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+ This is the Project Gutenberg 1.5 release of
+ The Federalist Papers
+
+
+
+
+
+
+FEDERALIST. No. 1
+
+General Introduction
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+AFTER an unequivocal experience of the inefficacy of the
+ subsisting federal government, you are called upon to deliberate on
+ a new Constitution for the United States of America. The subject
+ speaks its own importance; comprehending in its consequences
+ nothing less than the existence of the UNION, the safety and welfare
+ of the parts of which it is composed, the fate of an empire in many
+ respects the most interesting in the world. It has been frequently
+ remarked that it seems to have been reserved to the people of this
+ country, by their conduct and example, to decide the important
+ question, whether societies of men are really capable or not of
+ establishing good government from reflection and choice, or whether
+ they are forever destined to depend for their political
+ constitutions on accident and force. If there be any truth in the
+ remark, the crisis at which we are arrived may with propriety be
+ regarded as the era in which that decision is to be made; and a
+ wrong election of the part we shall act may, in this view, deserve
+ to be considered as the general misfortune of mankind.
+This idea will add the inducements of philanthropy to those of
+ patriotism, to heighten the solicitude which all considerate and
+ good men must feel for the event. Happy will it be if our choice
+ should be directed by a judicious estimate of our true interests,
+ unperplexed and unbiased by considerations not connected with the
+ public good. But this is a thing more ardently to be wished than
+ seriously to be expected. The plan offered to our deliberations
+ affects too many particular interests, innovates upon too many local
+ institutions, not to involve in its discussion a variety of objects
+ foreign to its merits, and of views, passions and prejudices little
+ favorable to the discovery of truth.
+Among the most formidable of the obstacles which the new
+ Constitution will have to encounter may readily be distinguished the
+ obvious interest of a certain class of men in every State to resist
+ all changes which may hazard a diminution of the power, emolument,
+ and consequence of the offices they hold under the State
+ establishments; and the perverted ambition of another class of men,
+ who will either hope to aggrandize themselves by the confusions of
+ their country, or will flatter themselves with fairer prospects of
+ elevation from the subdivision of the empire into several partial
+ confederacies than from its union under one government.
+It is not, however, my design to dwell upon observations of this
+ nature. I am well aware that it would be disingenuous to resolve
+ indiscriminately the opposition of any set of men (merely because
+ their situations might subject them to suspicion) into interested or
+ ambitious views. Candor will oblige us to admit that even such men
+ may be actuated by upright intentions; and it cannot be doubted
+ that much of the opposition which has made its appearance, or may
+ hereafter make its appearance, will spring from sources, blameless
+ at least, if not respectable--the honest errors of minds led astray
+ by preconceived jealousies and fears. So numerous indeed and so
+ powerful are the causes which serve to give a false bias to the
+ judgment, that we, upon many occasions, see wise and good men on the
+ wrong as well as on the right side of questions of the first
+ magnitude to society. This circumstance, if duly attended to, would
+ furnish a lesson of moderation to those who are ever so much
+ persuaded of their being in the right in any controversy. And a
+ further reason for caution, in this respect, might be drawn from the
+ reflection that we are not always sure that those who advocate the
+ truth are influenced by purer principles than their antagonists.
+ Ambition, avarice, personal animosity, party opposition, and many
+ other motives not more laudable than these, are apt to operate as
+ well upon those who support as those who oppose the right side of a
+ question. Were there not even these inducements to moderation,
+ nothing could be more ill-judged than that intolerant spirit which
+ has, at all times, characterized political parties. For in
+ politics, as in religion, it is equally absurd to aim at making
+ proselytes by fire and sword. Heresies in either can rarely be
+ cured by persecution.
+And yet, however just these sentiments will be allowed to be, we
+ have already sufficient indications that it will happen in this as
+ in all former cases of great national discussion. A torrent of
+ angry and malignant passions will be let loose. To judge from the
+ conduct of the opposite parties, we shall be led to conclude that
+ they will mutually hope to evince the justness of their opinions,
+ and to increase the number of their converts by the loudness of
+ their declamations and the bitterness of their invectives. An
+ enlightened zeal for the energy and efficiency of government will be
+ stigmatized as the offspring of a temper fond of despotic power and
+ hostile to the principles of liberty. An over-scrupulous jealousy
+ of danger to the rights of the people, which is more commonly the
+ fault of the head than of the heart, will be represented as mere
+ pretense and artifice, the stale bait for popularity at the expense
+ of the public good. It will be forgotten, on the one hand, that
+ jealousy is the usual concomitant of love, and that the noble
+ enthusiasm of liberty is apt to be infected with a spirit of narrow
+ and illiberal distrust. On the other hand, it will be equally
+ forgotten that the vigor of government is essential to the security
+ of liberty; that, in the contemplation of a sound and well-informed
+ judgment, their interest can never be separated; and that a
+ dangerous ambition more often lurks behind the specious mask of zeal
+ for the rights of the people than under the forbidden appearance of
+ zeal for the firmness and efficiency of government. History will
+ teach us that the former has been found a much more certain road to
+ the introduction of despotism than the latter, and that of those men
+ who have overturned the liberties of republics, the greatest number
+ have begun their career by paying an obsequious court to the people;
+ commencing demagogues, and ending tyrants.
+In the course of the preceding observations, I have had an eye,
+ my fellow-citizens, to putting you upon your guard against all
+ attempts, from whatever quarter, to influence your decision in a
+ matter of the utmost moment to your welfare, by any impressions
+ other than those which may result from the evidence of truth. You
+ will, no doubt, at the same time, have collected from the general
+ scope of them, that they proceed from a source not unfriendly to the
+ new Constitution. Yes, my countrymen, I own to you that, after
+ having given it an attentive consideration, I am clearly of opinion
+ it is your interest to adopt it. I am convinced that this is the
+ safest course for your liberty, your dignity, and your happiness. I
+ affect not reserves which I do not feel. I will not amuse you with
+ an appearance of deliberation when I have decided. I frankly
+ acknowledge to you my convictions, and I will freely lay before you
+ the reasons on which they are founded. The consciousness of good
+ intentions disdains ambiguity. I shall not, however, multiply
+ professions on this head. My motives must remain in the depository
+ of my own breast. My arguments will be open to all, and may be
+ judged of by all. They shall at least be offered in a spirit which
+ will not disgrace the cause of truth.
