a
guard upon his avarice. Add to this that the same man might be vain or
ambitious, as well as avaricious. And if he could expect to prolong his honors
by his good conduct, he might hesitate to sacrifice his appetite for them to
his appetite for gain. But with the prospect before him of approaching an
inevitable annihilation, his avarice would be likely to get the victory over
his caution, his vanity, or his ambition.
</p>

<p>
An ambitious man, too, when he found himself seated on the summit of his
country’s honors, when he looked forward to the time at which he must descend
from the exalted eminence for ever, and reflected that no exertion of merit on
his part could save him from the unwelcome reverse; such a man, in such a
situation, would be much more violently tempted to embrace a favorable
conjuncture for attempting the prolongation of his power, at every personal
hazard, than if he had the probability of answering the same end by doing his
duty.
</p>

<p>
Would it promote the peace of the community, or the stability of the government
to have half a dozen men who had had credit enough to be raised to the seat of
the supreme magistracy, wandering among the people like discontented ghosts,
and sighing for a place which they were destined never more to possess?
</p>

<p>
A third ill effect of the exclusion would be, the depriving the community of
the advantage of the experience gained by the chief magistrate in the exercise
of his office. That experience is the parent of wisdom, is an adage the truth
of which is recognized by the wisest as well as the simplest of mankind. What
more desirable or more essential than this quality in the governors of nations?
Where more desirable or more essential than in the first magistrate of a
nation? Can it be wise to put this desirable and essential quality under the
ban of the Constitution, and to declare that the moment it is acquired, its
possessor shall be compelled to abandon the station in which it was acquired,
and to which it is adapted? This, nevertheless, is the precise import of all
those regulations which exclude men from serving their country, by the choice
of their fellowcitizens, after they have by a course of service fitted
themselves for doing it with a greater degree of utility.
</p>

<p>
A fourth ill effect of the exclusion would be the banishing men from stations
in which, in certain emergencies of the state, their presence might be of the
greatest moment to the public interest or safety. There is no nation which has
not, at one period or another, experienced an absolute necessity of the
services of particular men in particular situations; perhaps it would not be
too strong to say, to the preservation of its political existence. How unwise,
therefore, must be every such self-denying ordinance as serves to prohibit a
nation from making use of its own citizens in the manner best suited to its
exigencies and circumstances! Without supposing the personal essentiality of
the man, it is evident that a change of the chief magistrate, at the breaking
out of a war, or at any similar crisis, for another, even of equal merit, would
at all times be detrimental to the community, inasmuch as it would substitute
inexperience to experience, and would tend to unhinge and set afloat the
already settled train of the administration.
</p>

<p>
A fifth ill effect of the exclusion would be, that it would operate as a
constitutional interdiction of stability in the administration. By
NECESSITATING a change of men, in the first office of the nation, it would
necessitate a mutability of measures. It is not generally to be expected, that
men will vary and measures remain uniform. The contrary is the usual course of
things. And we need not be apprehensive that there will be too much stability,
while there is even the option of changing; nor need we desire to prohibit the
people from continuing their confidence where they think it may be safely
placed, and where, by constancy on their part, they may obviate the fatal
inconveniences of fluctuating councils and a variable policy.
</p>

<p>
These are some of the disadvantages which would flow from the principle of
exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but
when we consider that even a partial exclusion would always render the
readmission of the person a remote and precarious object, the observations
which have been made will apply nearly as fully to one case as to the other.
</p>

<p>
What are the advantages promised to counterbalance these disadvantages? They
are represented to be: 1st, greater independence in the magistrate; 2d, greater
security to the people. Unless the exclusion be perpetual, there will be no
pretense to infer the first advantage. But even in that case, may he have no
object beyond his present station, to which he may sacrifice his independence?
May he have no connections, no friends, for whom he may sacrifice it? May he
not be less willing by a firm conduct, to make personal enemies, when he acts
under the impression that a time is fast approaching, on the arrival of which
he not only MAY, but MUST, be exposed to their resentments, upon an equal,
perhaps upon an inferior, footing? It is not an easy point to determine whether
his independence would be most promoted or impaired by such an arrangement.
</p>

<p>
As to the second supposed advantage, there is still greater reason to entertain
doubts concerning it. If the exclusion were to be perpetual, a man of irregular
ambition, of whom alone there could be reason in any case to entertain
apprehension, would, with infinite reluctance, yield to the necessity of taking
his leave forever of a post in which his passion for power and pre-eminence had
acquired the force of habit. And if he had been fortunate or adroit enough to
conciliate the good-will of the people, he might induce them to consider as a
very odious and unjustifiable restraint upon themselves, a provision which was
calculated to debar them of the right of giving a fresh proof of their
attachment to a favorite. There may be conceived circumstances in which this
disgust of the people, seconding the thwarted ambition of such a favorite,
might occasion greater danger to liberty, than could ever reasonably be dreaded
from the possibility of a perpetuation in office, by the voluntary suffrages of
the community, exercising a constitutional privilege.
</p>

<p>
There is an excess of refinement in the idea of disabling the people to
continue in office men who had entitled themselves, in their opinion, to
approbation and confidence; the advantages of which are at best speculative and
equivocal, and are overbalanced by disadvantages far more certain and decisive.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap73"></a>THE FEDERALIST.<br>
No. LXXIII.</h2>

<p class="center">
The Provision For The Support of the Executive, and the Veto Power
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, March 21, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The third ingredient towards constituting the vigor of the executive authority,
is an adequate provision for its support. It is evident that, without proper
attention to this article, the separation of the executive from the legislative
department would be merely nominal and nugatory. The legislature, with a
discretionary power over the salary and emoluments of the Chief Magistrate,
could render him as obsequious to their will as they might think proper to make
him. They might, in most cases, either reduce him by famine, or tempt him by
largesses, to surrender at discretion his judgment to their inclinations. These
expressions, taken in all the latitude of the terms, would no doubt convey more
than is intended. There are men who could neither be distressed nor won into a
sacrifice of their duty; but this stern virtue is the growth of few soils; and
in the main it will be found that a power over a man’s support is a power over
his will. If it were necessary to confirm so plain a truth by facts, examples
would not be wanting, even in this country, of the intimidation or seduction of
the Executive by the terrors or allurements of the pecuniary arrangements of
the legislative body.
</p>

<p>
It is not easy, therefore, to commend too highly the judicious attention which
has been paid to this subject in the proposed Constitution. It is there
provided that “The President of the United States shall, at stated times,
receive for his services a compensation WHICH SHALL NEITHER BE INCREASED NOR
DIMINISHED DURING THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL
NOT RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United States, or
any of them.” It is impossible to imagine any provision which would have been
more eligible than this. The legislature, on the appointment of a President, is
once for all to declare what shall be the compensation for his services during
the time for which he shall have been elected. This done, they will have no
power to alter it, either by increase or diminution, till a new period of
service by a new election commences. They can neither weaken his fortitude by
operating on his necessities, nor corrupt his integrity by appealing to his
avarice. Neither the Union, nor any of its members, will be at liberty to give,
nor will he be at liberty to receive, any other emolument than that which may
have been determined by the first act. He can, of course, have no pecuniary
inducement to renounce or desert the independence intended for him by the
Constitution.
</p>

<p>
The last of the requisites to energy, which have been enumerated, are competent
powers. Let us proceed to consider those which are proposed to be vested in the
President of the United States.
</p>

<p>
The first thing that offers itself to our observation, is the qualified
negative of the President upon the acts or resolutions of the two houses of the
legislature; or, in other words, his power of returning all bills with
objections, to have the effect of preventing their becoming laws, unless they
should afterwards be ratified by two thirds of each of the component members of
the legislative body.
</p>

<p>
The propensity of the legislative department to intrude upon the rights, and to
absorb the powers, of the other departments, has been already suggested and
repeated; the insufficiency of a mere parchment delineation of the boundaries
of each, has also been remarked upon; and the necessity of furnishing each with
constitutional arms for its own defense, has been inferred and proved. From
these clear and indubitable principles results the propriety of a negative,
either absolute or qualified, in the Executive, upon the acts of the
legislative branches. Without the one or the other, the former would be
absolutely unable to defend himself against the depredations of the latter. He
might gradually be stripped of his authorities by successive resolutions, or
annihilated by a single vote. And in the one mode or the other, the legislative
and executive powers might speedily come to be blended in the same hands. If
even no propensity had ever discovered itself in the legislative body to invade
the rights of the Executive, the rules of just reasoning and theoretic
propriety would of themselves teach us, that the one ought not to be left to
the mercy of the other, but ought to possess a constitutional and effectual
power of selfdefense.
</p>

<p>
But the power in question has a further use. It not only serves as a shield to
the Executive, but it furnishes an additional security against the enaction of
improper laws. It establishes a salutary check upon the legislative body,
calculated to guard the community against the effects of faction, precipitancy,
or of any impulse unfriendly to the public good, which may happen to influence
a majority of that body.
</p>

<p>
The propriety of a negative has, upon some occasions, been combated by an
observation, that it was not to be presumed a single man would possess more
virtue and wisdom than a number of men; and that unless this presumption should
be entertained, it would be improper to give the executive magistrate any
species of control over the legislative body.
</p>

<p>
But this observation, when examined, will appear rather specious than solid.
The propriety of the thing does not turn upon the supposition of superior
wisdom or virtue in the Executive, but upon the supposition that the
legislature will not be infallible; that the love of power may sometimes betray
it into a disposition to encroach upon the rights of other members of the
government; that a spirit of faction may sometimes pervert its deliberations;
that impressions of the moment may sometimes hurry it into measures which
itself, on maturer reflexion, would condemn. The primary inducement to
conferring the power in question upon the Executive is, to enable him to defend
himself; the secondary one is to increase the chances in favor of the community
against the passing of bad laws, through haste, inadvertence, or design. The
oftener the measure is brought under examination, the greater the diversity in
the situations of those who are to examine it, the less must be the danger of
those errors which flow from want of due deliberation, or of those missteps
which proceed from the contagion of some common passion or interest. It is far
less probable, that culpable views of any kind should infect all the parts of
the government at the same moment and in relation to the same object, than that
they should by turns govern and mislead every one of them.
</p>

<p>
It may perhaps be said that the power of preventing bad laws includes that of
preventing good ones; and may be used to the one purpose as well as to the
other. But this objection will have little weight with those who can properly
estimate the mischiefs of that inconstancy and mutability in the laws, which
form the greatest blemish in the character and genius of our governments. They
will consider every institution calculated to restrain the excess of
law-making, and to keep things in the same state in which they happen to be at
any given period, as much more likely to do good than harm; because it is
favorable to greater stability in the system of legislation. The injury which
may possibly be done by defeating a few good laws, will be amply compensated by
the advantage of preventing a number of bad ones.
</p>

<p>
Nor is this all. The superior weight and influence of the legislative body in a
free government, and the hazard to the Executive in a trial of strength with
that body, afford a satisfactory security that the negative would generally be
employed with great caution; and there would oftener be room for a charge of
timidity than of rashness in the exercise of it. A king of Great Britain, with
all his train of sovereign attributes, and with all the influence he draws from
a thousand sources, would, at this day, hesitate to put a negative upon the
joint resolutions of the two houses of Parliament. He would not fail to exert
the utmost resources of that influence to strangle a measure disagreeable to
him, in its progress to the throne, to avoid being reduced to the dilemma of
permitting it to take effect, or of risking the displeasure of the nation by an
opposition to the sense of the legislative body. Nor is it probable, that he
would ultimately venture to exert his prerogatives, but in a case of manifest
propriety, or extreme necessity. All well-informed men in that kingdom will
accede to the justness of this remark. A very considerable period has elapsed
since the negative of the crown has been exercised.
</p>

<p>
If a magistrate so powerful and so well fortified as a British monarch, would
have scruples about the exercise of the power under consideration, how much
greater caution may be reasonably expected in a President of the United States,
clothed for the short period of four years with the executive authority of a
government wholly and purely republican?
</p>

<p>
It is evident that there would be greater danger of his not using his power
when necessary, than of his using it too often, or too much. An argument,
indeed, against its expediency, has been drawn from this very source. It has
been represented, on this account, as a power odious in appearance, useless in
practice. But it will not follow, that because it might be rarely exercised, it
would never be exercised. In the case for which it is chiefly designed, that of
an immediate attack upon the constitutional rights of the Executive, or in a
case in which the public good was evidently and palpably sacrificed, a man of
tolerable firmness would avail himself of his constitutional means of defense,
and would listen to the admonitions of duty and responsibility. In the former
supposition, his fortitude would be stimulated by his immediate interest in the
power of his office; in the latter, by the probability of the sanction of his
constituents, who, though they would naturally incline to the legislative body
in a doubtful case, would hardly suffer their partiality to delude them in a
very plain case. I speak now with an eye to a magistrate possessing only a
common share of firmness. There are men who, under any circumstances, will have
the courage to do their duty at every hazard.
</p>

<p>
But the convention have pursued a mean in this business, which will both
facilitate the exercise of the power vested in this respect in the executive
magistrate, and make its efficacy to depend on the sense of a considerable part
of the legislative body. Instead of an absolute negative, it is proposed to
give the Executive the qualified negative already described. This is a power
which would be much more readily exercised than the other. A man who might be
afraid to defeat a law by his single VETO, might not scruple to return it for
reconsideration; subject to being finally rejected only in the event of more
than one third of each house concurring in the sufficiency of his objections.
He would be encouraged by the reflection, that if his opposition should
prevail, it would embark in it a very respectable proportion of the legislative
body, whose influence would be united with his in supporting the propriety of
his conduct in the public opinion. A direct and categorical negative has
something in the appearance of it more harsh, and more apt to irritate, than
the mere suggestion of argumentative objections to be approved or disapproved
by those to whom they are addressed. In proportion as it would be less apt to
offend, it would be more apt to be exercised; and for this very reason, it may
in practice be found more effectual. It is to be hoped that it will not often
happen that improper views will govern so large a proportion as two thirds of
both branches of the legislature at the same time; and this, too, in spite of
the counterposing weight of the Executive. It is at any rate far less probable
that this should be the case, than that such views should taint the resolutions
and conduct of a bare majority. A power of this nature in the Executive, will
often have a silent and unperceived, though forcible, operation. When men,
engaged in unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by the bare
apprehension of opposition, from doing what they would with eagerness rush
into, if no such external impediments were to be feared.
</p>

<p>
This qualified negative, as has been elsewhere remarked, is in this State
vested in a council, consisting of the governor, with the chancellor and judges
of the Supreme Court, or any two of them. It has been freely employed upon a
variety of occasions, and frequently with success. And its utility has become
so apparent, that persons who, in compiling the Constitution, were violent
opposers of it, have from experience become its declared admirers.<a
href="#fn73.1" id="fnref73.1"><sup>[1]</sup></a>
</p>

<p>
I have in another place remarked, that the convention, in the formation of this
part of their plan, had departed from the model of the constitution of this
State, in favor of that of Massachusetts. Two strong reasons may be imagined
for this preference. One is that the judges, who are to be the interpreters of
the law, might receive an improper bias, from having given a previous opinion
in their revisionary capacities; the other is that by being often associated
with the Executive, they might be induced to embark too far in the political
views of that magistrate, and thus a dangerous combination might by degrees be
cemented between the executive and judiciary departments. It is impossible to
keep the judges too distinct from every other avocation than that of expounding
the laws. It is peculiarly dangerous to place them in a situation to be either
corrupted or influenced by the Executive.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn73.1"></a> <a href="#fnref73.1">[1]</a>
Mr. Abraham Yates, a warm opponent of the plan of the convention is of this
number.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap74"></a>THE FEDERALIST.<br>
No. LXXIV.</h2>

<p class="center">
The Command of the Military and Naval Forces, and the Pardoning Power of the
Executive
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, March 25, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The President of the United States is to be “commander-in-chief of the army and
navy of the United States, and of the militia of the several States WHEN CALLED
INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision
is so evident in itself, and it is, at the same time, so consonant to the
precedents of the State constitutions in general, that little need be said to
explain or enforce it. Even those of them which have, in other respects,
coupled the chief magistrate with a council, have for the most part
concentrated the military authority in him alone. Of all the cares or concerns
of government, the direction of war most peculiarly demands those qualities
which distinguish the exercise of power by a single hand. The direction of war
implies the direction of the common strength; and the power of directing and
employing the common strength, forms a usual and essential part in the
definition of the executive authority.
</p>

<p>
“The President may require the opinion, in writing, of the principal officer in
each of the executive departments, upon any subject relating to the duties of
their respective officers.” This I consider as a mere redundancy in the plan,
as the right for which it provides would result of itself from the office.
</p>

<p>
He is also to be authorized to grant “reprieves and pardons for offenses
against the United States, EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good
policy conspire to dictate, that the benign prerogative of pardoning should be
as little as possible fettered or embarrassed. The criminal code of every
country partakes so much of necessary severity, that without an easy access to
exceptions in favor of unfortunate guilt, justice would wear a countenance too
sanguinary and cruel. As the sense of responsibility is always strongest, in
proportion as it is undivided, it may be inferred that a single man would be
most ready to attend to the force of those motives which might plead for a
mitigation of the rigor of the law, and least apt to yield to considerations
which were calculated to shelter a fit object of its vengeance. The reflection
that the fate of a fellow-creature depended on his sole fiat, would naturally
inspire scrupulousness and caution; the dread of being accused of weakness or
connivance, would beget equal circumspection, though of a different kind. On
the other hand, as men generally derive confidence from their numbers, they
might often encourage each other in an act of obduracy, and might be less
sensible to the apprehension of suspicion or censure for an injudicious or
affected clemency. On these accounts, one man appears to be a more eligible
dispenser of the mercy of government, than a body of men.
</p>

<p>
The expediency of vesting the power of pardoning in the President has, if I
mistake not, been only contested in relation to the crime of treason. This, it
has been urged, ought to have depended upon the assent of one, or both, of the
branches of the legislative body. I shall not deny that there are strong
reasons to be assigned for requiring in this particular the concurrence of that
body, or of a part of it. As treason is a crime levelled at the immediate being
of the society, when the laws have once ascertained the guilt of the offender,
there seems a fitness in referring the expediency of an act of mercy towards
him to the judgment of the legislature. And this ought the rather to be the
case, as the supposition of the connivance of the Chief Magistrate ought not to
be entirely excluded. But there are also strong objections to such a plan. It
is not to be doubted, that a single man of prudence and good sense is better
fitted, in delicate conjunctures, to balance the motives which may plead for
and against the remission of the punishment, than any numerous body whatever.
It deserves particular attention, that treason will often be connected with
seditions which embrace a large proportion of the community; as lately happened
in Massachusetts. In every such case, we might expect to see the representation
of the people tainted with the same spirit which had given birth to the
offense. And when parties were pretty equally matched, the secret sympathy of
the friends and favorers of the condemned person, availing itself of the
good-nature and weakness of others, might frequently bestow impunity where the
terror of an example was necessary. On the other hand, when the sedition had
proceeded from causes which had inflamed the resentments of the major party,
they might often be found obstinate and inexorable, when policy demanded a
conduct of forbearance and clemency. But the principal argument for reposing
the power of pardoning in this case to the Chief Magistrate is this: in seasons
of insurrection or rebellion, there are often critical moments, when a
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap75"></a>THE FEDERALIST.<br>
No. LXXV.</h2>

<p class="center">
The Treaty-Making Power of the Executive
</p>

<p class="center">
For the Independent Journal.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The President is to have power, “by and with the advice and consent of the
Senate, to make treaties, provided two thirds of the senators present concur.”
</p>

<p>
Though this provision has been assailed, on different grounds, with no small
degree of vehemence, I scruple not to declare my firm persuasion, that it is
one of the best digested and most unexceptionable parts of the plan. One ground
of objection is the trite topic of the intermixture of powers; some contending
that the President ought alone to possess the power of making treaties; others,
that it ought to have been exclusively deposited in the Senate. Another source
of objection is derived from the small number of persons by whom a treaty may
be made. Of those who espouse this objection, a part are of opinion that the
House of Representatives ought to have been associated in the business, while
another part seem to think that nothing more was necessary than to have
substituted two thirds of ALL the members of the Senate, to two thirds of the
members PRESENT. As I flatter myself the observations made in a preceding
number upon this part of the plan must have sufficed to place it, to a
discerning eye, in a very favorable light, I shall here content myself with
offering only some supplementary remarks, principally with a view to the
objections which have been just stated.
</p>

<p>
With regard to the intermixture of powers, I shall rely upon the explanations
already given in other places, of the true sense of the rule upon which that
objection is founded; and shall take it for granted, as an inference from them,
that the union of the Executive with the Senate, in the article of treaties, is
no infringement of that rule. I venture to add, that the particular nature of
the power of making treaties indicates a peculiar propriety in that union.
Though several writers on the subject of government place that power in the
class of executive authorities, yet this is evidently an arbitrary disposition;
for if we attend carefully to its operation, it will be found to partake more
of the legislative than of the executive character, though it does not seem
strictly to fall within the definition of either of them. The essence of the
legislative authority is to enact laws, or, in other words, to prescribe rules
for the regulation of the society; while the execution of the laws, and the
employment of the common strength, either for this purpose or for the common
defense, seem to comprise all the functions of the executive magistrate. The
power of making treaties is, plainly, neither the one nor the other. It relates
neither to the execution of the subsisting laws, nor to the enaction of new
ones; and still less to an exertion of the common strength. Its objects are
CONTRACTS with foreign nations, which have the force of law, but derive it from
the obligations of good faith. They are not rules prescribed by the sovereign
to the subject, but agreements between sovereign and sovereign. The power in
question seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive. The qualities
elsewhere detailed as indispensable in the management of foreign negotiations,
point out the Executive as the most fit agent in those transactions; while the
vast importance of the trust, and the operation of treaties as laws, plead
strongly for the participation of the whole or a portion of the legislative
body in the office of making them.
</p>

<p>
However proper or safe it may be in governments where the executive magistrate
is an hereditary monarch, to commit to him the entire power of making treaties,
it would be utterly unsafe and improper to intrust that power to an elective
magistrate of four years’ duration. It has been remarked, upon another
occasion, and the remark is unquestionably just, that an hereditary monarch,
though often the oppressor of his people, has personally too much stake in the
government to be in any material danger of being corrupted by foreign powers.
But a man raised from the station of a private citizen to the rank of chief
magistrate, possessed of a moderate or slender fortune, and looking forward to
a period not very remote when he may probably be obliged to return to the
station from which he was taken, might sometimes be under temptations to
sacrifice his duty to his interest, which it would require superlative virtue
to withstand. An avaricious man might be tempted to betray the interests of the
state to the acquisition of wealth. An ambitious man might make his own
aggrandizement, by the aid of a foreign power, the price of his treachery to
his constituents. The history of human conduct does not warrant that exalted
opinion of human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which concern its
intercourse with the rest of the world, to the sole disposal of a magistrate
created and circumstanced as would be a President of the United States.
</p>

<p>
To have intrusted the power of making treaties to the Senate alone, would have
been to relinquish the benefits of the constitutional agency of the President
in the conduct of foreign negotiations. It is true that the Senate would, in
that case, have the option of employing him in this capacity, but they would
also have the option of letting it alone, and pique or cabal might induce the
latter rather than the former. Besides this, the ministerial servant of the
Senate could not be expected to enjoy the confidence and respect of foreign
powers in the same degree with the constitutional representatives of the
nation, and, of course, would not be able to act with an equal degree of weight
or efficacy. While the Union would, from this cause, lose a considerable
advantage in the management of its external concerns, the people would lose the
additional security which would result from the co-operation of the Executive.
Though it would be imprudent to confide in him solely so important a trust, yet
it cannot be doubted that his participation would materially add to the safety
of the society. It must indeed be clear to a demonstration that the joint
possession of the power in question, by the President and Senate, would afford
a greater prospect of security, than the separate possession of it by either of
them. And whoever has maturely weighed the circumstances which must concur in
the appointment of a President, will be satisfied that the office will always
bid fair to be filled by men of such characters as to render their concurrence
in the formation of treaties peculiarly desirable, as well on the score of
wisdom, as on that of integrity.
</p>

<p>
The remarks made in a former number, which have been alluded to in another part
of this paper, will apply with conclusive force against the admission of the
House of Representatives to a share in the formation of treaties. The
fluctuating and, taking its future increase into the account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are
essential to the proper execution of such a trust. Accurate and comprehensive
knowledge of foreign politics; a steady and systematic adherence to the same
views; a nice and uniform sensibility to national character; decision, SECRECY,
and despatch, are incompatible with the genius of a body so variable and so
numerous. The very complication of the business, by introducing a necessity of
the concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the House of
Representatives, and the greater length of time which it would often be
necessary to keep them together when convened, to obtain their sanction in the
progressive stages of a treaty, would be a source of so great inconvenience and
expense as alone ought to condemn the project.
</p>

<p>
The only objection which remains to be canvassed, is that which would
substitute the proportion of two thirds of all the members composing the
senatorial body, to that of two thirds of the members PRESENT. It has been
shown, under the second head of our inquiries, that all provisions which
require more than the majority of any body to its resolutions, have a direct
tendency to embarrass the operations of the government, and an indirect one to
subject the sense of the majority to that of the minority. This consideration
seems sufficient to determine our opinion, that the convention have gone as far
in the endeavor to secure the advantage of numbers in the formation of treaties
as could have been reconciled either with the activity of the public councils
or with a reasonable regard to the major sense of the community. If two thirds
of the whole number of members had been required, it would, in many cases, from
the non-attendance of a part, amount in practice to a necessity of unanimity.
And the history of every political establishment in which this principle has
prevailed, is a history of impotence, perplexity, and disorder. Proofs of this
position might be adduced from the examples of the Roman Tribuneship, the
Polish Diet, and the States-General of the Netherlands, did not an example at
home render foreign precedents unnecessary.
</p>

<p>
To require a fixed proportion of the whole body would not, in all probability,
contribute to the advantages of a numerous agency, better then merely to
require a proportion of the attending members. The former, by making a
determinate number at all times requisite to a resolution, diminishes the
motives to punctual attendance. The latter, by making the capacity of the body
to depend on a PROPORTION which may be varied by the absence or presence of a
single member, has the contrary effect. And as, by promoting punctuality, it
tends to keep the body complete, there is great likelihood that its resolutions
would generally be dictated by as great a number in this case as in the other;
while there would be much fewer occasions of delay. It ought not to be
forgotten that, under the existing Confederation, two members MAY, and usually
DO, represent a State; whence it happens that Congress, who now are solely
invested with ALL THE POWERS of the Union, rarely consist of a greater number
of persons than would compose the intended Senate. If we add to this, that as
the members vote by States, and that where there is only a single member
present from a State, his vote is lost, it will justify a supposition that the
active voices in the Senate, where the members are to vote individually, would
rarely fall short in number of the active voices in the existing Congress.
When, in addition to these considerations, we take into view the co-operation
of the President, we shall not hesitate to infer that the people of America
would have greater security against an improper use of the power of making
treaties, under the new Constitution, than they now enjoy under the
Confederation. And when we proceed still one step further, and look forward to
the probable augmentation of the Senate, by the erection of new States, we
shall not only perceive ample ground of confidence in the sufficiency of the
members to whose agency that power will be intrusted, but we shall probably be
led to conclude that a body more numerous than the Senate would be likely to
become, would be very little fit for the proper discharge of the trust.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap76"></a>THE FEDERALIST.<br>
No. LXXVI.</h2>

<p class="center">
The Appointing Power of the Executive
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Tuesday, April 1, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The President is “to NOMINATE, and, by and with the advice and consent of the
Senate, to appoint ambassadors, other public ministers and consuls, judges of
the Supreme Court, and all other officers of the United States whose
appointments are not otherwise provided for in the Constitution. But the
Congress may by law vest the appointment of such inferior officers as they
think proper, in the President alone, or in the courts of law, or in the heads
of departments. The President shall have power to fill up ALL VACANCIES which
may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall
EXPIRE at the end of their next session.”
</p>

<p>
It has been observed in a former paper, that “the true test of a good
government is its aptitude and tendency to produce a good administration.” If
the justness of this observation be admitted, the mode of appointing the
officers of the United States contained in the foregoing clauses, must, when
examined, be allowed to be entitled to particular commendation. It is not easy
to conceive a plan better calculated than this to promote a judicious choice of
men for filling the offices of the Union; and it will not need proof, that on
this point must essentially depend the character of its administration.
</p>

<p>
It will be agreed on all hands, that the power of appointment, in ordinary
cases, ought to be modified in one of three ways. It ought either to be vested
in a single man, or in a SELECT assembly of a moderate number; or in a single
man, with the concurrence of such an assembly. The exercise of it by the people
at large will be readily admitted to be impracticable; as waiving every other
consideration, it would leave them little time to do anything else. When,
therefore, mention is made in the subsequent reasonings of an assembly or body
of men, what is said must be understood to relate to a select body or assembly,
of the description already given. The people collectively, from their number
and from their dispersed situation, cannot be regulated in their movements by
that systematic spirit of cabal and intrigue, which will be urged as the chief
objections to reposing the power in question in a body of men.
</p>

<p>
Those who have themselves reflected upon the subject, or who have attended to
the observations made in other parts of these papers, in relation to the
appointment of the President, will, I presume, agree to the position, that
there would always be great probability of having the place supplied by a man
of abilities, at least respectable. Premising this, I proceed to lay it down as
a rule, that one man of discernment is better fitted to analyze and estimate
the peculiar qualities adapted to particular offices, than a body of men of
equal or perhaps even of superior discernment.
</p>

<p>
The sole and undivided responsibility of one man will naturally beget a
livelier sense of duty and a more exact regard to reputation. He will, on this
account, feel himself under stronger obligations, and more interested to
investigate with care the qualities requisite to the stations to be filled, and
to prefer with impartiality the persons who may have the fairest pretensions to
them. He will have FEWER personal attachments to gratify, than a body of men
who may each be supposed to have an equal number; and will be so much the less
liable to be misled by the sentiments of friendship and of affection. A single
well-directed man, by a single understanding, cannot be distracted and warped
by that diversity of views, feelings, and interests, which frequently distract
and warp the resolutions of a collective body. There is nothing so apt to
agitate the passions of mankind as personal considerations whether they relate
to ourselves or to others, who are to be the objects of our choice or
preference. Hence, in every exercise of the power of appointing to offices, by
an assembly of men, we must expect to see a full display of all the private and
party likings and dislikes, partialities and antipathies, attachments and
animosities, which are felt by those who compose the assembly. The choice which
may at any time happen to be made under such circumstances, will of course be
the result either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit of the
candidate will be too often out of sight. In the first, the qualifications best
adapted to uniting the suffrages of the party, will be more considered than
those which fit the person for the station. In the last, the coalition will
commonly turn upon some interested equivalent: “Give us the man we wish for
this office, and you shall have the one you wish for that.” This will be the
usual condition of the bargain. And it will rarely happen that the advancement
of the public service will be the primary object either of party victories or
of party negotiations.
</p>

<p>
The truth of the principles here advanced seems to have been felt by the most
intelligent of those who have found fault with the provision made, in this
respect, by the convention. They contend that the President ought solely to
have been authorized to make the appointments under the federal government. But
it is easy to show, that every advantage to be expected from such an
arrangement would, in substance, be derived from the power of NOMINATION, which
is proposed to be conferred upon him; while several disadvantages which might
attend the absolute power of appointment in the hands of that officer would be
avoided. In the act of nomination, his judgment alone would be exercised; and
as it would be his sole duty to point out the man who, with the approbation of
the Senate, should fill an office, his responsibility would be as complete as
if he were to make the final appointment. There can, in this view, be no
difference others, who are to be the objects of our choice or preference.
Hence, in every exercise of the power of appointing to offices, by an assembly
of men, we must expect to see a full display of all the private and party
likings and dislikes, partialities and antipathies, attachments and
animosities, which are felt by those who compose the assembly. The choice which
may at any time happen to be made under such circumstances, will of course be
the result either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit of the
candidate will be too often out of sight. In the first, the qualifications best
adapted to uniting the suffrages of the party, will be more considered than
those which fit the person for the station. In the last, the coalition will
commonly turn upon some interested equivalent: “Give us the man we wish for
this office, and you shall have the one you wish for that.” This will be the
usual condition of the bargain. And it will rarely happen that the advancement
of the public service will be the primary object either of party victories or
of party negotiations.
</p>

<p>
The truth of the principles here advanced seems to have been felt by the most
intelligent of those who have found fault with the provision made, in this
respect, by the convention. They contend that the President ought solely to
have been authorized to make the appointments under the federal government. But
it is easy to show, that every advantage to be expected from such an
arrangement would, in substance, be derived from the power of NOMINATION, which
is proposed to be conferred upon him; while several disadvantages which might
attend the absolute power of appointment in the hands of that officer would be
avoided. In the act of nomination, his judgment alone would be exercised; and
as it would be his sole duty to point out the man who, with the approbation of
the Senate, should fill an office, his responsibility would be as complete as
if he were to make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives which would
influence a proper discharge of his duty in one case, would exist in the other.
And as no man could be appointed but on his previous nomination, every man who
might be appointed would be, in fact, his choice.
</p>

<p>
But might not his nomination be overruled? I grant it might, yet this could
only be to make place for another nomination by himself. The person ultimately
appointed must be the object of his preference, though perhaps not in the first
degree. It is also not very probable that his nomination would often be
overruled. The Senate could not be tempted, by the preference they might feel
to another, to reject the one proposed; because they could not assure
themselves, that the person they might wish would be brought forward by a
second or by any subsequent nomination. They could not even be certain, that a
future nomination would present a candidate in any degree more acceptable to
them; and as their dissent might cast a kind of stigma upon the individual
rejected, and might have the appearance of a reflection upon the judgment of
the chief magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the refusal.
</p>

<p>
To what purpose then require the co-operation of the Senate? I answer, that the
necessity of their concurrence would have a powerful, though, in general, a
silent operation. It would be an excellent check upon a spirit of favoritism in
the President, and would tend greatly to prevent the appointment of unfit
characters from State prejudice, from family connection, from personal
attachment, or from a view to popularity. In addition to this, it would be an
efficacious source of stability in the administration.
</p>

<p>
It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private inclinations
and interests, than when he was bound to submit the propriety of his choice to
the discussion and determination of a different and independent body, and that
body an entire branch of the legislature. The possibility of rejection would be
a strong motive to care in proposing. The danger to his own reputation, and, in
the case of an elective magistrate, to his political existence, from betraying
a spirit of favoritism, or an unbecoming pursuit of popularity, to the
observation of a body whose opinion would have great weight in forming that of
the public, could not fail to operate as a barrier to the one and to the other.
He would be both ashamed and afraid to bring forward, for the most
distinguished or lucrative stations, candidates who had no other merit than
that of coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of possessing the
necessary insignificance and pliancy to render them the obsequious instruments
of his pleasure.
</p>

<p>
To this reasoning it has been objected that the President, by the influence of
the power of nomination, may secure the complaisance of the Senate to his
views. This supposition of universal venalty in human nature is little less an
error in political reasoning, than the supposition of universal rectitude. The
institution of delegated power implies, that there is a portion of virtue and
honor among mankind, which may be a reasonable foundation of confidence; and
experience justifies the theory. It has been found to exist in the most corrupt
periods of the most corrupt governments. The venalty of the British House of
Commons has been long a topic of accusation against that body, in the country
to which they belong as well as in this; and it cannot be doubted that the
charge is, to a considerable extent, well founded. But it is as little to be
doubted, that there is always a large proportion of the body, which consists of
independent and public-spirited men, who have an influential weight in the
councils of the nation. Hence it is (the present reign not excepted) that the
sense of that body is often seen to control the inclinations of the monarch,
both with regard to men and to measures. Though it might therefore be allowable
to suppose that the Executive might occasionally influence some individuals in
the Senate, yet the supposition, that he could in general purchase the
integrity of the whole body, would be forced and improbable. A man disposed to
view human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in the probity
of the Senate, to rest satisfied, not only that it will be impracticable to the
Executive to corrupt or seduce a majority of its members, but that the
necessity of its co-operation, in the business of appointments, will be a
considerable and salutary restraint upon the conduct of that magistrate. Nor is
the integrity of the Senate the only reliance. The Constitution has provided
some important guards against the danger of executive influence upon the
legislative body: it declares that “No senator or representative shall during
the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the
United States, which shall have been created, or the emoluments whereof shall
have been increased, during such time; and no person, holding any office under
the United States, shall be a member of either house during his continuance in
office.”
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap77"></a>THE FEDERALIST.<br>
No. LXXVII.</h2>

<p class="center">
The Appointing Power Continued and Other Powers of the Executive Considered
</p>

<p class="center">
From the New York Packet.
</p>

<p class="center">
Friday, April 4, 1788.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
It has been mentioned as one of the advantages to be expected from the
co-operation of the Senate, in the business of appointments, that it would
contribute to the stability of the administration. The consent of that body
would be necessary to displace as well as to appoint. A change of the Chief
Magistrate, therefore, would not occasion so violent or so general a revolution
in the officers of the government as might be expected, if he were the sole
disposer of offices. Where a man in any station had given satisfactory evidence
of his fitness for it, a new President would be restrained from attempting a
change in favor of a person more agreeable to him, by the apprehension that a
discountenance of the Senate might frustrate the attempt, and bring some degree
of discredit upon himself. Those who can best estimate the value of a steady
administration, will be most disposed to prize a provision which connects the
official existence of public men with the approbation or disapprobation of that
body which, from the greater permanency of its own composition, will in all
probability be less subject to inconstancy than any other member of the
government.
</p>

<p>
To this union of the Senate with the President, in the article of appointments,
it has in some cases been suggested that it would serve to give the President
an undue influence over the Senate, and in others that it would have an
opposite tendency, a strong proof that neither suggestion is true.
</p>