+I propose, in a series of papers, to discuss the following
+ interesting particulars:
+THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY
+THE INSUFFICIENCY OF THE PRESENT CONFEDERATION
+ TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST
+ EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS
+ OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE
+ PRINCIPLES OF REPUBLICAN GOVERNMENT
+ ITS ANALOGY TO YOUR OWN STATE CONSTITUTION
+ and lastly, THE ADDITIONAL SECURITY WHICH ITS
+ ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF
+ GOVERNMENT, TO LIBERTY, AND TO PROPERTY.
+In the progress of this discussion I shall endeavor to give a
+ satisfactory answer to all the objections which shall have made
+ their appearance, that may seem to have any claim to your attention.
+It may perhaps be thought superfluous to offer arguments to
+ prove the utility of the UNION, a point, no doubt, deeply engraved
+ on the hearts of the great body of the people in every State, and
+ one, which it may be imagined, has no adversaries. But the fact is,
+ that we already hear it whispered in the private circles of those
+ who oppose the new Constitution, that the thirteen States are of too
+ great extent for any general system, and that we must of necessity
+ resort to separate confederacies of distinct portions of the
+ whole.1 This doctrine will, in all probability, be gradually
+ propagated, till it has votaries enough to countenance an open
+ avowal of it. For nothing can be more evident, to those who are
+ able to take an enlarged view of the subject, than the alternative
+ of an adoption of the new Constitution or a dismemberment of the
+ Union. It will therefore be of use to begin by examining the
+ advantages of that Union, the certain evils, and the probable
+ dangers, to which every State will be exposed from its dissolution.
+ This shall accordingly constitute the subject of my next address.
+ PUBLIUS.
+1 The same idea, tracing the arguments to their consequences, is
+ held out in several of the late publications against the new
+ Constitution.
+
+
+
+FEDERALIST No. 2
+
+Concerning Dangers from Foreign Force and Influence
+For the Independent Journal.
+
+JAY
+
+To the People of the State of New York:
+WHEN the people of America reflect that they are now called upon
+ to decide a question, which, in its consequences, must prove one of
+ the most important that ever engaged their attention, the propriety
+ of their taking a very comprehensive, as well as a very serious,
+ view of it, will be evident.
+Nothing is more certain than the indispensable necessity of
+ government, and it is equally undeniable, that whenever and however
+ it is instituted, the people must cede to it some of their natural
+ rights in order to vest it with requisite powers. It is well worthy
+ of consideration therefore, whether it would conduce more to the
+ interest of the people of America that they should, to all general
+ purposes, be one nation, under one federal government, or that they
+ should divide themselves into separate confederacies, and give to
+ the head of each the same kind of powers which they are advised to
+ place in one national government.
+It has until lately been a received and uncontradicted opinion
+ that the prosperity of the people of America depended on their
+ continuing firmly united, and the wishes, prayers, and efforts of
+ our best and wisest citizens have been constantly directed to that
+ object. But politicians now appear, who insist that this opinion is
+ erroneous, and that instead of looking for safety and happiness in
+ union, we ought to seek it in a division of the States into distinct
+ confederacies or sovereignties. However extraordinary this new
+ doctrine may appear, it nevertheless has its advocates; and certain
+ characters who were much opposed to it formerly, are at present of
+ the number. Whatever may be the arguments or inducements which have
+ wrought this change in the sentiments and declarations of these
+ gentlemen, it certainly would not be wise in the people at large to
+ adopt these new political tenets without being fully convinced that
+ they are founded in truth and sound policy.
+It has often given me pleasure to observe that independent
+ America was not composed of detached and distant territories, but
+ that one connected, fertile, widespreading country was the portion
+ of our western sons of liberty. Providence has in a particular
+ manner blessed it with a variety of soils and productions, and
+ watered it with innumerable streams, for the delight and
+ accommodation of its inhabitants. A succession of navigable waters
+ forms a kind of chain round its borders, as if to bind it together;
+ while the most noble rivers in the world, running at convenient
+ distances, present them with highways for the easy communication of
+ friendly aids, and the mutual transportation and exchange of their
+ various commodities.
+With equal pleasure I have as often taken notice that Providence
+ has been pleased to give this one connected country to one united
+ people--a people descended from the same ancestors, speaking the same
+ language, professing the same religion, attached to the same
+ principles of government, very similar in their manners and customs,
+ and who, by their joint counsels, arms, and efforts, fighting side
+ by side throughout a long and bloody war, have nobly established
+ general liberty and independence.
+This country and this people seem to have been made for each
+ other, and it appears as if it was the design of Providence, that an
+ inheritance so proper and convenient for a band of brethren, united
+ to each other by the strongest ties, should never be split into a
+ number of unsocial, jealous, and alien sovereignties.
+Similar sentiments have hitherto prevailed among all orders and
+ denominations of men among us. To all general purposes we have
+ uniformly been one people each individual citizen everywhere
+ enjoying the same national rights, privileges, and protection. As a
+ nation we have made peace and war; as a nation we have vanquished
+ our common enemies; as a nation we have formed alliances, and made
+ treaties, and entered into various compacts and conventions with
+ foreign states.
+A strong sense of the value and blessings of union induced the
+ people, at a very early period, to institute a federal government to
+ preserve and perpetuate it. They formed it almost as soon as they
+ had a political existence; nay, at a time when their habitations
+ were in flames, when many of their citizens were bleeding, and when
+ the progress of hostility and desolation left little room for those
+ calm and mature inquiries and reflections which must ever precede
+ the formation of a wise and wellbalanced government for a free
+ people. It is not to be wondered at, that a government instituted
+ in times so inauspicious, should on experiment be found greatly
+ deficient and inadequate to the purpose it was intended to answer.
+This intelligent people perceived and regretted these defects.
+ Still continuing no less attached to union than enamored of
+ liberty, they observed the danger which immediately threatened the
+ former and more remotely the latter; and being pursuaded that ample
+ security for both could only be found in a national government more
+ wisely framed, they as with one voice, convened the late convention
+ at Philadelphia, to take that important subject under consideration.
+This convention composed of men who possessed the confidence of
+ the people, and many of whom had become highly distinguished by
+ their patriotism, virtue and wisdom, in times which tried the minds
+ and hearts of men, undertook the arduous task. In the mild season
+ of peace, with minds unoccupied by other subjects, they passed many
+ months in cool, uninterrupted, and daily consultation; and finally,
+ without having been awed by power, or influenced by any passions
+ except love for their country, they presented and recommended to the
+ people the plan produced by their joint and very unanimous councils.