<p>
To state the first in its proper form, is to refute it. It amounts to this: the
President would have an improper INFLUENCE OVER the Senate, because the Senate
would have the power of RESTRAINING him. This is an absurdity in terms. It
cannot admit of a doubt that the entire power of appointment would enable him
much more effectually to establish a dangerous empire over that body, than a
mere power of nomination subject to their control.
</p>

<p>
Let us take a view of the converse of the proposition: “the Senate would
influence the Executive.” As I have had occasion to remark in several other
instances, the indistinctness of the objection forbids a precise answer. In
what manner is this influence to be exerted? In relation to what objects? The
power of influencing a person, in the sense in which it is here used, must
imply a power of conferring a benefit upon him. How could the Senate confer a
benefit upon the President by the manner of employing their right of negative
upon his nominations? If it be said they might sometimes gratify him by an
acquiescence in a favorite choice, when public motives might dictate a
different conduct, I answer, that the instances in which the President could be
personally interested in the result, would be too few to admit of his being
materially affected by the compliances of the Senate. The POWER which can
ORIGINATE the disposition of honors and emoluments, is more likely to attract
than to be attracted by the POWER which can merely obstruct their course. If by
influencing the President be meant RESTRAINING him, this is precisely what must
have been intended. And it has been shown that the restraint would be salutary,
at the same time that it would not be such as to destroy a single advantage to
be looked for from the uncontrolled agency of that Magistrate. The right of
nomination would produce all the good 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.
</p>

<p>
The reverse of all this characterizes the manner of appointment in this State.
The council of appointment consists of from three to five persons, of whom the
governor is always one. This small body, shut up in a private apartment,
impenetrable to the public eye, proceed to the execution of the trust committed
to them. It is known that the governor claims the right of nomination, upon the
strength of some ambiguous expressions in the constitution; but it is not known
to what extent, or in what manner he exercises it; nor upon what occasions he
is contradicted or opposed. The censure of a bad appointment, on account of the
uncertainty of its author, and for want of a determinate object, has neither
poignancy nor duration. And while an unbounded field for cabal and intrigue
lies open, all idea of responsibility is lost. The most that the public can
know, is that the governor claims the right of nomination; that TWO out of the
inconsiderable number of FOUR men can too often be managed without much
difficulty; that if some of the members of a particular council should happen
to be of an uncomplying character, it is frequently not impossible to get rid
of their opposition by regulating the times of meeting in such a manner as to
render their attendance inconvenient; and that from whatever cause it may
proceed, a great number of very improper appointments are from time to time
made. Whether a governor of this State avails himself of the ascendant he must
necessarily have, in this delicate and important part of the administration, to
prefer to offices men who are best qualified for them, or whether he
prostitutes that advantage to the advancement of persons whose chief merit is
their implicit devotion to his will, and to the support of a despicable and
dangerous system of personal influence, are questions which, unfortunately for
the community, can only be the subjects of speculation and conjecture.
</p>

<p>
Every mere council of appointment, however constituted, will be a conclave, in
which cabal and intrigue will have their full scope. Their number, without an
unwarrantable increase of expense, cannot be large enough to preclude a
facility of combination. And as each member will have his friends and
connections to provide for, the desire of mutual gratification will beget a
scandalous bartering of votes and bargaining for places. The private
attachments of one man might easily be satisfied; but to satisfy the private
attachments of a dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would lead more
directly to an aristocracy or an oligarchy than any measure that could be
contrived. If, to avoid an accumulation of offices, there was to be a frequent
change in the persons who were to compose the council, this would involve the
mischiefs of a mutable administration in their full extent. Such a council
would also be more liable to executive influence than the Senate, because they
would be fewer in number, and would act less immediately under the public
inspection. Such a council, in fine, as a substitute for the plan of the
convention, would be productive of an increase of expense, a multiplication of
the evils which spring from favoritism and intrigue in the distribution of
public honors, a decrease of stability in the administration of the government,
and a diminution of the security against an undue influence of the Executive.
And yet such a council has been warmly contended for as an essential amendment
in the proposed Constitution.
</p>

<p>
I could not with propriety conclude my observations on the subject of
appointments without taking notice of a scheme for which there have appeared
some, though but few advocates; I mean that of uniting the House of
Representatives in the power of making them. I shall, however, do little more
than mention it, as I cannot imagine that it is likely to gain the countenance
of any considerable part of the community. A body so fluctuating and at the
same time so numerous, can never be deemed proper for the exercise of that
power. Its unfitness will appear manifest to all, when it is recollected that
in half a century it may consist of three or four hundred persons. All the
advantages of the stability, both of the Executive and of the Senate, would be
defeated by this union, and infinite delays and embarrassments would be
occasioned. The example of most of the States in their local constitutions
encourages us to reprobate the idea.
</p>

<p>
The only remaining powers of the Executive are comprehended in giving
information to Congress of the state of the Union; in recommending to their
consideration such measures as he shall judge expedient; in convening them, or
either branch, upon extraordinary occasions; in adjourning them when they
cannot themselves agree upon the time of adjournment; in receiving ambassadors
and other public ministers; in faithfully executing the laws; and in
commissioning all the officers of the United States.
</p>

<p>
Except some cavils about the power of convening EITHER house of the
legislature, and that of receiving ambassadors, no objection has been made to
this class of authorities; nor could they possibly admit of any. It required,
indeed, an insatiable avidity for censure to invent exceptions to the parts
which have been excepted to. In regard to the power of convening either house
of the legislature, I shall barely remark, that in respect to the Senate at
least, we can readily discover a good reason for it. AS this body has a
concurrent power with the Executive in the article of treaties, it might often
be necessary to call it together with a view to this object, when it would be
unnecessary and improper to convene the House of Representatives. As to the
reception of ambassadors, what I have said in a former paper will furnish a
sufficient answer.
</p>

<p>
We have now completed a survey of the structure and powers of the executive
department, which, I have endeavored to show, combines, as far as republican
principles will admit, all the requisites to energy. The remaining inquiry is:
Does it also combine the requisites to safety, in a republican sense, a due
dependence on the people, a due responsibility? The answer to this question has
been anticipated in the investigation of its other characteristics, and is
satisfactorily deducible from these circumstances; from the election of the
President once in four years by persons immediately chosen by the people for
that purpose; and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to forfeiture of
life and estate by subsequent prosecution in the common course of law. But
these precautions, great as they are, are not the only ones which the plan of
the convention has provided in favor of the public security. In the only
instances in which the abuse of the executive authority was materially to be
feared, the Chief Magistrate of the United States would, by that plan, be
subjected to the control of a branch of the legislative body. What more could
be desired by an enlightened and reasonable people?
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap78"></a>THE FEDERALIST.<br>
No. LXXVIII.</h2>

<p class="center">
The Judiciary Department
</p>

<p class="center">
From McLEAN’S Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
We proceed now to an examination of the judiciary department of the proposed
government.
</p>

<p>
In unfolding the defects of the existing Confederation, the utility and
necessity of a federal judicature have been clearly pointed out. It is the less
necessary to recapitulate the considerations there urged, as the propriety of
the institution in the abstract is not disputed; the only questions which have
been raised being relative to the manner of constituting it, and to its extent.
To these points, therefore, our observations shall be confined.
</p>

<p>
The manner of constituting it seems to embrace these several objects: 1st. The
mode of appointing the judges. 2d. The tenure by which they are to hold their
places. 3d. The partition of the judiciary authority between different courts,
and their relations to each other.
</p>

<p>
First. As to the mode of appointing the judges; this is the same with that of
appointing the officers of the Union in general, and has been so fully
discussed in the two last numbers, that nothing can be said here which would
not be useless repetition.
</p>

<p>
Second. As to the tenure by which the judges are to hold their places; this
chiefly concerns their duration in office; the provisions for their support;
the precautions for their responsibility.
</p>

<p>
According to the plan of the convention, all judges who may be appointed by the
United States are to hold their offices DURING GOOD BEHAVIOR; which is
conformable to the most approved of the State constitutions and among the rest,
to that of this State. Its propriety having been drawn into question by the
adversaries of that plan, is no light symptom of the rage for objection, which
disorders their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly one of the
most valuable of the modern improvements in the practice of government. In a
monarchy it is an excellent barrier to the despotism of the prince; in a
republic it is a no less excellent barrier to the encroachments and oppressions
of the representative body. And it is the best expedient which can be devised
in any government, to secure a steady, upright, and impartial administration of
the laws.
</p>

<p>
Whoever attentively considers the different departments of power must perceive,
that, in a government in which they are separated from each other, the
judiciary, from the nature of its functions, will always be the least dangerous
to the political rights of the Constitution; because it will be least in a
capacity to annoy or injure them. The Executive not only dispenses the honors,
but holds the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of every citizen
are to be regulated. The judiciary, on the contrary, has no influence over
either the sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution whatever. It may truly
be said to have neither FORCE nor WILL, but merely judgment; and must
ultimately depend upon the aid of the executive arm even for the efficacy of
its judgments.
</p>

<p>
This simple view of the matter suggests several important consequences. It
proves incontestably, that the judiciary is beyond comparison the weakest of
the three departments of power;<a href="#fn78.1" id="fnref78.1"><sup>[1]</sup></a> 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.”<a href="#fn78.2" id="fnref78.2"><sup>[2]</sup></a> And it proves, in the last place, that as
liberty can have nothing to fear from the judiciary alone, but would have every
thing to fear from its union with either of the other departments; that as all
the effects of such a union must ensue from a dependence of the former on the
latter, notwithstanding a nominal and apparent separation; that as, from the
natural feebleness of the judiciary, it is in continual jeopardy of being
overpowered, awed, or influenced by its co-ordinate branches; and that as
nothing can contribute so much to its firmness and independence as permanency
in office, this quality may therefore be justly regarded as an indispensable
ingredient in its constitution, and, in a great measure, as the citadel of the
public justice and the public security.
</p>

<p>
The complete independence of the courts of justice is peculiarly essential in a
limited Constitution. By a limited Constitution, I understand one which
contains certain specified exceptions to the legislative authority; such, for
instance, as that it shall pass no bills of attainder, no ex-post-facto laws,
and the like. Limitations of this kind can be preserved in practice no other
way than through the medium of courts of justice, whose duty it must be to
declare all acts contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or privileges would
amount to nothing.
</p>

<p>
Some perplexity respecting the rights of the courts to pronounce legislative
acts void, because contrary to the Constitution, has arisen from an imagination
that the doctrine would imply a superiority of the judiciary to the legislative
power. It is urged that the authority which can declare the acts of another
void, must necessarily be superior to the one whose acts may be declared void.
As this doctrine is of great importance in all the American constitutions, a
brief discussion of the ground on which it rests cannot be unacceptable.
</p>

<p>
There is no position which depends on clearer principles, than that every act
of a delegated authority, contrary to the tenor of the commission under which
it is exercised, is void. No legislative act, therefore, contrary to the
Constitution, can be valid. To deny this, would be to affirm, that the deputy
is greater than his principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves; that men
acting by virtue of powers, may do not only what their powers do not authorize,
but what they forbid.
</p>

<p>
If it be said that the legislative body are themselves the constitutional
judges of their own powers, and that the construction they put upon them is
conclusive upon the other departments, it may be answered, that this cannot be
the natural presumption, where it is not to be collected from any particular
provisions in the Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the people to
substitute their WILL to that of their constituents. It is far more rational to
suppose, that the courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to keep the latter
within the limits assigned to their authority. The interpretation of the laws
is the proper and peculiar province of the courts. A constitution is, in fact,
and must be regarded by the judges, as a fundamental law. It therefore belongs
to them to ascertain its meaning, as well as the meaning of any particular act
proceeding from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior obligation
and validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the people
to the intention of their agents.
</p>

<p>
Nor does this conclusion by any means suppose a superiority of the judicial to
the legislative power. It only supposes that the power of the people is
superior to both; and that where the will of the legislature, declared in its
statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the
former. They ought to regulate their decisions by the fundamental laws, rather
than by those which are not fundamental.
</p>

<p>
This exercise of judicial discretion, in determining between two contradictory
laws, is exemplified in a familiar instance. It not uncommonly happens, that
there are two statutes existing at one time, clashing in whole or in part with
each other, and neither of them containing any repealing clause or expression.
In such a case, it is the province of the courts to liquidate and fix their
meaning and operation. So far as they can, by any fair construction, be
reconciled to each other, reason and law conspire to dictate that this should
be done; where this is impracticable, it becomes a matter of necessity to give
effect to one, in exclusion of the other. The rule which has obtained in the
courts for determining their relative validity is, that the last in order of
time shall be preferred to the first. But this is a mere rule of construction,
not derived from any positive law, but from the nature and reason of the thing.
It is a rule not enjoined upon the courts by legislative provision, but adopted
by themselves, as consonant to truth and propriety, for the direction of their
conduct as interpreters of the law. They thought it reasonable, that between
the interfering acts of an EQUAL authority, that which was the last indication
of its will should have the preference.
</p>

<p>
But in regard to the interfering acts of a superior and subordinate authority,
of an original and derivative power, the nature and reason of the thing
indicate the converse of that rule as proper to be followed. They teach us that
the prior act of a superior ought to be preferred to the subsequent act of an
inferior and subordinate authority; and that accordingly, whenever a particular
statute contravenes the Constitution, it will be the duty of the judicial
tribunals to adhere to the latter and disregard the former.
</p>

<p>
It can be of no weight to say that the courts, on the pretense of a repugnancy,
may substitute their own pleasure to the constitutional intentions of the
legislature. This might as well happen in the case of two contradictory
statutes; or it might as well happen in every adjudication upon any single
statute. The courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequence would equally be
the substitution of their pleasure to that of the legislative body. The
observation, if it prove any thing, would prove that there ought to be no
judges distinct from that body.
</p>

<p>
If, then, the courts of justice are to be considered as the bulwarks of a
limited Constitution against legislative encroachments, this consideration will
afford a strong argument for the permanent tenure of judicial offices, since
nothing will contribute so much as this to that independent spirit in the
judges which must be essential to the faithful performance of so arduous a
duty.
</p>

<p>
This independence of the judges is equally requisite to guard the Constitution
and the rights of individuals from the effects of those ill humors, which the
arts of designing men, or the influence of particular conjunctures, sometimes
disseminate among the people themselves, and which, though they speedily give
place to better information, and more deliberate reflection, have a tendency,
in the meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I trust the
friends of the proposed Constitution will never concur with its enemies<a
href="#fn78.3" id="fnref78.3"><sup>[3]</sup></a> in questioning that
fundamental principle of republican government, which admits the right of the
people to alter or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from this
principle, that the representatives of the people, whenever a momentary
inclination happens to lay hold of a majority of their constituents,
incompatible with the provisions in the existing Constitution, would, on that
account, be justifiable in a violation of those provisions; or that the courts
would be under a greater obligation to connive at infractions in this shape,
than when they had proceeded wholly from the cabals of the representative body.
Until the people have, by some solemn and authoritative act, annulled or
changed the established form, it is binding upon themselves collectively, as
well as individually; and no presumption, or even knowledge, of their
sentiments, can warrant their representatives in a departure from it, prior to
such an act. But it is easy to see, that it would require an uncommon portion
of fortitude in the judges to do their duty as faithful guardians of the
Constitution, where legislative invasions of it had been instigated by the
major voice of the community.
</p>

<p>
But it is not with a view to infractions of the Constitution only, that the
independence of the judges may be an essential safeguard against the effects of
occasional ill humors in the society. These sometimes extend no farther than to
the injury of the private rights of particular classes of citizens, by unjust
and partial laws. Here also the firmness of the judicial magistracy is of vast
importance in mitigating the severity and confining the operation of such laws.
It not only serves to moderate the immediate mischiefs of those which may have
been passed, but it operates as a check upon the legislative body in passing
them; who, perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner compelled, by
the very motives of the injustice they meditate, to qualify their attempts.
This is a circumstance calculated to have more influence upon the character of
our governments, than but few may be aware of. The benefits of the integrity
and moderation of the judiciary have already been felt in more States than one;
and though they may have displeased those whose sinister expectations they may
have disappointed, they must have commanded the esteem and applause of all the
virtuous and disinterested. Considerate men, of every description, ought to
prize whatever will tend to beget or fortify that temper in the courts: as no
man can be sure that he may not be to-morrow the victim of a spirit of
injustice, by which he may be a gainer to-day. And every man must now feel,
that the inevitable tendency of such a spirit is to sap the foundations of
public and private confidence, and to introduce in its stead universal distrust
and distress.
</p>

<p>
That inflexible and uniform adherence to the rights of the Constitution, and of
individuals, which we perceive to be indispensable in the courts of justice,
can certainly not be expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or by whomsoever made,
would, in some way or other, be fatal to their necessary independence. If the
power of making them was committed either to the Executive or legislature,
there would be danger of an improper complaisance to the branch which possessed
it; if to both, there would be an unwillingness to hazard the displeasure of
either; if to the people, or to persons chosen by them for the special purpose,
there would be too great a disposition to consult popularity, to justify a
reliance that nothing would be consulted but the Constitution and the laws.
</p>

<p>
There is yet a further and a weightier reason for the permanency of the
judicial offices, which is deducible from the nature of the qualifications they
require. It has been frequently remarked, with great propriety, that a
voluminous code of laws is one of the inconveniences necessarily connected with
the advantages of a free government. To avoid an arbitrary discretion in the
courts, it is indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every particular
case that comes before them; and it will readily be conceived from the variety
of controversies which grow out of the folly and wickedness of mankind, that
the records of those precedents must unavoidably swell to a very considerable
bulk, and must demand long and laborious study to acquire a competent knowledge
of them. Hence it is, that there can be but few men in the society who will
have sufficient skill in the laws to qualify them for the stations of judges.
And making the proper deductions for the ordinary depravity of human nature,
the number must be still smaller of those who unite the requisite integrity
with the requisite knowledge. These considerations apprise us, that the
government can have no great option between fit character; and that a temporary
duration in office, which would naturally discourage such characters from
quitting a lucrative line of practice to accept a seat on the bench, would have
a tendency to throw the administration of justice into hands less able, and
less well qualified, to conduct it with utility and dignity. In the present
circumstances of this country, and in those in which it is likely to be for a
long time to come, the disadvantages on this score would be greater than they
may at first sight appear; but it must be confessed, that they are far inferior
to those which present themselves under the other aspects of the subject.
</p>

<p>
Upon the whole, there can be no room to doubt that the convention acted wisely
in copying from the models of those constitutions which have established GOOD
BEHAVIOR as the tenure of their judicial offices, in point of duration; and
that so far from being blamable on this account, their plan would have been
inexcusably defective, if it had wanted this important feature of good
government. The experience of Great Britain affords an illustrious comment on
the excellence of the institution.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn78.1"></a> <a href="#fnref78.1">[1]</a>
The celebrated Montesquieu, speaking of them, says: “Of the three powers above
mentioned, the judiciary is next to nothing.” <i>Spirit of Laws</i>. vol. i.,
page 186.
</p>

<p class="footnote">
<a id="fn78.2"></a> <a href="#fnref78.2">[2]</a>
<i>Idem</i>, page 181.
</p>