+Admit, for so is the fact, that this plan is only RECOMMENDED,
+ not imposed, yet let it be remembered that it is neither recommended
+ to BLIND approbation, nor to BLIND reprobation; but to that sedate
+ and candid consideration which the magnitude and importance of the
+ subject demand, and which it certainly ought to receive. But this
+ (as was remarked in the foregoing number of this paper) is more to
+ be wished than expected, that it may be so considered and examined.
+ Experience on a former occasion teaches us not to be too sanguine
+ in such hopes. It is not yet forgotten that well-grounded
+ apprehensions of imminent danger induced the people of America to
+ form the memorable Congress of 1774. That body recommended certain
+ measures to their constituents, and the event proved their wisdom;
+ yet it is fresh in our memories how soon the press began to teem
+ with pamphlets and weekly papers against those very measures. Not
+ only many of the officers of government, who obeyed the dictates of
+ personal interest, but others, from a mistaken estimate of
+ consequences, or the undue influence of former attachments, or whose
+ ambition aimed at objects which did not correspond with the public
+ good, were indefatigable in their efforts to pursuade the people to
+ reject the advice of that patriotic Congress. Many, indeed, were
+ deceived and deluded, but the great majority of the people reasoned
+ and decided judiciously; and happy they are in reflecting that they
+ did so.
+They considered that the Congress was composed of many wise and
+ experienced men. That, being convened from different parts of the
+ country, they brought with them and communicated to each other a
+ variety of useful information. That, in the course of the time they
+ passed together in inquiring into and discussing the true interests
+ of their country, they must have acquired very accurate knowledge on
+ that head. That they were individually interested in the public
+ liberty and prosperity, and therefore that it was not less their
+ inclination than their duty to recommend only such measures as,
+ after the most mature deliberation, they really thought prudent and
+ advisable.
+These and similar considerations then induced the people to rely
+ greatly on the judgment and integrity of the Congress; and they
+ took their advice, notwithstanding the various arts and endeavors
+ used to deter them from it. But if the people at large had reason
+ to confide in the men of that Congress, few of whom had been fully
+ tried or generally known, still greater reason have they now to
+ respect the judgment and advice of the convention, for it is well
+ known that some of the most distinguished members of that Congress,
+ who have been since tried and justly approved for patriotism and
+ abilities, and who have grown old in acquiring political
+ information, were also members of this convention, and carried into
+ it their accumulated knowledge and experience.
+It is worthy of remark that not only the first, but every
+ succeeding Congress, as well as the late convention, have invariably
+ joined with the people in thinking that the prosperity of America
+ depended on its Union. To preserve and perpetuate it was the great
+ object of the people in forming that convention, and it is also the
+ great object of the plan which the convention has advised them to
+ adopt. With what propriety, therefore, or for what good purposes,
+ are attempts at this particular period made by some men to
+ depreciate the importance of the Union? Or why is it suggested that
+ three or four confederacies would be better than one? I am
+ persuaded in my own mind that the people have always thought right
+ on this subject, and that their universal and uniform attachment to
+ the cause of the Union rests on great and weighty reasons, which I
+ shall endeavor to develop and explain in some ensuing papers. They
+ who promote the idea of substituting a number of distinct
+ confederacies in the room of the plan of the convention, seem
+ clearly to foresee that the rejection of it would put the
+ continuance of the Union in the utmost jeopardy. That certainly
+ would be the case, and I sincerely wish that it may be as clearly
+ foreseen by every good citizen, that whenever the dissolution of the
+ Union arrives, America will have reason to exclaim, in the words of
+ the poet: ``FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.''
+PUBLIUS.
+
+
+FEDERALIST No. 3
+
+The Same Subject Continued
+(Concerning Dangers From Foreign Force and Influence)
+For the Independent Journal.
+
+JAY
+
+To the People of the State of New York:
+IT IS not a new observation that the people of any country (if,
+ like the Americans, intelligent and wellinformed) seldom adopt and
+ steadily persevere for many years in an erroneous opinion respecting
+ their interests. That consideration naturally tends to create great
+ respect for the high opinion which the people of America have so
+ long and uniformly entertained of the importance of their continuing
+ firmly united under one federal government, vested with sufficient
+ powers for all general and national purposes.
+The more attentively I consider and investigate the reasons
+ which appear to have given birth to this opinion, the more I become
+ convinced that they are cogent and conclusive.
+Among the many objects to which a wise and free people find it
+ necessary to direct their attention, that of providing for their
+ SAFETY seems to be the first. The SAFETY of the people doubtless
+ has relation to a great variety of circumstances and considerations,
+ and consequently affords great latitude to those who wish to define
+ it precisely and comprehensively.
+At present I mean only to consider it as it respects security
+ for the preservation of peace and tranquillity, as well as against
+ dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE
+ KIND arising from domestic causes. As the former of these comes
+ first in order, it is proper it should be the first discussed. Let
+ us therefore proceed to examine whether the people are not right in
+ their opinion that a cordial Union, under an efficient national
+ government, affords them the best security that can be devised
+ against HOSTILITIES from abroad.
+The number of wars which have happened or will happen in the
+ world will always be found to be in proportion to the number and
+ weight of the causes, whether REAL or PRETENDED, which PROVOKE or
+ INVITE them. If this remark be just, it becomes useful to inquire
+ whether so many JUST causes of war are likely to be given by UNITED
+ AMERICA as by DISUNITED America; for if it should turn out that
+ United America will probably give the fewest, then it will follow
+ that in this respect the Union tends most to preserve the people in
+ a state of peace with other nations.
+The JUST causes of war, for the most part, arise either from
+ violation of treaties or from direct violence. America has already
+ formed treaties with no less than six foreign nations, and all of
+ them, except Prussia, are maritime, and therefore able to annoy and
+ injure us. She has also extensive commerce with Portugal, Spain,
+ and Britain, and, with respect to the two latter, has, in addition,
+ the circumstance of neighborhood to attend to.
+It is of high importance to the peace of America that she
+ observe the laws of nations towards all these powers, and to me it
+ appears evident that this will be more perfectly and punctually done
+ by one national government than it could be either by thirteen
+ separate States or by three or four distinct confederacies.