<p class="footnote">
<a id="fn78.3"></a> <a href="#fnref78.3">[3]</a>
<i>Vide Protest of the Minority of the Convention of Pennsylvania</i>, Martin’s
Speech, etc.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap79"></a>THE FEDERALIST.<br>
No. LXXIX.</h2>

<p class="center">
The Judiciary Continued
</p>

<p class="center">
From MCLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
Next to permanency in office, nothing can contribute more to the independence
of the judges than a fixed provision for their support. The remark made in
relation to the President is equally applicable here. In the general course of
human nature, A POWER OVER A MAN’s SUBSISTENCE AMOUNTS TO A POWER OVER HIS
WILL. And we can never hope to see realized in practice, the complete
separation of the judicial from the legislative power, in any system which
leaves the former dependent for pecuniary resources on the occasional grants of
the latter. The enlightened friends to good government in every State, have
seen cause to lament the want of precise and explicit precautions in the State
constitutions on this head. Some of these indeed have declared that PERMANENT<a
href="#fn79.1" id="fnref79.1"><sup>[1]</sup></a> salaries should be
established for the judges; but the experiment has in some instances shown that
such expressions are not sufficiently definite to preclude legislative
evasions. Something still more positive and unequivocal has been evinced to be
requisite. The plan of the convention accordingly has provided that the judges
of the United States “shall at STATED TIMES receive for their services a
compensation which shall not be DIMINISHED during their continuance in office.”
</p>

<p>
This, all circumstances considered, is the most eligible provision that could
have been devised. It will readily be understood that the fluctuations in the
value of money and in the state of society rendered a fixed rate of
compensation in the Constitution inadmissible. What might be extravagant
to-day, might in half a century become penurious and inadequate. It was
therefore necessary to leave it to the discretion of the legislature to vary
its provisions in conformity to the variations in circumstances, yet under such
restrictions as to put it out of the power of that body to change the condition
of the individual for the worse. A man may then be sure of the ground upon
which he stands, and can never be deterred from his duty by the apprehension of
being placed in a less eligible situation. The clause which has been quoted
combines both advantages. The salaries of judicial officers may from time to
time be altered, as occasion shall require, yet so as never to lessen the
allowance with which any particular judge comes into office, in respect to him.
It will be observed that a difference has been made by the convention between
the compensation of the President and of the judges, That of the former can
neither be increased nor diminished; that of the latter can only not be
diminished. This probably arose from the difference in the duration of the
respective offices. As the President is to be elected for no more than four
years, it can rarely happen that an adequate salary, fixed at the commencement
of that period, will not continue to be such to its end. But with regard to the
judges, who, if they behave properly, will be secured in their places for life,
it may well happen, especially in the early stages of the government, that a
stipend, which would be very sufficient at their first appointment, would
become too small in the progress of their service.
</p>

<p>
This provision for the support of the judges bears every mark of prudence and
efficacy; and it may be safely affirmed that, together with the permanent
tenure of their offices, it affords a better prospect of their independence
than is discoverable in the constitutions of any of the States in regard to
their own judges.
</p>

<p>
The precautions for their responsibility are comprised in the article
respecting impeachments. They are liable to be impeached for malconduct by the
House of Representatives, and tried by the Senate; and, if convicted, may be
dismissed from office, and disqualified for holding any other. This is the only
provision on the point which is consistent with the necessary independence of
the judicial character, and is the only one which we find in our own
Constitution in respect to our own judges.
</p>

<p>
The want of a provision for removing the judges on account of inability has
been a subject of complaint. But all considerate men will be sensible that such
a provision would either not be practiced upon or would be more liable to abuse
than calculated to answer any good purpose. The mensuration of the faculties of
the mind has, I believe, no place in the catalogue of known arts. An attempt to
fix the boundary between the regions of ability and inability, would much
oftener give scope to personal and party attachments and enmities than advance
the interests of justice or the public good. The result, except in the case of
insanity, must for the most part be arbitrary; and insanity, without any formal
or express provision, may be safely pronounced to be a virtual
disqualification.
</p>

<p>
The constitution of New York, to avoid investigations that must forever be
vague and dangerous, has taken a particular age as the criterion of inability.
No man can be a judge beyond sixty. I believe there are few at present who do
not disapprove of this provision. There is no station, in relation to which it
is less proper than to that of a judge. The deliberating and comparing
faculties generally preserve their strength much beyond that period in men who
survive it; and when, in addition to this circumstance, we consider how few
there are who outlive the season of intellectual vigor, and how improbable it
is that any considerable portion of the bench, whether more or less numerous,
should be in such a situation at the same time, we shall be ready to conclude
that limitations of this sort have little to recommend them. In a republic,
where fortunes are not affluent, and pensions not expedient, the dismission of
men from stations in which they have served their country long and usefully, on
which they depend for subsistence, and from which it will be too late to resort
to any other occupation for a livelihood, ought to have some better apology to
humanity than is to be found in the imaginary danger of a superannuated bench.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn79.1"></a> <a href="#fnref79.1">[1]</a>
<i>Vide Constitution of Massachusetts</i>, chapter 2, section 1, article 13.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap80"></a>THE FEDERALIST.<br>
No. LXXX.</h2>

<p class="center">
The Powers of the Judiciary
</p>

<p class="center">
From McLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
To judge with accuracy of the proper extent of the federal judicature, it will
be necessary to consider, in the first place, what are its proper objects.
</p>

<p>
It seems scarcely to admit of controversy, that the 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.
</p>

<p>
The first point depends upon this obvious consideration, that there ought
always to be a constitutional method of giving efficacy to constitutional
provisions. What, for instance, would avail restrictions on the authority of
the State legislatures, without some constitutional mode of enforcing the
observance of them? The States, by the plan of the convention, are prohibited
from doing a variety of things, some of which are incompatible with the
interests of the Union, and others with the principles of good government. The
imposition of duties on imported articles, and the emission of paper money, are
specimens of each kind. No man of sense will believe, that such prohibitions
would be scrupulously regarded, without some effectual power in the government
to restrain or correct the infractions of them. This power must either be a
direct negative on the State laws, or an authority in the federal courts to
overrule such as might be in manifest contravention of the articles of Union.
There is no third course that I can imagine. The latter appears to have been
thought by the convention preferable to the former, and, I presume, will be
most agreeable to the States.
</p>

<p>
As to the second point, it is impossible, by any argument or comment, to make
it clearer than it is in itself. If there are such things as political axioms,
the propriety of the judicial power of a government being coextensive with its
legislative, may be ranked among the number. The mere necessity of uniformity
in the interpretation of the national laws, decides the question. Thirteen
independent courts of final jurisdiction over the same causes, arising upon the
same laws, is a hydra in government, from which nothing but contradiction and
confusion can proceed.
</p>

<p>
Still less need be said in regard to the third point. Controversies between the
nation and its members or citizens, can only be properly referred to the
national tribunals. Any other plan would be contrary to reason, to precedent,
and to decorum.
</p>

<p>
The fourth point rests on this plain proposition, that the peace of the WHOLE
ought not to be left at the disposal of a PART. The Union will undoubtedly be
answerable to foreign powers for the conduct of its members. And the
responsibility for an injury ought ever to be accompanied with the faculty of
preventing it. As the denial or perversion of justice by the sentences of
courts, as well as in any other manner, is with reason classed among the just
causes of war, it will follow that the federal judiciary ought to have
cognizance of all causes in which the citizens of other countries are
concerned. This is not less essential to the preservation of the public faith,
than to the security of the public tranquillity. A distinction may perhaps be
imagined between cases arising upon treaties and the laws of nations and those
which may stand merely on the footing of the municipal law. The former kind may
be supposed proper for the federal jurisdiction, the latter for that of the
States. But it is at least problematical, whether an unjust sentence against a
foreigner, where the subject of controversy was wholly relative to the lex
loci, would not, if unredressed, be an aggression upon his sovereign, as well
as one which violated the stipulations of a treaty or the general law of
nations. And a still greater objection to the distinction would result from the
immense difficulty, if not impossibility, of a practical discrimination between
the cases of one complexion and those of the other. So great a proportion of
the cases in which foreigners are parties, involve national questions, that it
is by far most safe and most expedient to refer all those in which they are
concerned to the national tribunals.
</p>

<p>
The power of determining causes between two States, between one State and the
citizens of another, and between the citizens of different States, is perhaps
not less essential to the peace of the Union than that which has been just
examined. History gives us a horrid picture of the dissensions and private wars
which distracted and desolated Germany prior to the institution of the Imperial
Chamber by Maximilian, towards the close of the fifteenth century; and informs
us, at the same time, of the vast influence of that institution in appeasing
the disorders and establishing the tranquillity of the empire. This was a court
invested with authority to decide finally all differences among the members of
the Germanic body.
</p>

<p>
A method of terminating territorial disputes between the States, under the
authority of the federal head, was not unattended to, even in the imperfect
system by which they have been hitherto held together. But there are many other
sources, besides interfering claims of boundary, from which bickerings and
animosities may spring up among the members of the Union. To some of these we
have been witnesses in the course of our past experience. It will readily be
conjectured that I allude to the fraudulent laws which have been passed in too
many of the States. And though the proposed Constitution establishes particular
guards against the repetition of those instances which have heretofore made
their appearance, yet it is warrantable to apprehend that the spirit which
produced them will assume new shapes, that could not be foreseen nor
specifically provided against. Whatever practices may have a tendency to
disturb the harmony between the States, are proper objects of federal
superintendence and control.
</p>

<p>
It may be esteemed the basis of the Union, that “the citizens of each State
shall be entitled to all the privileges and immunities of citizens of the
several States.” And if it be a just principle that every government OUGHT TO
POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will
follow, that in order to the inviolable maintenance of that equality of
privileges and immunities to which the citizens of the Union will be entitled,
the national judiciary ought to preside in all cases in which one State or its
citizens are opposed to another State or its citizens. To secure the full
effect of so fundamental a provision against all evasion and subterfuge, it is
necessary that its construction should be committed to that tribunal which,
having no local attachments, will be likely to be impartial between the
different States and their citizens, and which, owing its official existence to
the Union, will never be likely to feel any bias inauspicious to the principles
on which it is founded.
</p>

<p>
The fifth point will demand little animadversion. The most bigoted idolizers of
State authority have not thus far shown a disposition to deny the national
judiciary the cognizances of maritime causes. These so generally depend on the
laws of nations, and so commonly affect the rights of foreigners, that they
fall within the considerations which are relative to the public peace. The most
important part of them are, by the present Confederation, submitted to federal
jurisdiction.
</p>

<p>
The reasonableness of the agency of the national courts in cases in which the
State tribunals cannot be supposed to be impartial, speaks for itself. No man
ought certainly to be a judge in his own cause, or in any cause in respect to
which he has the least interest or bias. This principle has no inconsiderable
weight in designating the federal courts as the proper tribunals for the
determination of controversies between different States and their citizens. And
it ought to have the same operation in regard to some cases between citizens of
the same State. Claims to land under grants of different States, founded upon
adverse pretensions of boundary, are of this description. The courts of neither
of the granting States could be expected to be unbiased. The laws may have even
prejudged the question, and tied the courts down to decisions in favor of the
grants of the State to which they belonged. And even where this had not been
done, it would be natural that the judges, as men, should feel a strong
predilection to the claims of their own government.
</p>

<p>
Having thus laid down and discussed the principles which ought to regulate the
constitution of the federal judiciary, we will proceed to test, by these
principles, the particular powers of which, according to the plan of the
convention, it is to be composed. It is to comprehend “all cases in law and
equity arising under the Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers, and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to which the United
States shall be a party; to controversies between two or more States; between a
State and citizens of another State; between citizens of different States;
between citizens of the same State claiming lands and grants of different
States; and between a State or the citizens thereof and foreign states,
citizens, and subjects.” This constitutes the entire mass of the judicial
authority of the Union. Let us now review it in detail. It is, then, to extend:
</p>

<p>
First. To all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE
LAWS OF THE UNITED STATES. This corresponds with the two first classes of
causes, which have been enumerated, as proper for the jurisdiction of the
United States. It has been asked, what is meant by “cases arising under the
Constitution,” in contradiction from those “arising under the laws of the
United States”? The difference has been already explained. All the restrictions
upon the authority of the State legislatures furnish examples of it. They are
not, for instance, to emit paper money; but the interdiction results from the
Constitution, and will have no connection with any law of the United States.
Should paper money, notwithstanding, be emited, the controversies concerning it
would be cases arising under the Constitution and not the laws of the United
States, in the ordinary signification of the terms. This may serve as a sample
of the whole.
</p>

<p>
It has also been asked, what need of the word “equity What equitable causes can
grow out of the Constitution and laws of the United States? There is hardly a
subject of litigation between individuals, which may not involve those
ingredients of FRAUD, ACCIDENT, TRUST, or HARDSHIP, which would render the
matter an object of equitable rather than of legal jurisdiction, as the
distinction is known and established in several of the States. It is the
peculiar province, for instance, of a court of equity to relieve against what
are called hard bargains: these are contracts in which, though there may have
been no direct fraud or deceit, sufficient to invalidate them in a court of
law, yet there may have been some undue and unconscionable advantage taken of
the necessities or misfortunes of one of the parties, which a court of equity
would not tolerate. In such cases, where foreigners were concerned on either
side, it would be impossible for the federal judicatories to do justice without
an equitable as well as a legal jurisdiction. Agreements to convey lands
claimed under the grants of different States, may afford another example of the
necessity of an equitable jurisdiction in the federal courts. This reasoning
may not be so palpable in those States where the formal and technical
distinction between LAW and EQUITY is not maintained, as in this State, where
it is exemplified by every day’s practice.
</p>

<p>
The judiciary authority of the Union is to extend:
</p>

<p>
Second. To treaties made, or which shall be made, under the authority of the
United States, and to all cases affecting ambassadors, other public ministers,
and consuls. These belong to the fourth class of the enumerated cases, as they
have an evident connection with the preservation of the national peace.
</p>

<p>
Third. To cases of admiralty and maritime jurisdiction. These form, altogether,
the fifth of the enumerated classes of causes proper for the cognizance of the
national courts.
</p>

<p>
Fourth. To controversies to which the United States shall be a party. These
constitute the third of those classes.
</p>

<p>
Fifth. To controversies between two or more States; between a State and
citizens of another State; between citizens of different States. These belong
to the fourth of those classes, and partake, in some measure, of the nature of
the last.
</p>

<p>
Sixth. To cases between the citizens of the same State, CLAIMING LANDS UNDER
GRANTS OF DIFFERENT STATES. These fall within the last class, and ARE THE ONLY
INSTANCES IN WHICH THE PROPOSED CONSTITUTION DIRECTLY CONTEMPLATES THE
COGNIZANCE OF DISPUTES BETWEEN THE CITIZENS OF THE SAME STATE.
</p>

<p>
Seventh. To cases between a State and the citizens thereof, and foreign States,
citizens, or subjects. These have been already explained to belong to the
fourth of the enumerated classes, and have been shown to be, in a peculiar
manner, the proper subjects of the national judicature.
</p>

<p>
From this review of the particular powers of the federal judiciary, as marked
out in the Constitution, it appears that they are all conformable to the
principles which ought to have governed the structure of that department, and
which were necessary to the perfection of the system. If some partial
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.
</p>

<p class="letter">
PUBLIUS.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap81"></a>THE FEDERALIST.<br>
No. LXXXI.</h2>

<p class="center">
The Judiciary Continued, and the Distribution of the Judicial Authority
</p>

<p class="center">
From McLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
Let us now return to the partition of the judiciary authority between different
courts, and their relations to each other, “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.”<a href="#fn81.1" id="fnref81.1"><sup>[1]</sup></a>
</p>

<p>
That there ought to be one court of supreme and final jurisdiction, is a
proposition which is not likely to be contested. The reasons for it have been
assigned in another place, and are too obvious to need repetition. The only
question that seems to have been raised concerning it, is, whether it ought to
be a distinct body or a branch of the legislature. The same contradiction is
observable in regard to this matter which has been remarked in several other
cases. The very men who object to the Senate as a court of impeachments, on the
ground of an improper intermixture of powers, advocate, by implication at
least, the propriety of vesting the ultimate decision of all causes, in the
whole or in a part of the legislative body.
</p>

<p>
The arguments, or rather suggestions, upon which this charge is founded, are to
this effect: “The authority of the proposed Supreme Court of the United States,
which is to be a separate and independent body, will be superior to that of the
legislature. The power of construing the laws according to the SPIRIT of the
Constitution, will enable that court to mould them into whatever shape it may
think proper; especially as its decisions will not be in any manner subject to
the revision or correction of the legislative body. This is as unprecedented as
it is dangerous. In Britain, the 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.
</p>

<p>
In the first place, there is not a syllable in the plan under consideration
which DIRECTLY empowers the national courts to construe the laws according to
the spirit of the Constitution, or which gives them any greater latitude in
this respect than may be claimed by the courts of every State. I admit,
however, that the Constitution ought to be the standard of construction for the
laws, and that wherever there is an evident opposition, the laws ought to give
place to the Constitution. But this doctrine is not deducible from any
circumstance peculiar to the plan of the convention, but from the general
theory of a limited Constitution; and as far as it is true, is equally
applicable to most, if not to all the State governments. There can be no
objection, therefore, on this account, to the federal judicature which will not
lie against the local judicatures in general, and which will not serve to
condemn every constitution that attempts to set bounds to legislative
discretion.
</p>

<p>
But perhaps the force of the objection may be thought to consist in the
particular organization of the Supreme Court; in its being composed of a
distinct body of magistrates, instead of being one of the branches of the
legislature, as in the government of Great Britain and that of the State. To
insist upon this point, the authors of the objection must renounce the meaning
they have labored to annex to the celebrated maxim, requiring a separation of
the departments of power. It shall, nevertheless, be conceded to them,
agreeably to the interpretation given to that maxim in the course of these
papers, that it is not violated by vesting the ultimate power of judging in a
PART of the legislative body. But though this be not an absolute violation of
that excellent rule, yet it verges so nearly upon it, as on this account alone
to be less eligible than the mode preferred by the convention. From a body
which had even a partial agency in passing bad laws, we could rarely expect a
disposition to temper and moderate them in the application. The same spirit
which had operated in making them, would be too apt in interpreting them; still
less could it be expected that men who had infringed the Constitution in the
character of legislators, would be disposed to repair the breach in the
character of judges. Nor is this all. Every reason which recommends the tenure
of good behavior for judicial offices, militates against placing the judiciary
power, in the last resort, in a body composed of men chosen for a limited
period. There is an absurdity in referring the determination of causes, in the
first instance, to judges of permanent standing; in the last, to those of a
temporary and mutable constitution. And there is a still greater absurdity in
subjecting the decisions of men, selected for their knowledge of the laws,
acquired by long and laborious study, to the revision and control of men who,
for want of the same advantage, cannot but be deficient in that knowledge. The
members of the legislature will rarely be chosen with a view to those
qualifications which fit men for the stations of judges; and as, on this
account, there will be great reason to apprehend all the ill consequences of
defective information, so, on account of the natural propensity of such bodies
to party divisions, there will be no less reason to fear that the pestilential
breath of faction may poison the fountains of justice. The habit of being
continually marshalled on opposite sides will be too apt to stifle the voice
both of law and of equity.
</p>

<p>
These considerations teach us to applaud the wisdom of those States who have
committed the judicial power, in the last resort, not to a part of the
legislature, but to distinct and independent bodies of men. Contrary to the
supposition of those who have represented the plan of the convention, in this
respect, as novel and unprecedented, it is but a copy of the constitutions of
New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, and Georgia; and the preference which has been given
to those models is highly to be commended.
</p>

<p>
It is not true, in the second place, that the Parliament of Great Britain, or
the legislatures of the particular States, can rectify the exceptionable
decisions of their respective courts, in any other sense than might be done by
a future legislature of the United States. The theory, neither of the British,
nor the State constitutions, authorizes the revisal of a judicial sentence by a
legislative act. Nor is there any thing in the proposed Constitution, more than
in either of them, by which it is forbidden. In the former, as well as in the
latter, the impropriety of the thing, on the general principles of law and
reason, is the sole obstacle. A legislature, without exceeding its province,
cannot reverse a determination once made in a particular case; though it may
prescribe a new rule for future cases. This is the principle, and it applies in
all its consequences, exactly in the same manner and extent, to the State
governments, as to the national government now under consideration. Not the
least difference can be pointed out in any view of the subject.
</p>

<p>
It may in the last place be observed that the supposed danger of judiciary
encroachments on the legislative authority, which has been upon many occasions
reiterated, is in reality a phantom. Particular misconstructions and
contraventions of the will of the legislature may now and then happen; but they
can never be so extensive as to amount to an inconvenience, or in any sensible
degree to affect the order of the political system. This may be inferred with
certainty, from the general nature of the judicial power, from the objects to
which it relates, from the manner in which it is exercised, from its
comparative weakness, and from its total incapacity to support its usurpations
by force. And the inference is greatly fortified by the consideration of the
important constitutional check which the power of instituting impeachments in
one part of the legislative body, and of determining upon them in the other,
would give to that body upon the members of the judicial department. This is
alone a complete security. There never can be danger that the judges, by a
series of deliberate usurpations on the authority of the legislature, would
hazard the united resentment of the body intrusted with it, while this body was
possessed of the means of punishing their presumption, by degrading them from
their stations. While this ought to remove all apprehensions on the subject, it
affords, at the same time, a cogent argument for constituting the Senate a
court for the trial of impeachments.
</p>

<p>
Having now examined, and, I trust, removed the objections to the distinct and
independent organization of the Supreme Court, I proceed to consider the
propriety of the power of constituting inferior courts,<a href="#fn81.2" id="fnref81.2"><sup>[2]</sup></a> and the relations which will subsist
between these and the former.
</p>

<p>
The power of constituting inferior courts is evidently calculated to obviate
the necessity of having recourse to the Supreme Court in every case of federal
cognizance. It is intended to enable the national government to institute or
AUTHORUZE, in each State or district of the United States, a tribunal competent
to the determination of matters of national jurisdiction within its limits.
</p>

<p>
But why, it is asked, might not the same purpose have been accomplished by the
instrumentality of the State courts? This admits of different answers. Though
the fitness and competency of those courts should be allowed in the utmost
latitude, yet the substance of the power in question may still be regarded as a
necessary part of the plan, if it were only to empower the national legislature
to commit to them the cognizance of causes arising out of the national
Constitution. To confer the power of determining such causes upon the existing
courts of the several States, would perhaps be as much “to constitute
tribunals,” as to create new courts with the like power. But ought not a more
direct and explicit provision to have been made in favor of the State courts?
There are, in my opinion, substantial reasons against such a provision: the
most discerning cannot foresee how far the prevalency of a local spirit may be
found to disqualify the local tribunals for the jurisdiction of national
causes; whilst every man may discover, that courts constituted like those of
some of the States would be improper channels of the judicial authority of the
Union. State judges, holding their offices during pleasure, or from year to
year, will be too little independent to be relied upon for an inflexible
execution of the national laws. And if there was a necessity for confiding the
original cognizance of causes arising under those laws to them there would be a
correspondent necessity for leaving the door of appeal as wide as possible. In
proportion to the grounds of confidence in, or distrust of, the subordinate
tribunals, ought to be the facility or difficulty of appeals. And well
satisfied as I am of the propriety of the appellate jurisdiction, in the
several classes of causes to which it is extended by the plan of the
convention. I should consider every thing calculated to give, in practice, an
UNRESTRAINED COURSE to appeals, as a source of public and private
inconvenience.
</p>

<p>
I am not sure, but that it will be found highly expedient and useful, to divide
the United States into four or five or half a dozen districts; and to institute
a federal court in each district, in lieu of one in every State. The judges of
these courts, with the aid of the State judges, may hold circuits for the trial
of causes in the several parts of the respective districts. Justice through
them may be administered with ease and despatch; and appeals may be safely
circumscribed within a narrow compass. This plan appears to me at present the
most eligible of any that could be adopted; and in order to it, it is necessary
that the power of constituting inferior courts should exist in the full extent
in which it is to be found in the proposed Constitution.
</p>

<p>
These reasons seem sufficient to satisfy a candid mind, that the want of such a
power would have been a great defect in the plan. Let us now examine in what
manner the judicial authority is to be distributed between the supreme and the
inferior courts of the Union. 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.
</p>

<p>
It is inherent in the nature of sovereignty not to be amenable to the suit of
an individual WITHOUT ITS CONSENT. This is the general sense, and the general
practice of mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every State in the Union.
Unless, therefore, there is a surrender of this immunity in the plan of the
convention, it will remain with the States, and the danger intimated must be
merely ideal. The circumstances which are necessary to produce an alienation of
State sovereignty were discussed in considering the article of taxation, and
need not be repeated here. A recurrence to the principles there established
will satisfy us, that there is no color to pretend that the State governments
would, by the adoption of that plan, be divested of the privilege of paying
their own debts in their own way, free from every constraint but that which
flows from the obligations of good faith. The contracts between a nation and
individuals are only binding on the conscience of the sovereign, and have no
pretensions to a compulsive force. They confer no right of action, independent
of the sovereign will. To what purpose would it be to authorize suits against
States for the debts they owe? How could recoveries be enforced? It is evident,
it could not be done without waging war against the contracting State; and to
ascribe to the federal courts, by mere implication, and in destruction of a
pre-existing right of the State governments, a power which would involve such a
consequence, would be altogether forced and unwarrantable.
</p>

<p>
Let us resume the train of our observations. We have seen that the original
jurisdiction of the Supreme Court would be confined to two classes of causes,
and those of a nature rarely to occur. In all other cases of federal
cognizance, the original jurisdiction would appertain to the inferior
tribunals; and the Supreme Court would have nothing more than an appellate
jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress
shall make.”
</p>

<p>
The propriety of this appellate jurisdiction has been scarcely called in
question in regard to matters of law; but the clamors have been loud against it
as applied to matters of fact. Some well-intentioned men in this State,
deriving their notions from the language and forms which obtain in our courts,
have been induced to consider it as an implied supersedure of the trial by
jury, in favor of the civil-law mode of trial, which prevails in our courts of
admiralty, probate, and chancery. A technical sense has been affixed to the
term “appellate,” which, in our law parlance, is commonly used in reference to
appeals in the course of the civil law. But if I am not misinformed, the same
meaning would not be given to it in any part of New England. There an appeal
from one jury to another, is familiar both in language and practice, and is
even a matter of course, until there have been two verdicts on one side. The
word “appellate,” therefore, will not be understood in the same sense in New
England as in New York, which shows the impropriety of a technical
interpretation derived from the jurisprudence of any particular State. The
expression, taken in the abstract, denotes nothing more than the power of one
tribunal to review the proceedings of another, either as to the law or fact, or
both. The mode of doing it may depend on ancient custom or legislative
provision (in a new government it must depend on the latter), and may be with
or without the aid of a jury, as may be judged advisable. If, therefore, the
re-examination of a fact once determined by a jury, should in any case be
admitted under the proposed Constitution, it may be so regulated as to be done
by a second jury, either by remanding the cause to the court below for a second
trial of the fact, or by directing an issue immediately out of the Supreme
Court.
</p>

<p>
But it does not follow that the re-examination of a fact once ascertained by a
jury, will be permitted in the Supreme Court. Why may not it be said, with the
strictest propriety, when a writ of error is brought from an inferior to a
superior court of law in this State, that the latter has jurisdiction of the
fact as well as the law? It is true it cannot institute a new inquiry
concerning the fact, but it takes cognizance of it as it appears upon the
record, and pronounces the law arising upon it.<a href="#fn81.3" id="fnref81.3"><sup>[3]</sup></a> This is jurisdiction of both fact and law;
nor is it even possible to separate them. Though the common-law courts of this
State ascertain disputed facts by a jury, yet they unquestionably have
jurisdiction of both fact and law; and accordingly when the former is agreed in
the pleadings, they have no recourse to a jury, but proceed at once to
judgment. I contend, therefore, on this ground, that the expressions,
“appellate jurisdiction, both as to law and fact,” do not necessarily imply a
re-examination in the Supreme Court of facts decided by juries in the inferior
courts.
</p>

<p>
The following train of ideas may well be imagined to have influenced the
convention, in relation to this particular provision. The appellate
jurisdiction of the Supreme Court (it may have been argued) will extend to
causes determinable in different modes, some in the course of the COMMON LAW,
others in the course of the CIVIL LAW. In the former, the revision of the law
only will be, generally speaking, the proper province of the Supreme Court; in
the latter, the re-examination of the fact is agreeable to usage, and in some
cases, of which prize causes are an example, might be essential to the
preservation of the public peace. It is therefore necessary that the appellate
jurisdiction should, in certain cases, extend in the broadest sense to matters
of fact. It will not answer to make an express exception of cases which shall
have been originally tried by a jury, because in the courts of some of the
States ALL CAUSES are tried in this mode;<a href="#fn81.4" id="fnref81.4"><sup>[4]</sup></a> and such an exception would preclude the
revision of matters of fact, as well where it might be proper, as where it
might be improper. To avoid all inconveniencies, it will be safest to declare
generally, that the Supreme Court shall possess appellate jurisdiction both as
to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS
and regulations as the national legislature may prescribe. This will enable the
government to modify it in such a manner as will best answer the ends of public
justice and security.
</p>

<p>
This view of the matter, at any rate, puts it out of all doubt that the
supposed ABOLITION of the trial by jury, by the operation of this provision, is
fallacious and untrue. The legislature of the United States would certainly
have full power to provide, that in appeals to the Supreme Court there should
be no re-examination of facts where they had been tried in the original causes
by juries. This would certainly be an authorized exception; but if, for the
reason already intimated, it should be thought too extensive, it might be
qualified with a limitation to such causes only as are determinable at common
law in that mode of trial.
</p>

<p>
The amount of the observations hitherto made on the authority of the judicial
department is this: that it has been carefully restricted to those causes which
are manifestly proper for the cognizance of the national judicature; that in
the partition of this authority a very small portion of original jurisdiction
has been preserved to the Supreme Court, and the rest consigned to the
subordinate tribunals; that the Supreme Court will possess an appellate
jurisdiction, both as to law and fact, in all the cases referred to them, both
subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; that
this appellate jurisdiction does, in no case, ABOLISH the trial by jury; and
that an ordinary degree of prudence and integrity in the national councils will
insure us solid advantages from the establishment of the proposed judiciary,
without exposing us to any of the inconveniences which have been predicted from
that source.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn81.1"></a> <a href="#fnref81.1">[1]</a>
Article 3, sec. 1.
</p>

<p class="footnote">
<a id="fn81.2"></a> <a href="#fnref81.2">[2]</a>
This power has been absurdly represented as intended to abolish all the county
courts in the several States, which are commonly called inferior courts. But
the expressions of the Constitution are, to constitute “tribunals INFERIOR TO
THE SUPREME COURT”; and the evident design of the provision is to enable the
institution of local courts, subordinate to the Supreme, either in States or
larger districts. It is ridiculous to imagine that county courts were in
contemplation.
</p>

<p class="footnote">
<a id="fn81.3"></a> <a href="#fnref81.3">[3]</a>
This word is composed of JUS and DICTIO, juris dictio or a speaking and
pronouncing of the law.
</p>

<p class="footnote">
<a id="fn81.4"></a> <a href="#fnref81.4">[4]</a>
I hold that the States will have concurrent jurisdiction with the subordinate
federal judicatories, in many cases of federal cognizance, as will be explained
in my next paper.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap82"></a>THE FEDERALIST.<br>
No. LXXXII.</h2>

<p class="center">
The Judiciary Continued
</p>

<p class="center">
From McLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The erection of a new government, whatever care or wisdom may distinguish the
work, cannot fail to originate questions of intricacy and nicety; and these
may, in a particular manner, be expected to flow from the establishment of a
constitution founded upon the total or partial incorporation of a number of
distinct sovereignties. ’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.
</p>

<p>
Such questions, accordingly, have arisen upon the plan proposed by the
convention, and particularly concerning the judiciary department. The principal
of these respect the situation of the State courts in regard to those causes
which are to be submitted to federal jurisdiction. Is this to be exclusive, or
are those courts to possess a concurrent jurisdiction? If the latter, in what
relation will they stand to the national tribunals? These are inquiries which
we meet with in the mouths of men of sense, and which are certainly entitled to
attention.
</p>

<p>
The principles established in a former paper<a href="#fn82.1" id="fnref82.1"><sup>[1]</sup></a> teach us that the States will retain all
PRE-EXISTING authorities which may not be exclusively delegated to the federal
head; and that this exclusive delegation can only exist in one of three cases:
where an exclusive authority is, in express terms, granted to the Union; or
where a particular authority is granted to the Union, and the exercise of a
like authority is prohibited to the States; or where an authority is granted to
the Union, with which a similar authority in the States would be utterly
incompatible. Though these principles may not apply with the same force to the
judiciary as to the legislative power, yet I am inclined to think that they
are, in the main, just with respect to the former, as well as the latter. And
under this impression, I shall lay it down as a rule, that the State courts
will RETAIN the jurisdiction they now have, unless it appears to be taken away
in one of the enumerated modes.
</p>

<p>
The only thing in the proposed Constitution, which wears the appearance of
confining the causes of federal cognizance to the federal courts, is contained
in this passage: “The JUDICIAL POWER of the United States SHALL BE VESTED in
one Supreme Court, and in SUCH inferior courts as the Congress shall from time
to time ordain and establish.” This might either be construed to signify, that
the supreme and subordinate courts of the Union should alone have the power of
deciding those causes to which their authority is to extend; or simply to
denote, that the organs of the national judiciary should be one Supreme Court,
and as many subordinate courts as Congress should think proper to appoint; or
in other words, that the United States should exercise the judicial power with
which they are to be invested, through one supreme tribunal, and a certain
number of inferior ones, to be instituted by them. The first excludes, the last
admits, the concurrent jurisdiction of the State tribunals; and as the first
would amount to an alienation of State power by implication, the last appears
to me the most natural and the most defensible construction.
</p>

<p>
But this doctrine of concurrent jurisdiction is only clearly applicable to
those descriptions of causes of which the State courts have previous
cognizance. It is not equally evident in relation to cases which may grow out
of, and be PECULIAR to, the Constitution to be established; for not to allow
the State courts a right of jurisdiction in such cases, can hardly be
considered as the abridgment of a pre-existing authority. I mean not therefore
to contend that the United States, in the course of legislation upon the
objects intrusted to their direction, may not commit the decision of causes
arising upon a particular regulation to the federal courts solely, if such a
measure should be deemed expedient; but I hold that the State courts will be
divested of no part of their primitive jurisdiction, further than may relate to
an appeal; and I am even of opinion that in every case in which they were not
expressly excluded by the future acts of the national legislature, they will of
course take cognizance of the causes to which those acts may give birth. This I
infer from the nature of judiciary power, and from the general genius of the
system. The judiciary power of every government looks beyond its own local or
municipal laws, and in civil cases lays hold of all subjects of litigation
between parties within its jurisdiction, though the causes of dispute are
relative to the laws of the most distant part of the globe. Those of Japan, not
less than of New York, may furnish the objects of legal discussion to our
courts. When in addition to this we consider the State governments and the
national governments, as they truly are, in the light of kindred systems, and
as parts of ONE WHOLE, the inference seems to be conclusive, that the State
courts would have a concurrent jurisdiction in all cases arising under the laws
of the Union, where it was not expressly prohibited.
</p>

<p>
Here another question occurs: What relation would subsist between the national
and State courts in these instances of concurrent jurisdiction? I answer, that
an appeal would certainly lie from the latter, to the Supreme Court of the
United States. The Constitution in direct terms gives an appellate jurisdiction
to the Supreme Court in all the enumerated cases of federal cognizance in which
it is not to have an original one, without a single expression to confine its
operation to the inferior federal courts. The objects of appeal, not the
tribunals from which it is to be made, are alone contemplated. From this
circumstance, and from the reason of the thing, it ought to be construed to
extend to the State tribunals. Either this must be the case, or the local
courts must be excluded from a concurrent jurisdiction in matters of national
concern, else the judiciary authority of the Union may be eluded at the
pleasure of every plaintiff or prosecutor. Neither of these consequences ought,
without evident necessity, to be involved; the latter would be entirely
inadmissible, as it would defeat some of the most important and avowed purposes
of the proposed government, and would essentially embarrass its measures. Nor
do I perceive any foundation for such a supposition. Agreeably to the remark
already made, the national and State systems are to be regarded as ONE WHOLE.
The courts of the latter will of course be natural auxiliaries to the execution
of the laws of the Union, and an appeal from them will as naturally lie to that
tribunal which is destined to unite and assimilate the principles of national
justice and the rules of national decisions. The evident aim of the plan of the
convention is, that all the causes of the specified classes shall, for weighty
public reasons, receive their original or final determination in the courts of
the Union. To confine, therefore, the general expressions giving appellate
jurisdiction to the Supreme Court, to appeals from the subordinate federal
courts, instead of allowing their extension to the State courts, would be to
abridge the latitude of the terms, in subversion of the intent, contrary to
every sound rule of interpretation.
</p>

<p>
But could an appeal be made to lie from the State courts to the subordinate
federal judicatories? This is another of the questions which have been raised,
and of greater difficulty than the former. The following considerations
countenance the affirmative. The plan of the convention, in the first place,
authorizes the national legislature “to constitute tribunals inferior to the
Supreme Court.”<a href="#fn82.2" id="fnref82.2"><sup>[2]</sup></a> It
declares, in the next place, that “the JUDICIAL POWER of the United States
SHALL BE VESTED in one Supreme Court, and in such inferior courts as Congress
shall ordain and establish”; and it then proceeds to enumerate the cases to
which this judicial power shall extend. It afterwards divides the jurisdiction
of the Supreme Court into original and appellate, but gives no definition of
that of the subordinate courts. The only outlines described for them, are that
they shall be “inferior to the Supreme Court,” and that they shall not exceed
the specified limits of the federal judiciary. Whether their authority shall be
original or appellate, or both, is not declared. All this seems to be left to
the discretion of the legislature. And this being the case, I perceive at
present no impediment to the establishment of an appeal from the State courts
to the subordinate national tribunals; and many advantages attending the power
of doing it may be imagined. It would diminish the motives to the
multiplication of federal courts, and would admit of arrangements calculated to
contract the appellate jurisdiction of the Supreme Court. The State tribunals
may then be left with a more entire charge of federal causes; and appeals, in
most cases in which they may be deemed proper, instead of being carried to the
Supreme Court, may be made to lie from the State courts to district courts of
the Union.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn82.1"></a> <a href="#fnref82.1">[1]</a>
No. 32.
</p>