+Because when once an efficient national government is
+ established, the best men in the country will not only consent to
+ serve, but also will generally be appointed to manage it; for,
+ although town or country, or other contracted influence, may place
+ men in State assemblies, or senates, or courts of justice, or
+ executive departments, yet more general and extensive reputation for
+ talents and other qualifications will be necessary to recommend men
+ to offices under the national government,--especially as it will have
+ the widest field for choice, and never experience that want of
+ proper persons which is not uncommon in some of the States. Hence,
+ it will result that the administration, the political counsels, and
+ the judicial decisions of the national government will be more wise,
+ systematical, and judicious than those of individual States, and
+ consequently more satisfactory with respect to other nations, as
+ well as more SAFE with respect to us.
+Because, under the national government, treaties and articles of
+ treaties, as well as the laws of nations, will always be expounded
+ in one sense and executed in the same manner,--whereas, adjudications
+ on the same points and questions, in thirteen States, or in three or
+ four confederacies, will not always accord or be consistent; and
+ that, as well from the variety of independent courts and judges
+ appointed by different and independent governments, as from the
+ different local laws and interests which may affect and influence
+ them. The wisdom of the convention, in committing such questions to
+ the jurisdiction and judgment of courts appointed by and responsible
+ only to one national government, cannot be too much commended.
+Because the prospect of present loss or advantage may often
+ tempt the governing party in one or two States to swerve from good
+ faith and justice; but those temptations, not reaching the other
+ States, and consequently having little or no influence on the
+ national government, the temptation will be fruitless, and good
+ faith and justice be preserved. The case of the treaty of peace
+ with Britain adds great weight to this reasoning.
+Because, even if the governing party in a State should be
+ disposed to resist such temptations, yet as such temptations may,
+ and commonly do, result from circumstances peculiar to the State,
+ and may affect a great number of the inhabitants, the governing
+ party may not always be able, if willing, to prevent the injustice
+ meditated, or to punish the aggressors. But the national
+ government, not being affected by those local circumstances, will
+ neither be induced to commit the wrong themselves, nor want power or
+ inclination to prevent or punish its commission by others.
+So far, therefore, as either designed or accidental violations
+ of treaties and the laws of nations afford JUST causes of war, they
+ are less to be apprehended under one general government than under
+ several lesser ones, and in that respect the former most favors the
+ SAFETY of the people.
+As to those just causes of war which proceed from direct and
+ unlawful violence, it appears equally clear to me that one good
+ national government affords vastly more security against dangers of
+ that sort than can be derived from any other quarter.
+Because such violences are more frequently caused by the
+ passions and interests of a part than of the whole; of one or two
+ States than of the Union. Not a single Indian war has yet been
+ occasioned by aggressions of the present federal government, feeble
+ as it is; but there are several instances of Indian hostilities
+ having been provoked by the improper conduct of individual States,
+ who, either unable or unwilling to restrain or punish offenses, have
+ given occasion to the slaughter of many innocent inhabitants.
+The neighborhood of Spanish and British territories, bordering
+ on some States and not on others, naturally confines the causes of
+ quarrel more immediately to the borderers. The bordering States, if
+ any, will be those who, under the impulse of sudden irritation, and
+ a quick sense of apparent interest or injury, will be most likely,
+ by direct violence, to excite war with these nations; and nothing
+ can so effectually obviate that danger as a national government,
+ whose wisdom and prudence will not be diminished by the passions
+ which actuate the parties immediately interested.
+But not only fewer just causes of war will be given by the
+ national government, but it will also be more in their power to
+ accommodate and settle them amicably. They will be more temperate
+ and cool, and in that respect, as well as in others, will be more in
+ capacity to act advisedly than the offending State. The pride of
+ states, as well as of men, naturally disposes them to justify all
+ their actions, and opposes their acknowledging, correcting, or
+ repairing their errors and offenses. The national government, in
+ such cases, will not be affected by this pride, but will proceed
+ with moderation and candor to consider and decide on the means most
+ proper to extricate them from the difficulties which threaten them.
+Besides, it is well known that acknowledgments, explanations,
+ and compensations are often accepted as satisfactory from a strong
+ united nation, which would be rejected as unsatisfactory if offered
+ by a State or confederacy of little consideration or power.
+In the year 1685, the state of Genoa having offended Louis XIV.,
+ endeavored to appease him. He demanded that they should send their
+ Doge, or chief magistrate, accompanied by four of their
+ senators, to FRANCE, to ask his pardon and receive his terms. They
+ were obliged to submit to it for the sake of peace. Would he on any
+ occasion either have demanded or have received the like humiliation
+ from Spain, or Britain, or any other POWERFUL nation?
+PUBLIUS.
+
+
+FEDERALIST No. 4
+
+The Same Subject Continued
+(Concerning Dangers From Foreign Force and Influence)
+For the Independent Journal.
+
+JAY
+
+To the People of the State of New York:
+MY LAST paper assigned several reasons why the safety of the
+ people would be best secured by union against the danger it may be
+ exposed to by JUST causes of war given to other nations; and those
+ reasons show that such causes would not only be more rarely given,
+ but would also be more easily accommodated, by a national government
+ than either by the State governments or the proposed little
+ confederacies.
+But the safety of the people of America against dangers from
+ FOREIGN force depends not only on their forbearing to give JUST
+ causes of war to other nations, but also on their placing and
+ continuing themselves in such a situation as not to INVITE hostility
+ or insult; for it need not be observed that there are PRETENDED as
+ well as just causes of war.
+It is too true, however disgraceful it may be to human nature,
+ that nations in general will make war whenever they have a prospect
+ of getting anything by it; nay, absolute monarchs will often make
+ war when their nations are to get nothing by it, but for the
+ purposes and objects merely personal, such as thirst for military
+ glory, revenge for personal affronts, ambition, or private compacts
+ to aggrandize or support their particular families or partisans.
+ These and a variety of other motives, which affect only the mind of
+ the sovereign, often lead him to engage in wars not sanctified by
+ justice or the voice and interests of his people. But, independent
+ of these inducements to war, which are more prevalent in absolute
+ monarchies, but which well deserve our attention, there are others
+ which affect nations as often as kings; and some of them will on
+ examination be found to grow out of our relative situation and
+ circumstances.
+With France and with Britain we are rivals in the fisheries, and
+ can supply their markets cheaper than they can themselves,
+ notwithstanding any efforts to prevent it by bounties on their own
+ or duties on foreign fish.
+With them and with most other European nations we are rivals in
+ navigation and the carrying trade; and we shall deceive ourselves
+ if we suppose that any of them will rejoice to see it flourish;
+ for, as our carrying trade cannot increase without in some degree
+ diminishing theirs, it is more their interest, and will be more
+ their policy, to restrain than to promote it.
+In the trade to China and India, we interfere with more than one
+ nation, inasmuch as it enables us to partake in advantages which
+ they had in a manner monopolized, and as we thereby supply ourselves
+ with commodities which we used to purchase from them.
+The extension of our own commerce in our own vessels cannot give
+ pleasure to any nations who possess territories on or near this
+ continent, because the cheapness and excellence of our productions,
+ added to the circumstance of vicinity, and the enterprise and
+ address of our merchants and navigators, will give us a greater
+ share in the advantages which those territories afford, than
+ consists with the wishes or policy of their respective sovereigns.
+Spain thinks it convenient to shut the Mississippi against us on
+ the one side, and Britain excludes us from the Saint Lawrence on the
+ other; nor will either of them permit the other waters which are
+ between them and us to become the means of mutual intercourse and
+ traffic.
+From these and such like considerations, which might, if
+ consistent with prudence, be more amplified and detailed, it is easy
+ to see that jealousies and uneasinesses may gradually slide into the
+ minds and cabinets of other nations, and that we are not to expect
+ that they should regard our advancement in union, in power and
+ consequence by land and by sea, with an eye of indifference and
+ composure.
+The people of America are aware that inducements to war may
+ arise out of these circumstances, as well as from others not so
+ obvious at present, and that whenever such inducements may find fit
+ time and opportunity for operation, pretenses to color and justify
+ them will not be wanting. Wisely, therefore, do they consider union
+ and a good national government as necessary to put and keep them in
+ SUCH A SITUATION as, instead of INVITING war, will tend to repress
+ and discourage it. That situation consists in the best possible
+ state of defense, and necessarily depends on the government, the
+ arms, and the resources of the country.
+As the safety of the whole is the interest of the whole, and
+ cannot be provided for without government, either one or more or
+ many, let us inquire whether one good government is not, relative to
+ the object in question, more competent than any other given number
+ whatever.
+One government can collect and avail itself of the talents and
+ experience of the ablest men, in whatever part of the Union they may
+ be found. It can move on uniform principles of policy. It can
+ harmonize, assimilate, and protect the several parts and members,
+ and extend the benefit of its foresight and precautions to each. In
+ the formation of treaties, it will regard the interest of the whole,
+ and the particular interests of the parts as connected with that of
+ the whole. It can apply the resources and power of the whole to the
+ defense of any particular part, and that more easily and
+ expeditiously than State governments or separate confederacies can
+ possibly do, for want of concert and unity of system. It can place
+ the militia under one plan of discipline, and, by putting their
+ officers in a proper line of subordination to the Chief Magistrate,
+ will, as it were, consolidate them into one corps, and thereby
+ render them more efficient than if divided into thirteen or into
+ three or four distinct independent companies.
+What would the militia of Britain be if the English militia
+ obeyed the government of England, if the Scotch militia obeyed the
+ government of Scotland, and if the Welsh militia obeyed the
+ government of Wales? Suppose an invasion; would those three
+ governments (if they agreed at all) be able, with all their
+ respective forces, to operate against the enemy so effectually as
+ the single government of Great Britain would?
+We have heard much of the fleets of Britain, and the time may
+ come, if we are wise, when the fleets of America may engage
+ attention. But if one national government, had not so regulated the
+ navigation of Britain as to make it a nursery for seamen--if one
+ national government had not called forth all the national means and
+ materials for forming fleets, their prowess and their thunder would
+ never have been celebrated. Let England have its navigation and
+ fleet--let Scotland have its navigation and fleet--let Wales have its
+ navigation and fleet--let Ireland have its navigation and fleet--let
+ those four of the constituent parts of the British empire be
+ under four independent governments, and it is easy to perceive how
+ soon they would each dwindle into comparative insignificance.
+Apply these facts to our own case. Leave America divided into
+ thirteen or, if you please, into three or four independent
+ governments--what armies could they raise and pay--what fleets could
+ they ever hope to have? If one was attacked, would the others fly
+ to its succor, and spend their blood and money in its defense?
+ Would there be no danger of their being flattered into neutrality
+ by its specious promises, or seduced by a too great fondness for
+ peace to decline hazarding their tranquillity and present safety for
+ the sake of neighbors, of whom perhaps they have been jealous, and
+ whose importance they are content to see diminished? Although such
+ conduct would not be wise, it would, nevertheless, be natural. The
+ history of the states of Greece, and of other countries, abounds
+ with such instances, and it is not improbable that what has so often
+ happened would, under similar circumstances, happen again.
+But admit that they might be willing to help the invaded State
+ or confederacy. How, and when, and in what proportion shall aids of
+ men and money be afforded? Who shall command the allied armies, and
+ from which of them shall he receive his orders? Who shall settle
+ the terms of peace, and in case of disputes what umpire shall decide
+ between them and compel acquiescence? Various difficulties and
+ inconveniences would be inseparable from such a situation; whereas
+ one government, watching over the general and common interests, and
+ combining and directing the powers and resources of the whole, would
+ be free from all these embarrassments, and conduce far more to the
+ safety of the people.
+But whatever may be our situation, whether firmly united under
+ one national government, or split into a number of confederacies,
+ certain it is, that foreign nations will know and view it exactly as
+ it is; and they will act toward us accordingly. If they see that
+ our national government is efficient and well administered, our
+ trade prudently regulated, our militia properly organized and
+ disciplined, our resources and finances discreetly managed, our
+ credit re-established, our people free, contented, and united, they
+ will be much more disposed to cultivate our friendship than provoke
+ our resentment. If, on the other hand, they find us either
+ destitute of an effectual government (each State doing right or
+ wrong, as to its rulers may seem convenient), or split into three or
+ four independent and probably discordant republics or confederacies,
+ one inclining to Britain, another to France, and a third to Spain,
+ and perhaps played off against each other by the three, what a poor,
+ pitiful figure will America make in their eyes! How liable would
+ she become not only to their contempt but to their outrage, and how
+ soon would dear-bought experience proclaim that when a people or
+ family so divide, it never fails to be against themselves.
+PUBLIUS.
+
+
+FEDERALIST No. 5
+
+The Same Subject Continued
+(Concerning Dangers From Foreign Force and Influence)
+For the Independent Journal.
+
+JAY
+
+To the People of the State of New York:
+QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch
+ Parliament, makes some observations on the importance of the UNION
+ then forming between England and Scotland, which merit our attention.