<p class="footnote">
<a id="fn82.2"></a> <a href="#fnref82.2">[2]</a>
Section 8, Article 1.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap83"></a>THE FEDERALIST.<br>
No. LXXXIII.</h2>

<p class="center">
The Judiciary Continued in Relation to Trial by Jury
</p>

<p class="center">
From MCLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
The objection to the plan of the convention, which has met with most success in
this State, and perhaps in several of the other States, is THAT RELATIVE TO THE
WANT OF A CONSTITUTIONAL PROVISION for the trial by jury in civil cases. The
disingenuous form in which this objection is usually stated has been repeatedly
adverted to and exposed, but continues to be pursued in all the conversations
and writings of the opponents of the plan. The mere silence of the Constitution
in regard to CIVIL CAUSES, is represented as an abolition of the trial by jury,
and the declamations to which it has afforded a pretext are artfully calculated
to induce a persuasion that this pretended abolition is complete and universal,
extending not only to every species of civil, but even to CRIMINAL CAUSES. To
argue with respect to the latter would, however, be as vain and fruitless as to
attempt the serious proof of the EXISTENCE of MATTER, or to demonstrate any of
those propositions which, by their own internal evidence, force conviction,
when expressed in language adapted to convey their meaning.
</p>

<p>
With regard to civil causes, subtleties almost too contemptible for refutation
have been employed to countenance the surmise that a thing which is only NOT
PROVIDED FOR, is entirely ABOLISHED. Every man of discernment must at once
perceive the wide difference between SILENCE and ABOLITION. But as the
inventors of this fallacy have attempted to support it by certain LEGAL MAXIMS
of interpretation, which they have perverted from their true meaning, it may
not be wholly useless to explore the ground they have taken.
</p>

<p>
The maxims on which they rely are of this nature: “A specification of
particulars is an exclusion of generals”; or, “The expression of one thing is
the exclusion of another.” Hence, say they, as the Constitution has established
the trial by jury in criminal cases, and is silent in respect to civil, this
silence is an implied prohibition of trial by jury in regard to the latter.
</p>

<p>
The rules of legal interpretation are rules of 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.
</p>

<p>
A power to constitute courts is a power to prescribe the mode of trial; and
consequently, if nothing was said in the Constitution on the subject of juries,
the legislature would be at liberty either to adopt that institution or to let
it alone. This discretion, in regard to criminal causes, is abridged by the
express injunction of trial by jury in all such cases; but it is, of course,
left at large in relation to civil causes, there being a total silence on this
head. The specification of an obligation to try all criminal causes in a
particular mode, excludes indeed the obligation or necessity of employing the
same mode in civil causes, but does not abridge THE POWER of the legislature to
exercise that mode if it should be thought proper. The pretense, therefore,
that the national legislature would not be at full liberty to submit all the
civil causes of federal cognizance to the determination of juries, is a
pretense destitute of all just foundation.
</p>

<p>
From these observations this conclusion results: that the trial by jury in
civil cases would not be abolished; and that the use attempted to be made of
the maxims which have been quoted, is contrary to reason and common-sense, and
therefore not admissible. Even if these maxims had a precise technical sense,
corresponding with the idea of those who employ them upon the present occasion,
which, however, is not the case, they would still be inapplicable to a
constitution of government. In relation to such a subject, the natural and
obvious sense of its provisions, apart from any technical rules, is the true
criterion of construction.
</p>

<p>
Having now seen that the maxims relied upon will not bear the use made of them,
let us endeavor to ascertain their proper use and true meaning. This will be
best done by examples. The plan of the convention declares that the power of
Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to
certain enumerated cases. This specification of particulars evidently excludes
all pretension to a general legislative authority, because an affirmative grant
of special powers would be absurd, as well as useless, if a general authority
was intended.
</p>

<p>
In like manner the judicial authority of the federal judicatures is declared by
the Constitution to comprehend certain cases particularly specified. The
expression of those cases marks the precise limits, beyond which the federal
courts cannot extend their jurisdiction, because the objects of their
cognizance being enumerated, the specification would be nugatory if it did not
exclude all ideas of more extensive authority.
</p>

<p>
These examples are sufficient to elucidate the maxims which have been
mentioned, and to designate the manner in which they should be used. But that
there may be no misapprehensions upon this subject, I shall add one case more,
to demonstrate the proper use of these maxims, and the abuse which has been
made of them.
</p>

<p>
Let us suppose that by the laws of this State a married woman was incapable of
conveying her estate, and that the legislature, considering this as an evil,
should enact that she might dispose of her property by deed executed in the
presence of a magistrate. In such a case there can be no doubt but the
specification would amount to an exclusion of any other mode of conveyance,
because the woman having no previous power to alienate her property, the
specification determines the particular mode which she is, for that purpose, to
avail herself of. But let us further suppose that in a subsequent part of the
same act it should be declared that no woman should dispose of any estate of a
determinate value without the consent of three of her nearest relations,
signified by their signing the deed; could it be inferred from this regulation
that a married woman might not procure the approbation of her relations to a
deed for conveying property of inferior value? The position is too absurd to
merit a refutation, and yet this is precisely the position which those must
establish who contend that the trial by juries in civil cases is abolished,
because it is expressly provided for in cases of a criminal nature.
</p>

<p>
From these observations it must appear unquestionably true, that trial by jury
is in no case abolished by the proposed Constitution, and it is equally true,
that in those controversies between individuals in which the great body of the
people are likely to be interested, that institution will remain precisely in
the same situation in which it is placed by the State constitutions, and will
be in no degree altered or influenced by the adoption of the plan under
consideration. The foundation of this assertion is, that the national judiciary
will have no cognizance of them, and of course they will remain determinable as
heretofore by the State courts only, and in the manner which the State
constitutions and laws prescribe. All land causes, except where claims under
the grants of different States come into question, and all other controversies
between the citizens of the same State, unless where they depend upon positive
violations of the articles of union, by acts of the State legislatures, will
belong exclusively to the jurisdiction of the State tribunals. Add to this,
that admiralty causes, and almost all those which are of equity jurisdiction,
are determinable under our own government without the intervention of a jury,
and the inference from the whole will be, that this institution, as it exists
with us at present, cannot possibly be affected to any great extent by the
proposed alteration in our system of government.
</p>

<p>
The friends and adversaries of the plan of the convention, if they agree in
nothing else, concur at least in the value they set upon the trial by jury; or
if there is any difference between them it consists in this: the former regard
it as a valuable safeguard to liberty; the latter represent it as the very
palladium of free government. For my own part, the more the operation of the
institution has fallen under my observation, the more reason I have discovered
for holding it in high estimation; and it would be altogether superfluous to
examine to what extent it deserves to be esteemed useful or essential in a
representative republic, or how much more merit it may be entitled to, as a
defense against the oppressions of an hereditary monarch, than as a barrier to
the tyranny of popular magistrates in a popular government. Discussions of this
kind would be more curious than beneficial, as all are satisfied of the utility
of the institution, and of its friendly aspect to liberty. But I must
acknowledge that I cannot readily discern the inseparable connection between
the existence of liberty, and the trial by jury in civil cases. Arbitrary
impeachments, arbitrary methods of prosecuting pretended offenses, and
arbitrary punishments upon arbitrary convictions, have ever appeared to me to
be the great engines of judicial despotism; and these have all relation to
criminal proceedings. The trial by jury in criminal cases, aided by the
habeas-corpus act, seems therefore to be alone concerned in the question. And
both of these are provided for, in the most ample manner, in the plan of the
convention.
</p>

<p>
It has been observed, that trial by jury is a safeguard against an oppressive
exercise of the power of taxation. This observation deserves to be canvassed.
</p>

<p>
It is evident that it can have no influence upon the legislature, in regard to
the AMOUNT of taxes to be laid, to the OBJECTS upon which they are to be
imposed, or to the RULE by which they are to be apportioned. If it can have any
influence, therefore, it must be upon the mode of collection, and the conduct
of the officers intrusted with the execution of the revenue laws.
</p>

<p>
As to the mode of collection in this State, under our own Constitution, the
trial by jury is in most cases out of use. The taxes are usually levied by the
more summary proceeding of distress and sale, as in cases of rent. And it is
acknowledged on all hands, that this is essential to the efficacy of the
revenue laws. The dilatory course of a trial at law to recover the taxes
imposed on individuals, would neither suit the exigencies of the public nor
promote the convenience of the citizens. It would often occasion an
accumulation of costs, more burdensome than the original sum of the tax to be
levied.
</p>

<p>
And as to the conduct of the officers of the revenue, the provision in favor of
trial by jury in criminal cases, will afford the security aimed at. Wilful
abuses of a public authority, to the oppression of the subject, and every
species of official extortion, are offenses against the government, for which
the persons who commit them may be indicted and punished according to the
circumstances of the case.
</p>

<p>
The excellence of the trial by jury in civil cases appears to depend on
circumstances foreign to the preservation of liberty. The strongest argument in
its favor is, that it is a security against corruption. As there is always more
time and better opportunity to tamper with a standing body of magistrates than
with a jury summoned for the occasion, there is room to suppose that a corrupt
influence would more easily find its way to the former than to the latter. The
force of this consideration is, however, diminished by others. The sheriff, who
is the summoner of ordinary juries, and the clerks of courts, who have the
nomination of special juries, are themselves standing officers, and, acting
individually, may be supposed more accessible to the touch of corruption than
the judges, who are a collective body. It is not difficult to see, that it
would be in the power of those officers to select jurors who would serve the
purpose of the party as well as a corrupted bench. In the next place, it may
fairly be supposed, that there would be less difficulty in gaining some of the
jurors promiscuously taken from the public mass, than in gaining men who had
been chosen by the government for their probity and good character. But making
every deduction for these considerations, the trial by jury must still be a
valuable check upon corruption. It greatly multiplies the impediments to its
success. As matters now stand, it would be necessary to corrupt both court and
jury; for where the jury have gone evidently wrong, the court will generally
grant a new trial, and it would be in most cases of little use to practice upon
the jury, unless the court could be likewise gained. Here then is a double
security; and it will readily be perceived that this complicated agency tends
to preserve the purity of both institutions. By increasing the obstacles to
success, it discourages attempts to seduce the integrity of either. The
temptations to prostitution which the judges might have to surmount, must
certainly be much fewer, while the co-operation of a jury is necessary, than
they might be, if they had themselves the exclusive determination of all
causes.
</p>

<p>
Notwithstanding, therefore, the doubts I have expressed, as to the essentiality
of trial by jury in civil cases to liberty, I admit that it is in most cases,
under proper regulations, an excellent method of determining questions of
property; and that on this account alone it would be entitled to a
constitutional provision in its favor if it were possible to fix the limits
within which it ought to be comprehended. There is, however, in all cases,
great difficulty in this; and men not blinded by enthusiasm must be sensible
that in a federal government, which is a composition of societies whose ideas
and institutions in relation to the matter materially vary from each other,
that difficulty must be not a little augmented. For my own part, at every new
view I take of the subject, I become more convinced of the reality of the
obstacles which, we are authoritatively informed, prevented the insertion of a
provision on this head in the plan of the convention.
</p>

<p>
The great difference between the limits of the jury trial in different States
is not generally understood; and as it must have considerable influence on the
sentence we ought to pass upon the omission complained of in regard to this
point, an explanation of it is necessary. In this State, our judicial
establishments resemble, more nearly than in any other, those of Great Britain.
We have courts of common law, courts of probates (analogous in certain matters
to the spiritual courts in England), a court of admiralty and a court of
chancery. In the courts of common law only, the trial by jury prevails, and
this with some exceptions. In all the others a single judge presides, and
proceeds in general either according to the course of the canon or civil law,
without the aid of a jury.<a href="#fn83.1" id="fnref83.1"><sup>[1]</sup></a>
In New Jersey, there is a court of chancery which proceeds like ours, but
neither courts of admiralty nor of probates, in the sense in which these last
are established with us. In that State the courts of common law have the
cognizance of those causes which with us are determinable in the courts of
admiralty and of probates, and of course the jury trial is more extensive in
New Jersey than in New York. In Pennsylvania, this is perhaps still more the
case, for there is no court of chancery in that State, and its common-law
courts have equity jurisdiction. It has a court of admiralty, but none of
probates, at least on the plan of ours. Delaware has in these respects imitated
Pennsylvania. Maryland approaches more nearly to New York, as does also
Virginia, except that the latter has a plurality of chancellors. North Carolina
bears most affinity to Pennsylvania; South Carolina to Virginia. I believe,
however, that in some of those States which have distinct courts of admiralty,
the causes depending in them are triable by juries. In Georgia there are none
but common-law courts, and an appeal of course lies from the verdict of one
jury to another, which is called a special jury, and for which a particular
mode of appointment is marked out. In Connecticut, they have no distinct courts
either of chancery or of admiralty, and their courts of probates have no
jurisdiction of causes. Their common-law courts have admiralty and, to a
certain extent, equity jurisdiction. In cases of importance, their General
Assembly is the only court of chancery. In Connecticut, therefore, the trial by
jury extends in PRACTICE further than in any other State yet mentioned. Rhode
Island is, I believe, in this particular, pretty much in the situation of
Connecticut. Massachusetts and New Hampshire, in regard to the blending of law,
equity, and admiralty jurisdictions, are in a similar predicament. In the four
Eastern States, the trial by jury not only stands upon a broader foundation
than in the other States, but it is attended with a peculiarity unknown, in its
full extent, to any of them. There is an appeal OF COURSE from one jury to
another, till there have been two verdicts out of three on one side.
</p>

<p>
From this sketch it appears that there is a material diversity, as well in the
modification as in the extent of the institution of trial by jury in civil
cases, in the several States; and from this fact these obvious reflections
flow: first, that no general rule could have been fixed upon by the convention
which would have corresponded with the circumstances of all the States; and
secondly, that more or at least as much might have been hazarded by taking the
system of any one State for a standard, as by omitting a provision altogether
and leaving the matter, as has been done, to legislative regulation.
</p>

<p>
The propositions which have been made for supplying the omission have rather
served to illustrate than to obviate the difficulty of the thing. The minority
of Pennsylvania have proposed this mode of expression for the purpose “Trial by
jury shall be as heretofore” and this I maintain would be senseless and
nugatory. The United States, in their united or collective capacity, are the
OBJECT to which all general provisions in the Constitution must necessarily be
construed to refer. Now it is evident that though trial by jury, with various
limitations, is known in each State individually, yet in the United States, AS
SUCH, it is at this time altogether unknown, because the present federal
government has no judiciary power whatever; and consequently there is no proper
antecedent or previous establishment to which the term HERETOFORE could relate.
It would therefore be destitute of a precise meaning, and inoperative from its
uncertainty.
</p>

<p>
As, on the one hand, the form of the provision would not fulfil the intent of
its proposers, so, on the other, if I apprehend that intent rightly, it would
be in itself inexpedient. I presume it to be, that causes in the federal courts
should be tried by jury, if, in the State where the courts sat, that mode of
trial would obtain in a similar case in the State courts; that is to say,
admiralty causes should be tried in Connecticut by a jury, in New York without
one. The capricious operation of so dissimilar a method of trial in the same
cases, under the same government, is of itself sufficient to indispose every
wellregulated judgment towards it. Whether the cause should be tried with or
without a jury, would depend, in a great number of cases, on the accidental
situation of the court and parties.
</p>

<p>
But this is not, in my estimation, the greatest objection. I feel a deep and
deliberate conviction that there are many cases in which the trial by jury is
an ineligible one. I think it so particularly in cases which concern the public
peace with foreign nations that is, in most cases where the question turns
wholly on the laws of nations. Of this nature, among others, are all prize
causes. Juries cannot be supposed competent to investigations that require a
thorough knowledge of the laws and usages of nations; and they will sometimes
be under the influence of impressions which will not suffer them to pay
sufficient regard to those considerations of public policy which ought to guide
their inquiries. There would of course be always danger that the rights of
other nations might be infringed by their decisions, so as to afford occasions
of reprisal and war. Though the proper province of juries be to determine
matters of fact, yet in most cases legal consequences are complicated with fact
in such a manner as to render a separation impracticable.
</p>

<p>
It will add great weight to this remark, in relation to prize causes, to
mention that the method of determining them has been thought worthy of
particular regulation in various treaties between different powers of Europe,
and that, pursuant to such treaties, they are determinable in Great Britain, in
the last resort, before the king himself, in his privy council, where the fact,
as well as the law, undergoes a re-examination. This alone demonstrates the
impolicy of inserting a fundamental provision in the Constitution which would
make the State systems a standard for the national government in the article
under consideration, and the danger of encumbering the government with any
constitutional provisions the propriety of which is not indisputable.
</p>

<p>
My convictions are equally strong that great advantages result from the
separation of the equity from the law jurisdiction, and that the causes which
belong to the former would be improperly committed to juries. The great and
primary use of a court of equity is to give relief IN EXTRAORDINARY CASES,
which are EXCEPTIONS<a href="#fn83.2" id="fnref83.2"><sup>[2]</sup></a> to
general rules. To unite the jurisdiction of such cases with the ordinary
jurisdiction, must have a tendency to unsettle the general rules, and to
subject every case that arises to a SPECIAL determination; while a separation
of the one from the other has the contrary effect of rendering one a sentinel
over the other, and of keeping each within the expedient limits. Besides this,
the circumstances that constitute cases proper for courts of equity are in many
instances so nice and intricate, that they are incompatible with the genius of
trials by jury. They require often such long, deliberate, and critical
investigation as would be impracticable to men called from their occupations,
and obliged to decide before they were permitted to return to them. The
simplicity and expedition which form the distinguishing characters of this mode
of trial require that the matter to be decided should be reduced to some single
and obvious point; while the litigations usual in chancery frequently
comprehend a long train of minute and independent particulars.
</p>

<p>
It is true that the separation of the equity from the legal jurisdiction is
peculiar to the English system of jurisprudence: which is the model that has
been followed in several of the States. But it is equally true that the trial
by jury has been unknown in every case in which they have been united. And the
separation is essential to the preservation of that institution in its pristine
purity. The nature of a court of equity will readily permit the extension of
its jurisdiction to matters of law; but it is not a little to be suspected,
that the attempt to extend the jurisdiction of the courts of law to matters of
equity will not only be unproductive of the advantages which may be derived
from courts of chancery, on the plan upon which they are established in this
State, but will tend gradually to change the nature of the courts of law, and
to undermine the trial by jury, by introducing questions too complicated for a
decision in that mode.
</p>