+ I shall present the public with one or two extracts from it: ``An
+ entire and perfect union will be the solid foundation of lasting
+ peace: It will secure your religion, liberty, and property; remove
+ the animosities amongst yourselves, and the jealousies and
+ differences betwixt our two kingdoms. It must increase your
+ strength, riches, and trade; and by this union the whole island,
+ being joined in affection and free from all apprehensions of
+ different interest, will be ENABLED TO RESIST ALL ITS ENEMIES.''
+ ``We most earnestly recommend to you calmness and unanimity in this
+ great and weighty affair, that the union may be brought to a happy
+ conclusion, being the only EFFECTUAL way to secure our present and
+ future happiness, and disappoint the designs of our and your
+ enemies, who will doubtless, on this occasion, USE THEIR UTMOST
+ ENDEAVORS TO PREVENT OR DELAY THIS UNION.''
+It was remarked in the preceding paper, that weakness and
+ divisions at home would invite dangers from abroad; and that
+ nothing would tend more to secure us from them than union, strength,
+ and good government within ourselves. This subject is copious and
+ cannot easily be exhausted.
+The history of Great Britain is the one with which we are in
+ general the best acquainted, and it gives us many useful lessons.
+ We may profit by their experience without paying the price which it
+ cost them. Although it seems obvious to common sense that the
+ people of such an island should be but one nation, yet we find that
+ they were for ages divided into three, and that those three were
+ almost constantly embroiled in quarrels and wars with one another.
+ Notwithstanding their true interest with respect to the continental
+ nations was really the same, yet by the arts and policy and
+ practices of those nations, their mutual jealousies were perpetually
+ kept inflamed, and for a long series of years they were far more
+ inconvenient and troublesome than they were useful and assisting to
+ each other.
+Should the people of America divide themselves into three or
+ four nations, would not the same thing happen? Would not similar
+ jealousies arise, and be in like manner cherished? Instead of their
+ being ``joined in affection'' and free from all apprehension of
+ different ``interests,'' envy and jealousy would soon extinguish
+ confidence and affection, and the partial interests of each
+ confederacy, instead of the general interests of all America, would
+ be the only objects of their policy and pursuits. Hence, like most
+ other BORDERING nations, they would always be either involved in
+ disputes and war, or live in the constant apprehension of them.
+The most sanguine advocates for three or four confederacies
+ cannot reasonably suppose that they would long remain exactly on an
+ equal footing in point of strength, even if it was possible to form
+ them so at first; but, admitting that to be practicable, yet what
+ human contrivance can secure the continuance of such equality?
+ Independent of those local circumstances which tend to beget and
+ increase power in one part and to impede its progress in another, we
+ must advert to the effects of that superior policy and good
+ management which would probably distinguish the government of one
+ above the rest, and by which their relative equality in strength and
+ consideration would be destroyed. For it cannot be presumed that
+ the same degree of sound policy, prudence, and foresight would
+ uniformly be observed by each of these confederacies for a long
+ succession of years.
+Whenever, and from whatever causes, it might happen, and happen
+ it would, that any one of these nations or confederacies should rise
+ on the scale of political importance much above the degree of her
+ neighbors, that moment would those neighbors behold her with envy
+ and with fear. Both those passions would lead them to countenance,
+ if not to promote, whatever might promise to diminish her
+ importance; and would also restrain them from measures calculated
+ to advance or even to secure her prosperity. Much time would not be
+ necessary to enable her to discern these unfriendly dispositions.
+ She would soon begin, not only to lose confidence in her neighbors,
+ but also to feel a disposition equally unfavorable to them.
+ Distrust naturally creates distrust, and by nothing is good-will
+ and kind conduct more speedily changed than by invidious jealousies
+ and uncandid imputations, whether expressed or implied.
+The North is generally the region of strength, and many local
+ circumstances render it probable that the most Northern of the
+ proposed confederacies would, at a period not very distant, be
+ unquestionably more formidable than any of the others. No sooner
+ would this become evident than the NORTHERN HIVE would excite the
+ same ideas and sensations in the more southern parts of America
+ which it formerly did in the southern parts of Europe. Nor does it
+ appear to be a rash conjecture that its young swarms might often be
+ tempted to gather honey in the more blooming fields and milder air
+ of their luxurious and more delicate neighbors.
+They who well consider the history of similar divisions and
+ confederacies will find abundant reason to apprehend that those in
+ contemplation would in no other sense be neighbors than as they
+ would be borderers; that they would neither love nor trust one
+ another, but on the contrary would be a prey to discord, jealousy,
+ and mutual injuries; in short, that they would place us exactly in
+ the situations in which some nations doubtless wish to see us, viz.,
+ FORMIDABLE ONLY TO EACH OTHER.
+From these considerations it appears that those gentlemen are
+ greatly mistaken who suppose that alliances offensive and defensive
+ might be formed between these confederacies, and would produce that
+ combination and union of wills of arms and of resources, which would
+ be necessary to put and keep them in a formidable state of defense
+ against foreign enemies.
+When did the independent states, into which Britain and Spain
+ were formerly divided, combine in such alliance, or unite their
+ forces against a foreign enemy? The proposed confederacies will be
+ DISTINCT NATIONS. Each of them would have its commerce with
+ foreigners to regulate by distinct treaties; and as their
+ productions and commodities are different and proper for different
+ markets, so would those treaties be essentially different.
+ Different commercial concerns must create different interests, and
+ of course different degrees of political attachment to and
+ connection with different foreign nations. Hence it might and
+ probably would happen that the foreign nation with whom the SOUTHERN
+ confederacy might be at war would be the one with whom the NORTHERN
+ confederacy would be the most desirous of preserving peace and
+ friendship. An alliance so contrary to their immediate interest
+ would not therefore be easy to form, nor, if formed, would it be
+ observed and fulfilled with perfect good faith.
+Nay, it is far more probable that in America, as in Europe,
+ neighboring nations, acting under the impulse of opposite interests
+ and unfriendly passions, would frequently be found taking different
+ sides. Considering our distance from Europe, it would be more
+ natural for these confederacies to apprehend danger from one another
+ than from distant nations, and therefore that each of them should be
+ more desirous to guard against the others by the aid of foreign
+ alliances, than to guard against foreign dangers by alliances
+ between themselves. And here let us not forget how much more easy
+ it is to receive foreign fleets into our ports, and foreign armies
+ into our country, than it is to persuade or compel them to depart.