<p>
These appeared to be conclusive reasons against incorporating the systems of
all the States, in the formation of the national judiciary, according to what
may be conjectured to have been the attempt of the Pennsylvania minority. Let
us now examine how far the proposition of Massachusetts is calculated to remedy
the supposed defect.
</p>

<p>
It is in this form: “In civil actions between citizens of different States,
every issue of fact, arising in ACTIONS AT COMMON LAW, may be tried by a jury
if the parties, or either of them request it.”
</p>

<p>
This, at best, is a proposition confined to one description of causes; and the
inference is fair, either that the Massachusetts convention considered that as
the only class of federal causes, in which the trial by jury would be proper;
or that if desirous of a more extensive provision, they found it impracticable
to devise one which would properly answer the end. If the first, the omission
of a regulation respecting so partial an object can never be considered as a
material imperfection in the system. If the last, it affords a strong
corroboration of the extreme difficulty of the thing.
</p>

<p>
But this is not all: if we advert to the observations already made respecting
the courts that subsist in the several States of the Union, and the different
powers exercised by them, it will appear that there are no expressions more
vague and indeterminate than those which have been employed to characterize
THAT species of causes which it is intended shall be entitled to a trial by
jury. In this State, the boundaries between actions at common law and actions
of equitable jurisdiction, are ascertained in conformity to the rules which
prevail in England upon that subject. In many of the other States the
boundaries are less precise. In some of them every cause is to be tried in a
court of common law, and upon that foundation every action may be considered as
an action at common law, to be determined by a jury, if the parties, or either
of them, choose it. Hence the same irregularity and confusion would be
introduced by a compliance with this proposition, that I have already noticed
as resulting from the regulation proposed by the Pennsylvania minority. In one
State a cause would receive its determination from a jury, if the parties, or
either of them, requested it; but in another State, a cause exactly similar to
the other, must be decided without the intervention of a jury, because the
State judicatories varied as to common-law jurisdiction.
</p>

<p>
It is obvious, therefore, that the Massachusetts proposition, upon this subject
cannot operate as a general regulation, until some uniform plan, with respect
to the limits of common-law and equitable jurisdictions, shall be adopted by
the different States. To devise a plan of that kind is a task arduous in
itself, and which it would require much time and reflection to mature. It would
be extremely difficult, if not impossible, to suggest any general regulation
that would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.
</p>

<p>
It may be asked, Why could not a reference have been made to the constitution
of this State, taking that, which is allowed by me to be a good one, as a
standard for the United States? I answer that it is not very probable the other
States would entertain the same opinion of our institutions as we do ourselves.
It is natural to suppose that they are hitherto more attached to their own, and
that each would struggle for the preference. If the plan of taking one State as
a model for the whole had been thought of in the convention, it is to be
presumed that the adoption of it in that body would have been rendered
difficult by the predilection of each representation in favor of its own
government; and it must be uncertain which of the States would have been taken
as the model. It has been shown that many of them would be improper ones. And I
leave it to conjecture, whether, under all circumstances, it is most likely
that New York, or some other State, would have been preferred. But admit that a
judicious selection could have been effected in the convention, still there
would have been great danger of jealousy and disgust in the other States, at
the partiality which had been shown to the institutions of one. The enemies of
the plan would have been furnished with a fine pretext for raising a host of
local prejudices against it, which perhaps might have hazarded, in no
inconsiderable degree, its final establishment.
</p>

<p>
To avoid the embarrassments of a definition of the cases which the trial by
jury ought to embrace, it is sometimes suggested by men of enthusiastic
tempers, that a provision might have been inserted for establishing it in all
cases whatsoever. For this I believe, no precedent is to be found in any member
of the Union; and the considerations which have been stated in discussing the
proposition of the minority of Pennsylvania, must satisfy every sober mind that
the establishment of the trial by jury in ALL cases would have been an
unpardonable error in the plan.
</p>

<p>
In short, the more it is considered the more arduous will appear the task of
fashioning a provision in such a form as not to express too little to answer
the purpose, or too much to be advisable; or which might not have opened other
sources of opposition to the great and essential object of introducing a firm
national government.
</p>

<p>
I cannot but persuade myself, on the other hand, that the different lights in
which the subject has been placed in the course of these observations, will go
far towards removing in candid minds the apprehensions they may have
entertained on the point. They have tended to show that the security of liberty
is materially concerned only in the trial by jury in criminal cases, which is
provided for in the most ample manner in the plan of the convention; that even
in far the greatest proportion of civil cases, and those in which the great
body of the community is interested, that mode of trial will remain in its full
force, as established in the State constitutions, untouched and unaffected by
the plan of the convention; that it is in no case abolished<a href="#fn83.3" id="fnref83.3"><sup>[3]</sup></a> by that plan; and that there are great if
not insurmountable difficulties in the way of making any precise and proper
provision for it in a Constitution for the United States.
</p>

<p>
The best judges of the matter will be the least anxious for a constitutional
establishment of the trial by jury in civil cases, and will be the most ready
to admit that the changes which are continually happening in the affairs of
society may render a different mode of determining questions of property
preferable in many cases in which that mode of trial now prevails. For my part,
I acknowledge myself to be convinced that even in this State it might be
advantageously extended to some cases to which it does not at present apply,
and might as advantageously be abridged in others. It is conceded by all
reasonable men that it ought not to obtain in all cases. The examples of
innovations which contract its ancient limits, as well in these States as in
Great Britain, afford a strong presumption that its former extent has been
found inconvenient, and give room to suppose that future experience may
discover the propriety and utility of other exceptions. I suspect it to be
impossible in the nature of the thing to fix the salutary point at which the
operation of the institution ought to stop, and this is with me a strong
argument for leaving the matter to the discretion of the legislature.
</p>

<p>
This is now clearly understood to be the case in Great Britain, and it is
equally so in the State of Connecticut; and yet it may be safely affirmed that
more numerous encroachments have been made upon the trial by jury in this State
since the Revolution, though provided for by a positive article of our
constitution, than has happened in the same time either in Connecticut or Great
Britain. It may be added that these encroachments have generally originated
with the men who endeavor to persuade the people they are the warmest defenders
of popular liberty, but who have rarely suffered constitutional obstacles to
arrest them in a favorite career. The truth is that the general GENIUS of a
government is all that can be substantially relied upon for permanent effects.
Particular provisions, though not altogether useless, have far less virtue and
efficacy than are commonly ascribed to them; and the want of them will never
be, with men of sound discernment, a decisive objection to any plan which
exhibits the leading characters of a good government.
</p>

<p>
It certainly sounds not a little harsh and extraordinary to affirm that there
is no security for liberty in a Constitution which expressly establishes the
trial by jury in criminal cases, because it does not do it in civil also; while
it is a notorious fact that Connecticut, which has been always regarded as the
most popular State in the Union, can boast of no constitutional provision for
either.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn83.1"></a> <a href="#fnref83.1">[1]</a>
It has been erroneously insinuated, with regard to the court of chancery, that
this court generally tries disputed facts by a jury. The truth is, that
references to a jury in that court rarely happen, and are in no case necessary
but where the validity of a devise of land comes into question.
</p>

<p class="footnote">
<a id="fn83.2"></a> <a href="#fnref83.2">[2]</a>
It is true that the principles by which that relief is governed are now reduced
to a regular system; but it is not the less true that they are in the main
applicable to SPECIAL circumstances, which form exceptions to general rules.
</p>

<p class="footnote">
<a id="fn83.3"></a> <a href="#fnref83.3">[3]</a>
<i>Vide</i> No. 81, in which the supposition of its being abolished by the
appellate jurisdiction in matters of fact being vested in the Supreme Court, is
examined and refuted.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap84"></a>THE FEDERALIST.<br>
No. LXXXIV.</h2>

<p class="center">
Certain General and Miscellaneous Objections to the Constitution Considered and
Answered
</p>

<p class="center">
From McLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
In the course of the foregoing review of the Constitution, I have taken notice
of, and endeavored to answer most of the objections which have appeared against
it. There, however, remain a few which either did not fall naturally under any
particular head or were forgotten in their proper places. These shall now be
discussed; but as the subject has been drawn into great length, I shall so far
consult brevity as to comprise all my observations on these miscellaneous
points in a single paper.
</p>

<p>
The most considerable of the remaining objections is that the plan of the
convention contains no bill of rights. Among other answers given to this, it
has been upon different occasions remarked that the constitutions of several of
the States are in a similar predicament. I add that New York is of the number.
And yet the opposers of the new system, in this State, who profess an unlimited
admiration for its constitution, are among the most intemperate partisans of a
bill of rights. To justify their zeal in this matter, they allege two things:
one is that, though the constitution of New York has no bill of rights prefixed
to it, yet it contains, in the body of it, various provisions in favor of
particular privileges and rights, which, in substance amount to the same thing;
the other is, that the Constitution adopts, in their full extent, the common
and statute law of Great Britain, by which many other rights, not expressed in
it, are equally secured.
</p>

<p>
To the first I answer, that the Constitution proposed by the convention
contains, as well as the constitution of this State, a number of such
provisions.
</p>

<p>
Independent of those which relate to the structure of the government, we find
the following: Article 1, section 3, clause 7 “Judgment in cases of impeachment
shall not extend further than to removal from office, and disqualification to
hold and enjoy any office of honor, trust, or profit under the United States;
but the party convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law.” Section 9, of
the same article, clause 2 “The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the public
safety may require it.” Clause 3 “No bill of attainder or ex-post-facto law
shall be passed.” Clause 7 “No title of nobility shall be granted by the United
States; and no person holding any office of profit or trust under them, shall,
without the consent of the Congress, accept of any present, emolument, office,
or title of any kind whatever, from any king, prince, or foreign state.”
Article 3, section 2, clause 3 “The trial of all crimes, except in cases of
impeachment, shall be by jury; and such trial shall be held in the State where
the said crimes shall have been committed; but when not committed within any
State, the trial shall be at such place or places as the Congress may by law
have directed.” Section 3, of the same article “Treason against the United
States shall consist only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. No person shall be convicted of treason,
unless on the testimony of two witnesses to the same overt act, or on
confession in open court.” And clause 3, of the same section “The Congress
shall have power to declare the punishment of treason; but no attainder of
treason shall work corruption of blood, or forfeiture, except during the life
of the person attainted.”
</p>

<p>
It may well be a question, whether these are not, upon the whole, of equal
importance with any which are to be found in the constitution of this State.
The establishment of the writ of habeas corpus, the prohibition of
ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO
CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to
liberty and republicanism than any it contains. The creation of crimes after
the commission of the fact, or, in other words, the subjecting of men to
punishment for things which, when they were done, were breaches of no law, and
the practice of arbitrary imprisonments, have been, in all ages, the favorite
and most formidable instruments of tyranny. The observations of the judicious
Blackstone,<a href="#fn84.1" id="fnref84.1"><sup>[1]</sup></a> 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.”<a href="#fn84.2" id="fnref84.2"><sup>[2]</sup></a>
</p>

<p>
Nothing need be said to illustrate the importance of the prohibition of titles
of nobility. This may truly be denominated the corner-stone of republican
government; for so long as they are excluded, there can never be serious danger
that the government will be any other than that of the people.
</p>

<p>
To the second that is, to the pretended establishment of the common and state
law by the Constitution, I answer, that they are expressly made subject “to
such alterations and provisions as the legislature shall from time to time make
concerning the same.” They are therefore at any moment liable to repeal by the
ordinary legislative power, and of course have no constitutional sanction. The
only use of the declaration was to recognize the ancient law and to remove
doubts which might have been occasioned by the Revolution. This consequently
can be considered as no part of a declaration of rights, which under our
constitutions must be intended as limitations of the power of the government
itself.
</p>

<p>
It has been several times truly remarked that bills of rights are, in their
origin, stipulations between kings and their subjects, abridgements of
prerogative in favor of privilege, reservations of rights not surrendered to
the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from
King John. Such were the subsequent confirmations of that charter by succeeding
princes. Such was the PETITION OF RIGHT assented to by Charles I., in the
beginning of his reign. Such, also, was the Declaration of Right presented by
the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown
into the form of an act of parliament called the Bill of Rights. It is evident,
therefore, that, according to their primitive signification, they have no
application to constitutions professedly founded upon the power of the people,
and executed by their immediate representatives and servants. Here, in
strictness, the people surrender nothing; and as they retain every thing they
have no need of particular reservations. “WE, THE PEOPLE of the United States,
to secure the blessings of liberty to ourselves and our posterity, do ORDAIN
and ESTABLISH this Constitution for the United States of America.” Here is a
better recognition of popular rights, than volumes of those aphorisms which
make the principal figure in several of our State bills of rights, and which
would sound much better in a treatise of ethics than in a constitution of
government.
</p>

<p>
But a minute detail of particular rights is certainly far less applicable to a
Constitution like that under consideration, which is merely intended to
regulate the general political interests of the nation, than to a constitution
which has the regulation of every species of personal and private concerns. If,
therefore, the loud clamors against the plan of the convention, on this score,
are well founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them contain all
which, in relation to their objects, is reasonably to be desired.
</p>

<p>
I go further, and affirm that bills of rights, in the sense and to the extent
in which they are contended for, are not only unnecessary in the proposed
Constitution, but would even be dangerous. They would contain various
exceptions to powers not granted; and, on this very account, would afford a
colorable pretext to claim more than were granted. For why declare that things
shall not be done which there is no power to do? Why, for instance, should it
be said that the liberty of the press shall not be restrained, when no power is
given by which restrictions may be imposed? I will not contend that such a
provision would confer a regulating power; but it is evident that it would
furnish, to men disposed to usurp, a plausible pretense for claiming that
power. They might urge with a semblance of reason, that the Constitution ought
not to be charged with the absurdity of providing against the abuse of an
authority which was not given, and that the provision against restraining the
liberty of the press afforded a clear implication, that a power to prescribe
proper regulations concerning it was intended to be vested in the national
government. This may serve as a specimen of the numerous handles which would be
given to the doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of rights.
</p>

<p>
On the subject of the liberty of the press, as much as has been said, I cannot
forbear adding a remark or two: in the first place, I observe, that there is
not a syllable concerning it in the constitution of this State; in the next, I
contend, that whatever has been said about it in that of any other State,
amounts to nothing. What signifies a declaration, that “the liberty of the
press shall be inviolably preserved”? What is the liberty of the press? Who can
give it any definition which would not leave the utmost latitude for evasion? I
hold it to be impracticable; and from this I infer, that its security, whatever
fine declarations may be inserted in any constitution respecting it, must
altogether depend on public opinion, and on the general spirit of the people
and of the government.<a href="#fn84.3" id="fnref84.3"><sup>[3]</sup></a> And
here, after all, as is intimated upon another occasion, must we seek for the
only solid basis of all our rights.
</p>

<p>
There remains but one other view of this matter to conclude the point. The
truth is, after all the declamations we have heard, that the Constitution is
itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.
The several bills of rights in Great Britain form its Constitution, and
conversely the constitution of each State is its bill of rights. And the
proposed Constitution, if adopted, will be the bill of rights of the Union. Is
it one object of a bill of rights to declare and specify the political
privileges of the citizens in the structure and administration of the
government? This is done in the most ample and precise manner in the plan of
the convention; comprehending various precautions for the public security,
which are not to be found in any of the State constitutions. Is another object
of a bill of rights to define certain immunities and modes of proceeding, which
are relative to personal and private concerns? This we have seen has also been
attended to, in a variety of cases, in the same plan. Adverting therefore to
the substantial meaning of a bill of rights, it is absurd to allege that it is
not to be found in the work of the convention. It may be said that it does not
go far enough, though it will not be easy to make this appear; but it can with
no propriety be contended that there is no such thing. It certainly must be
immaterial what mode is observed as to the order of declaring the rights of the
citizens, if they are to be found in any part of the instrument which
establishes the government. And hence it must be apparent, that much of what
has been said on this subject rests merely on verbal and nominal distinctions,
entirely foreign from the substance of the thing.
</p>

<p>
Another objection which has been made, and which, from the frequency of its
repetition, it is to be presumed is relied on, is of this nature: “It is
improper,” say the objectors, “to confer such large powers, as are proposed,
upon the national government, because the seat of that government must of
necessity be too remote from many of the States to admit of a proper knowledge
on the part of the constituent, of the conduct of the representative body.”
This argument, if it proves any thing, proves that there ought to be no general
government whatever. For the powers which, it seems to be agreed on all hands,
ought to be vested in the Union, cannot be safely intrusted to a body which is
not under every requisite control. But there are satisfactory reasons to show
that the objection is in reality not well founded. There is in most of the
arguments which relate to distance a palpable illusion of the imagination. What
are the sources of information by which the people in Montgomery County must
regulate their judgment of the conduct of their representatives in the State
legislature? Of personal observation they can have no benefit. This is confined
to the citizens on the spot. They must therefore depend on the information of
intelligent men, in whom they confide; and how must these men obtain their
information? Evidently from the complexion of public measures, from the public
prints, from correspondences with their representatives, and with other persons
who reside at the place of their deliberations. This does not apply to
Montgomery County only, but to all the counties at any considerable distance
from the seat of government.
</p>

<p>
It is equally evident that the same sources of information would be open to the
people in relation to the conduct of their representatives in the general
government, and the impediments to a prompt communication which distance may be
supposed to create, will be overbalanced by the effects of the vigilance of the
State governments. The executive and legislative bodies of each State will be
so many sentinels over the persons employed in every department of the national
administration; and as it will be in their power to adopt and pursue a regular
and effectual system of intelligence, they can never be at a loss to know the
behavior of those who represent their constituents in the national councils,
and can readily communicate the same knowledge to the people. Their disposition
to apprise the community of whatever may prejudice its interests from another
quarter, may be relied upon, if it were only from the rivalship of power. And
we may conclude with the fullest assurance that the people, through that
channel, will be better informed of the conduct of their national
representatives, than they can be by any means they now possess of that of
their State representatives.
</p>

<p>
It ought also to be remembered that the citizens who inhabit the country at and
near the seat of government will, in all questions that affect the general
liberty and prosperity, have the same interest with those who are at a
distance, and that they will stand ready to sound the alarm when necessary, and
to point out the actors in any pernicious project. The public papers will be
expeditious messengers of intelligence to the most remote inhabitants of the
Union.
</p>

<p>
Among the many curious objections which have appeared against the proposed
Constitution, the most extraordinary and the least colorable is derived from
the want of some provision respecting the debts due TO the United States. This
has been represented as a tacit relinquishment of those debts, and as a wicked
contrivance to screen public defaulters. The newspapers have teemed with the
most inflammatory railings on this head; yet there is nothing clearer than that
the suggestion is entirely void of foundation, the offspring of extreme
ignorance or extreme dishonesty. In addition to the remarks I have made upon
the subject in another place, I shall only observe that as it is a plain
dictate of common-sense, so it is also an established doctrine of political
law, that “STATES NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY
OF THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.”<a
href="#fn84.4" id="fnref84.4"><sup>[4]</sup></a>
</p>

<p>
The last objection of any consequence, which I at present recollect, turns upon
the article of expense. If it were even true, that the adoption of the proposed
government would occasion a considerable increase of expense, it would be an
objection that ought to have no weight against the plan.
</p>