+ How many conquests did the Romans and others make in the characters
+ of allies, and what innovations did they under the same character
+ introduce into the governments of those whom they pretended to
+ protect.
+Let candid men judge, then, whether the division of America into
+ any given number of independent sovereignties would tend to secure
+ us against the hostilities and improper interference of foreign
+ nations.
+PUBLIUS.
+
+
+FEDERALIST No. 6
+
+Concerning Dangers from Dissensions Between the States
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+THE three last numbers of this paper have been dedicated to an
+ enumeration of the dangers to which we should be exposed, in a state
+ of disunion, from the arms and arts of foreign nations. I shall now
+ proceed to delineate dangers of a different and, perhaps, still more
+ alarming kind--those which will in all probability flow from
+ dissensions between the States themselves, and from domestic
+ factions and convulsions. These have been already in some instances
+ slightly anticipated; but they deserve a more particular and more
+ full investigation.
+A man must be far gone in Utopian speculations who can seriously
+ doubt that, if these States should either be wholly disunited, or
+ only united in partial confederacies, the subdivisions into which
+ they might be thrown would have frequent and violent contests with
+ each other. To presume a want of motives for such contests as an
+ argument against their existence, would be to forget that men are
+ ambitious, vindictive, and rapacious. To look for a continuation of
+ harmony between a number of independent, unconnected sovereignties
+ in the same neighborhood, would be to disregard the uniform course
+ of human events, and to set at defiance the accumulated experience
+ of ages.
+The causes of hostility among nations are innumerable. There
+ are some which have a general and almost constant operation upon the
+ collective bodies of society. Of this description are the love of
+ power or the desire of pre-eminence and dominion--the jealousy of
+ power, or the desire of equality and safety. There are others which
+ have a more circumscribed though an equally operative influence
+ within their spheres. Such are the rivalships and competitions of
+ commerce between commercial nations. And there are others, not less
+ numerous than either of the former, which take their origin entirely
+ in private passions; in the attachments, enmities, interests,
+ hopes, and fears of leading individuals in the communities of which
+ they are members. Men of this class, whether the favorites of a
+ king or of a people, have in too many instances abused the
+ confidence they possessed; and assuming the pretext of some public
+ motive, have not scrupled to sacrifice the national tranquillity to
+ personal advantage or personal gratification.
+The celebrated Pericles, in compliance with the resentment of a
+ prostitute,1 at the expense of much of the blood and treasure of
+ his countrymen, attacked, vanquished, and destroyed the city of the
+ SAMNIANS. The same man, stimulated by private pique against the
+ MEGARENSIANS,2 another nation of Greece, or to avoid a
+ prosecution with which he was threatened as an accomplice of a
+ supposed theft of the statuary Phidias,3 or to get rid of the
+ accusations prepared to be brought against him for dissipating the
+ funds of the state in the purchase of popularity,4 or from a
+ combination of all these causes, was the primitive author of that
+ famous and fatal war, distinguished in the Grecian annals by the
+ name of the PELOPONNESIAN war; which, after various vicissitudes,
+ intermissions, and renewals, terminated in the ruin of the Athenian
+ commonwealth.
+The ambitious cardinal, who was prime minister to Henry VIII.,
+ permitting his vanity to aspire to the triple crown,5
+ entertained hopes of succeeding in the acquisition of that splendid
+ prize by the influence of the Emperor Charles V. To secure the
+ favor and interest of this enterprising and powerful monarch, he
+ precipitated England into a war with France, contrary to the
+ plainest dictates of policy, and at the hazard of the safety and
+ independence, as well of the kingdom over which he presided by his
+ counsels, as of Europe in general. For if there ever was a
+ sovereign who bid fair to realize the project of universal monarchy,
+ it was the Emperor Charles V., of whose intrigues Wolsey was at once
+ the instrument and the dupe.
+The influence which the bigotry of one female,6 the
+ petulance of another,7 and the cabals of a third,8 had in
+ the contemporary policy, ferments, and pacifications, of a
+ considerable part of Europe, are topics that have been too often
+ descanted upon not to be generally known.
+To multiply examples of the agency of personal considerations in
+ the production of great national events, either foreign or domestic,
+ according to their direction, would be an unnecessary waste of time.
+ Those who have but a superficial acquaintance with the sources from
+ which they are to be drawn, will themselves recollect a variety of
+ instances; and those who have a tolerable knowledge of human nature
+ will not stand in need of such lights to form their opinion either
+ of the reality or extent of that agency. Perhaps, however, a
+ reference, tending to illustrate the general principle, may with
+ propriety be made to a case which has lately happened among
+ ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to
+ be doubted whether Massachusetts would have been plunged into a
+ civil war.
+But notwithstanding the concurring testimony of experience, in
+ this particular, there are still to be found visionary or designing
+ men, who stand ready to advocate the paradox of perpetual peace
+ between the States, though dismembered and alienated from each other.
+ The genius of republics (say they) is pacific; the spirit of
+ commerce has a tendency to soften the manners of men, and to
+ extinguish those inflammable humors which have so often kindled into
+ wars. Commercial republics, like ours, will never be disposed to
+ waste themselves in ruinous contentions with each other. They will
+ be governed by mutual interest, and will cultivate a spirit of
+ mutual amity and concord.
+Is it not (we may ask these projectors in politics) the true
+ interest of all nations to cultivate the same benevolent and
+ philosophic spirit? If this be their true interest, have they in
+ fact pursued it? Has it not, on the contrary, invariably been found
+ that momentary passions, and immediate interest, have a more active
+ and imperious control over human conduct than general or remote
+ considerations of policy, utility or justice? Have republics in
+ practice been less addicted to war than monarchies? Are not the
+ former administered by MEN as well as the latter? Are there not
+ aversions, predilections, rivalships, and desires of unjust
+ acquisitions, that affect nations as well as kings? Are not popular
+ assemblies frequently subject to the impulses of rage, resentment,
+ jealousy, avarice, and of other irregular and violent propensities?
+ Is it not well known that their determinations are often governed
+ by a few individuals in whom they place confidence, and are, of
+ course, liable to be tinctured by the passions and views of those
+ individuals? Has commerce hitherto done anything more than change
+ the objects of war? Is not the love of wealth as domineering and
+ enterprising a passion as that of power or glory? Have there not
+ been as many wars founded upon commercial motives since that has
+ become the prevailing system of nations, as were before occasioned
+ by the cupidity of territory or dominion? Has not the spirit of
+ commerce, in many instances, administered new incentives to the
+ appetite, both for the one and for the other? Let experience, the
+ least fallible guide of human opinions, be appealed to for an answer
+ to these inquiries.