<p>
The great bulk of the citizens of America are with reason convinced, that Union
is the basis of their political happiness. Men of sense of all parties now,
with few exceptions, agree that it cannot be preserved under the present
system, nor without radical alterations; that new and extensive powers ought to
be granted to the national head, and that these require a different
organization of the federal government a single body being an unsafe depositary
of such ample authorities. In conceding all this, the question of expense must
be given up; for it is impossible, with any degree of safety, to narrow the
foundation upon which the system is to stand. The two branches of the
legislature are, in the first instance, to consist of only sixty-five persons,
which is the same number of which Congress, under the existing Confederation,
may be composed. It is true that this number is intended to be increased; but
this is to keep pace with the progress of the population and resources of the
country. It is evident that a less number would, even in the first instance,
have been unsafe, and that a continuance of the present number would, in a more
advanced stage of population, be a very inadequate representation of the
people.
</p>

<p>
Whence is the dreaded augmentation of expense to spring? One source indicated,
is the multiplication of offices under the new government. Let us examine this
a little.
</p>

<p>
It is evident that the principal departments of the administration under the
present government, are the same which will be required under the new. There
are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for
Domestic Affairs, a Board of Treasury, consisting of three persons, a
Treasurer, assistants, clerks, etc. These officers are indispensable under any
system, and will suffice under the new as well as the old. As to ambassadors
and other ministers and agents in foreign countries, the proposed Constitution
can make no other difference than to render their characters, where they
reside, more respectable, and their services more useful. As to persons to be
employed in the collection of the revenues, it is unquestionably true that
these will form a very considerable addition to the number of federal officers;
but it will not follow that this will occasion an increase of public expense.
It will be in most cases nothing more than an exchange of State for national
officers. In the collection of all duties, for instance, the persons employed
will be wholly of the latter description. The States individually will stand in
no need of any for this purpose. What difference can it make in point of
expense to pay officers of the customs appointed by the State or by the United
States? There is no good reason to suppose that either the number or the
salaries of the latter will be greater than those of the former.
</p>

<p>
Where then are we to seek for those additional articles of expense which are to
swell the account to the enormous size that has been represented to us? The
chief item which occurs to me respects the support of the judges of the United
States. I do not add the President, because there is now a president of
Congress, whose expenses may not be far, if any thing, short of those which
will be incurred on account of the President of the United States. The support
of the judges will clearly be an extra expense, but to what extent will depend
on the particular plan which may be adopted in regard to this matter. But upon
no reasonable plan can it amount to a sum which will be an object of material
consequence.
</p>

<p>
Let us now see what there is to counterbalance any extra expense that may
attend the establishment of the proposed government. The first thing which
presents itself is that a great part of the business which now keeps Congress
sitting through the year will be transacted by the President. Even the
management of foreign negotiations will naturally devolve upon him, according
to general principles concerted with the Senate, and subject to their final
concurrence. Hence it is evident that a portion of the year will suffice for
the session of both the Senate and the House of Representatives; we may suppose
about a fourth for the latter and a third, or perhaps half, for the former. The
extra business of treaties and appointments may give this extra occupation to
the Senate. From this circumstance we may infer that, until the House of
Representatives shall be increased greatly beyond its present number, there
will be a considerable saving of expense from the difference between the
constant session of the present and the temporary session of the future
Congress.
</p>

<p>
But there is another circumstance of great importance in the view of economy.
The business of the United States has hitherto occupied the State legislatures,
as well as Congress. The latter has made requisitions which the former have had
to provide for. Hence it has happened that the sessions of the State
legislatures have been protracted greatly beyond what was necessary for the
execution of the mere local business of the States. More than half their time
has been frequently employed in matters which related to the United States. Now
the members who compose the legislatures of the several States amount to two
thousand and upwards, which number has hitherto performed what under the new
system will be done in the first instance by sixty-five persons, and probably
at no future period by above a fourth or fifth of that number. The Congress
under the proposed government will do all the business of the United States
themselves, without the intervention of the State legislatures, who thenceforth
will have only to attend to the affairs of their particular States, and will
not have to sit in any proportion as long as they have heretofore done. This
difference in the time of the sessions of the State legislatures will be clear
gain, and will alone form an article of saving, which may be regarded as an
equivalent for any additional objects of expense that may be occasioned by the
adoption of the new system.
</p>

<p>
The result from these observations is that the sources of additional expense
from the establishment of the proposed Constitution are much fewer than may
have been imagined; that they are counterbalanced by considerable objects of
saving; and that while it is questionable on which side the scale will
preponderate, it is certain that a government less expensive would be
incompetent to the purposes of the Union.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn84.1"></a> <a href="#fnref84.1">[1]</a>
<i>Vide</i> Blackstone’s <i>Commentaries</i>, vol. 1., p. 136.
</p>

<p class="footnote">
<a id="fn84.2"></a> <a href="#fnref84.2">[2]</a>
<i>Vide</i> Blackstone’s <i>Commentaries</i>, vol. iv., p. 438.
</p>

<p class="footnote">
<a id="fn84.3"></a> <a href="#fnref84.3">[3]</a>
To show that there is a power in the Constitution by which the liberty of the
press may be affected, recourse has been had to the power of taxation. It is
said that duties may be laid upon the publications so high as to amount to a
prohibition. I know not by what logic it could be maintained, that the
declarations in the State constitutions, in favor of the freedom of the press,
would be a constitutional impediment to the imposition of duties upon
publications by the State legislatures. It cannot certainly be pretended that
any degree of duties, however low, would be an abridgment of the liberty of the
press. We know that newspapers are taxed in Great Britain, and yet it is
notorious that the press nowhere enjoys greater liberty than in that country.
And if duties of any kind may be laid without a violation of that liberty, it
is evident that the extent must depend on legislative discretion, respecting
the liberty of the press, will give it no greater security than it will have
without them. The same invasions of it may be effected under the State
constitutions which contain those declarations through the means of taxation,
as under the proposed Constitution, which has nothing of the kind. It would be
quite as significant to declare that government ought to be free, that taxes
ought not to be excessive, etc., as that the liberty of the press ought not to
be restrained.
</p>

<p class="footnote">
<a id="fn84.4"></a> <a href="#fnref84.4">[4]</a>
<i>Vide</i> Rutherford’s Institutes, Vol. 2, Book II, Chapter X, Sections XIV
and XV. <i>Vide</i> also Grotius, Book II, Chapter IX, Sections VIII and IX.
</p>

</div><!--end chapter-->

<div class="chapter">

<h2><a id="chap85"></a>THE FEDERALIST.<br>
No. LXXXV.</h2>

<p class="center">
Concluding Remarks
</p>

<p class="center">
From MCLEAN’s Edition, New York.
</p>

<p class="center">
HAMILTON
</p>

<p class="letter">
To the People of the State of New York:
</p>

<p>
According to the formal division of the subject of these papers, announced in
my first number, there would appear still to remain for discussion two points:
“the analogy of the proposed government to your own State constitution,” and
“the additional security which its adoption will afford to republican
government, to liberty, and to property.” But these heads have been so fully
anticipated and exhausted in the progress of the work, that it would now
scarcely be possible to do any thing more than repeat, in a more dilated form,
what has been heretofore said, which the advanced stage of the question, and
the time already spent upon it, conspire to forbid.
</p>

<p>
It is remarkable, that the resemblance of the plan of the convention to the act
which organizes the government of this State holds, not less with regard to
many of the supposed defects, than to the real excellences of the former. Among
the pretended defects are the re-eligibility of the Executive, the want of a
council, the omission of a formal bill of rights, the omission of a provision
respecting the liberty of the press. These and several others which have been
noted in the course of our inquiries are as much chargeable on the existing
constitution of this State, as on the one proposed for the Union; and a man
must have slender pretensions to consistency, who can rail at the latter for
imperfections which he finds no difficulty in excusing in the former. Nor
indeed can there be a better proof of the insincerity and affectation of some
of the zealous adversaries of the plan of the convention among us, who profess
to be the devoted admirers of the government under which they live, than the
fury with which they have attacked that plan, for matters in regard to which
our own constitution is equally or perhaps more vulnerable.
</p>

<p>
The additional securities to republican government, to liberty and to property,
to be derived from the adoption of the plan under consideration, consist
chiefly in the restraints which the preservation of the Union will impose on
local factions and insurrections, and on the ambition of powerful individuals
in single States, who may acquire credit and influence enough, from leaders and
favorites, to become the despots of the people; in the diminution of the
opportunities to foreign intrigue, which the dissolution of the Confederacy
would invite and facilitate; in the prevention of extensive military
establishments, which could not fail to grow out of wars between the States in
a disunited situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of titles of
nobility; and in the precautions against the repetition of those practices on
the part of the State governments which have undermined the foundations of
property and credit, have planted mutual distrust in the breasts of all classes
of citizens, and have occasioned an almost universal prostration of morals.
</p>

<p>
Thus have I, fellow-citizens, executed the task I had assigned to myself; with
what success, your conduct must determine. I trust at least you will admit that
I have not failed in the assurance I gave you respecting the spirit with which
my endeavors should be conducted. I have addressed myself purely to your
judgments, and have studiously avoided those asperities which are too apt to
disgrace political disputants of all parties, and which have been not a little
provoked by the language and conduct of the opponents of the Constitution. The
charge of a conspiracy against the liberties of the people, which has been
indiscriminately brought against the advocates of the plan, has something in it
too wanton and too malignant, not to excite the indignation of every man who
feels in his own bosom a refutation of the calumny. The perpetual changes which
have been rung upon the wealthy, the well-born, and the great, have been such
as to inspire the disgust of all sensible men. And the unwarrantable
concealments and misrepresentations which have been in various ways practiced
to keep the truth from the public eye, have been of a nature to demand the
reprobation of all honest men. It is not impossible that these circumstances
may have occasionally betrayed me into intemperances of expression which I did
not intend; it is certain that I have frequently felt a struggle between
sensibility and moderation; and if the former has in some instances prevailed,
it must be my excuse that it has been neither often nor much.
</p>

<p>
Let us now pause and ask ourselves whether, in the course of these papers, the
proposed Constitution has not been satisfactorily vindicated from the
aspersions thrown upon it; and whether it has not been shown to be worthy of
the public approbation, and necessary to the public safety and prosperity.
Every man is bound to answer these questions to himself, according to the best
of his conscience and understanding, and to act agreeably to the genuine and
sober dictates of his judgment. This is a duty from which nothing can give him
a dispensation. ’T is one that he is called upon, nay, constrained by all the
obligations that form the bands of society, to discharge sincerely and
honestly. No partial motive, no particular interest, no pride of opinion, no
temporary passion or prejudice, will justify to himself, to his country, or to
his posterity, an improper election of the part he is to act. Let him beware of
an obstinate adherence to party; let him reflect that the object upon which he
is to decide is not a particular interest of the community, but the very
existence of the nation; and let him remember that a majority of America has
already given its sanction to the plan which he is to approve or reject.
</p>

<p>
I shall not dissemble that I feel an entire confidence in the arguments which
recommend the proposed system to your adoption, and that I am unable to discern
any real force in those by which it has been opposed. I am persuaded that it is
the best which our political situation, habits, and opinions will admit, and
superior to any the revolution has produced.
</p>

<p>
Concessions on the part of the friends of the plan, that it has not a claim to
absolute perfection, have afforded matter of no small triumph to its enemies.
“Why,” say they, “should we adopt an imperfect thing? Why not amend it and make
it perfect before it is irrevocably established?” This may be plausible enough,
but it is only plausible. In the first place I remark, that the extent of these
concessions has been greatly exaggerated. They have been stated as amounting to
an admission that the plan is radically defective, and that without material
alterations the rights and the interests of the community cannot be safely
confided to it. This, as far as I have understood the meaning of those who make
the concessions, is an entire perversion of their sense. No advocate of the
measure can be found, who will not declare as his sentiment, that the system,
though it may not be perfect in every part, is, upon the whole, a good one; is
the best that the present views and circumstances of the country will permit;
and is such an one as promises every species of security which a reasonable
people can desire.
</p>

<p>
I answer in the next place, that I should esteem it the extreme of imprudence
to prolong the precarious state of our national affairs, and to expose the
Union to the jeopardy of successive experiments, in the chimerical pursuit of a
perfect plan. I never expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices, as of the good sense and
wisdom, of the individuals of whom they are composed. The compacts which are to
embrace thirteen distinct States in a common bond of amity and union, must as
necessarily be a compromise of as many dissimilar interests and inclinations.
How can perfection spring from such materials?
</p>

<p>
The reasons assigned in an excellent little pamphlet lately published in this
city<a href="#fn85.1" id="fnref85.1"><sup>[1]</sup></a> are unanswerable to
show the utter improbability of assembling a new convention, under
circumstances in any degree so favorable to a happy issue, as those in which
the late convention met, deliberated, and concluded. I will not repeat the
arguments there used, as I presume the production itself has had an extensive
circulation. It is certainly well worthy the perusal of every friend to his
country. There is, however, one point of light in which the subject of
amendments still remains to be considered, and in which it has not yet been
exhibited to public view. I cannot resolve to conclude without first taking a
survey of it in this aspect.
</p>

<p>
It appears to me susceptible of absolute demonstration, that it will be far
more easy to obtain subsequent than previous amendments to the Constitution.
The moment an alteration is made in the present plan, it becomes, to the
purpose of adoption, a new one, and must undergo a new decision of each State.
To its complete establishment throughout the Union, it will therefore require
the concurrence of thirteen States. If, on the contrary, the Constitution
proposed should once be ratified by all the States as it stands, alterations in
it may at any time be effected by nine States. Here, then, the chances are as
thirteen to nine<a href="#fn85.2" id="fnref85.2"><sup>[2]</sup></a> in favor
of subsequent amendment, rather than of the original adoption of an entire
system.
</p>

<p>
This is not all. Every Constitution for the United States must inevitably
consist of a great variety of particulars, in which thirteen independent States
are to be accommodated in their interests or opinions of interest. We may of
course expect to see, in any body of men charged with its original formation,
very different combinations of the parts upon different points. Many of those
who form a majority on one question, may become the minority on a second, and
an association dissimilar to either may constitute the majority on a third.
Hence the necessity of moulding and arranging all the particulars which are to
compose the whole, in such a manner as to satisfy all the parties to the
compact; and hence, also, an immense multiplication of difficulties and
casualties in obtaining the collective assent to a final act. The degree of
that multiplication must evidently be in a ratio to the number of particulars
and the number of parties.
</p>

<p>
But every amendment to the Constitution, if once established, would be a single
proposition, and might be brought forward singly. There would then be no
necessity for management or compromise, in relation to any other point no
giving nor taking. The will of the requisite number would at once bring the
matter to a decisive issue. And consequently, whenever nine, or rather ten
States, were united in the desire of a particular amendment, that amendment
must infallibly take place. There can, therefore, be no comparison between the
facility of affecting an amendment, and that of establishing in the first
instance a complete Constitution.
</p>

<p>
In opposition to the probability of subsequent amendments, it has been urged
that the persons delegated to the administration of the national government
will always be disinclined to yield up any portion of the authority of which
they were once possessed. For my own part I acknowledge a thorough conviction
that any amendments which may, upon mature consideration, be thought useful,
will be applicable to the organization of the government, not to the mass of
its powers; and on this account alone, I think there is no weight in the
observation just stated. I also think there is little weight in it on another
account. The intrinsic difficulty of governing thirteen States at any rate,
independent of calculations upon an ordinary degree of public spirit and
integrity, will, in my opinion constantly impose on the national rulers the
necessity of a spirit of accommodation to the reasonable expectations of their
constituents. But there is yet a further consideration, which proves beyond the
possibility of a doubt, that the observation is futile. It is this that the
national rulers, whenever nine States concur, will have no option upon the
subject. By the fifth article of the plan, the Congress will be obliged “on the
application of the legislatures of two thirds of the States, which at present
amount to nine, to call a convention for proposing amendments, which shall be
valid, to all intents and purposes, as part of the Constitution, when ratified
by the legislatures of three fourths of the States, or by conventions in three
fourths thereof.” The words of this article are peremptory. The Congress “shall
call a convention.” Nothing in this particular is left to the discretion of
that body. And of consequence, all the declamation about the disinclination to
a change vanishes in air. Nor however difficult it may be supposed to unite two
thirds or three fourths of the State legislatures, in amendments which may
affect local interests, can there be any room to apprehend any such difficulty
in a union on points which are merely relative to the general liberty or
security of the people. We may safely rely on the disposition of the State
legislatures to erect barriers against the encroachments of the national
authority.
</p>

<p>
If the foregoing argument is a fallacy, certain it is that I am myself deceived
by it, for it is, in my conception, one of those rare instances in which a
political truth can be brought to the test of a mathematical demonstration.
Those who see the matter in the same light with me, however zealous they may be
for amendments, must agree in the propriety of a previous adoption, as the most
direct road to their own object.
</p>

<p>
The zeal for attempts to amend, prior to the establishment of the Constitution,
must abate in every man who is ready to accede to the truth of the following
observations of a writer equally solid and ingenious: “To balance a large state
or society 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.”<a
href="#fn85.3" id="fnref85.3"><sup>[3]</sup></a> These judicious reflections
contain a lesson of moderation to all the sincere lovers of the Union, and
ought to put them upon their guard against hazarding anarchy, civil war, a
perpetual alienation of the States from each other, and perhaps the military
despotism of a victorious demagogue, in the pursuit of what they are not likely
to obtain, but from time and experience. It may be in me a defect of political
fortitude, but I acknowledge that I cannot entertain an equal tranquillity with
those who affect to treat the dangers of a longer continuance in our present
situation as imaginary. A nation, without a national government, is, in my
view, an awful spectacle. The establishment of a Constitution, in time of
profound peace, by the voluntary consent of a whole people, is a prodigy, to
the completion of which I look forward with trembling anxiety. I can reconcile
it to no rules of prudence to let go the hold we now have, in so arduous an
enterprise, upon seven out of the thirteen States, and after having passed over
so considerable a part of the ground, to recommence the course. I dread the
more the consequences of new attempts, because I know that powerful
individuals, in this and in other States, are enemies to a general national
government in every possible shape.
</p>

<p class="letter">
PUBLIUS.
</p>

<p class="footnote">
<a id="fn85.1"></a> <a href="#fnref85.1">[1]</a>
Entitled “An Address to the People of the State of New York.”
</p>

<p class="footnote">
<a id="fn85.2"></a> <a href="#fnref85.2">[2]</a>
It may rather be said TEN, for though two thirds may set on foot the measure,
three fourths must ratify.
</p>

<p class="footnote">
<a id="fn85.3"></a> <a href="#fnref85.3">[3]</a>
Hume’s <i>Essays</i>, vol. i., page 128: “The Rise of Arts and Sciences.”
</p>

</div><!--end chapter-->

<h2>Transcriber's Notes:</h2>

<p>New original cover art included with this eBook is granted to the public domain.</p>

<div>*** END OF THE PROJECT GUTENBERG EBOOK 18 ***</div>
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