+Sparta, Athens, Rome, and Carthage were all republics; two of
+ them, Athens and Carthage, of the commercial kind. Yet were they as
+ often engaged in wars, offensive and defensive, as the neighboring
+ monarchies of the same times. Sparta was little better than a
+ wellregulated camp; and Rome was never sated of carnage and
+ conquest.
+Carthage, though a commercial republic, was the aggressor in the
+ very war that ended in her destruction. Hannibal had carried her
+ arms into the heart of Italy and to the gates of Rome, before
+ Scipio, in turn, gave him an overthrow in the territories of
+ Carthage, and made a conquest of the commonwealth.
+Venice, in later times, figured more than once in wars of
+ ambition, till, becoming an object to the other Italian states, Pope
+ Julius II. found means to accomplish that formidable league,9
+ which gave a deadly blow to the power and pride of this haughty
+ republic.
+The provinces of Holland, till they were overwhelmed in debts
+ and taxes, took a leading and conspicuous part in the wars of Europe.
+ They had furious contests with England for the dominion of the
+ sea, and were among the most persevering and most implacable of the
+ opponents of Louis XIV.
+In the government of Britain the representatives of the people
+ compose one branch of the national legislature. Commerce has been
+ for ages the predominant pursuit of that country. Few nations,
+ nevertheless, have been more frequently engaged in war; and the
+ wars in which that kingdom has been engaged have, in numerous
+ instances, proceeded from the people.
+There have been, if I may so express it, almost as many popular
+ as royal wars. The cries of the nation and the importunities of
+ their representatives have, upon various occasions, dragged their
+ monarchs into war, or continued them in it, contrary to their
+ inclinations, and sometimes contrary to the real interests of the
+ State. In that memorable struggle for superiority between the rival
+ houses of AUSTRIA and BOURBON, which so long kept Europe in a flame,
+ it is well known that the antipathies of the English against the
+ French, seconding the ambition, or rather the avarice, of a favorite
+ leader,10 protracted the war beyond the limits marked out by
+ sound policy, and for a considerable time in opposition to the views
+ of the court.
+The wars of these two last-mentioned nations have in a great
+ measure grown out of commercial considerations,--the desire of
+ supplanting and the fear of being supplanted, either in particular
+ branches of traffic or in the general advantages of trade and
+ navigation.
+From this summary of what has taken place in other countries,
+ whose situations have borne the nearest resemblance to our own, what
+ reason can we have to confide in those reveries which would seduce
+ us into an expectation of peace and cordiality between the members
+ of the present confederacy, in a state of separation? Have we not
+ already seen enough of the fallacy and extravagance of those idle
+ theories which have amused us with promises of an exemption from the
+ imperfections, weaknesses and evils incident to society in every
+ shape? Is it not time to awake from the deceitful dream of a golden
+ age, and to adopt as a practical maxim for the direction of our
+ political conduct that we, as well as the other inhabitants of the
+ globe, are yet remote from the happy empire of perfect wisdom and
+ perfect virtue?
+Let the point of extreme depression to which our national
+ dignity and credit have sunk, let the inconveniences felt everywhere
+ from a lax and ill administration of government, let the revolt of a
+ part of the State of North Carolina, the late menacing disturbances
+ in Pennsylvania, and the actual insurrections and rebellions in
+ Massachusetts, declare--!
+So far is the general sense of mankind from corresponding with
+ the tenets of those who endeavor to lull asleep our apprehensions of
+ discord and hostility between the States, in the event of disunion,
+ that it has from long observation of the progress of society become
+ a sort of axiom in politics, that vicinity or nearness of situation,
+ constitutes nations natural enemies. An intelligent writer
+ expresses himself on this subject to this effect: ``NEIGHBORING
+ NATIONS (says he) are naturally enemies of each other unless their
+ common weakness forces them to league in a CONFEDERATE REPUBLIC, and
+ their constitution prevents the differences that neighborhood
+ occasions, extinguishing that secret jealousy which disposes all
+ states to aggrandize themselves at the expense of their
+ neighbors.''11 This passage, at the same time, points out the
+ EVIL and suggests the REMEDY.
+PUBLIUS.
+1 Aspasia, vide ``Plutarch's Life of Pericles.''
+2 Ibid.
+3 Ibid.
+4 ] Ibid. Phidias was supposed to have stolen some public
+ gold, with the connivance of Pericles, for the embellishment of the
+ statue of Minerva.
+5 P Worn by the popes.
+6 Madame de Maintenon.
+7 Duchess of Marlborough.
+8 Madame de Pompadour.
+9 The League of Cambray, comprehending the Emperor, the King of
+ France, the King of Aragon, and most of the Italian princes and
+ states.
+10 The Duke of Marlborough.
+11 Vide ``Principes des Negociations'' par l'Abbe de Mably.
+
+
+FEDERALIST. No. 7
+
+The Same Subject Continued
+(Concerning Dangers from Dissensions Between the States)
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+IT IS sometimes asked, with an air of seeming triumph, what
+ inducements could the States have, if disunited, to make war upon
+ each other? It would be a full answer to this question to
+ say--precisely the same inducements which have, at different times,
+ deluged in blood all the nations in the world. But, unfortunately
+ for us, the question admits of a more particular answer. There are
+ causes of differences within our immediate contemplation, of the
+ tendency of which, even under the restraints of a federal
+ constitution, we have had sufficient experience to enable us to form
+ a judgment of what might be expected if those restraints were
+ removed.
+Territorial disputes have at all times been found one of the
+ most fertile sources of hostility among nations. Perhaps the
+ greatest proportion of wars that have desolated the earth have
+ sprung from this origin. This cause would exist among us in full
+ force. We have a vast tract of unsettled territory within the
+ boundaries of the United States. There still are discordant and
+ undecided claims between several of them, and the dissolution of the
+ Union would lay a foundation for similar claims between them all.
+ It is well known that they have heretofore had serious and animated
+ discussion concerning the rights to the lands which were ungranted
+ at the time of the Revolution, and which usually went under the name
+ of crown lands. The States within the limits of whose colonial
+ governments they were comprised have claimed them as their property,
+ the others have contended that the rights of the crown in this
+ article devolved upon the Union; especially as to all that part of
+ the Western territory which, either by actual possession, or through
+ the submission of the Indian proprietors, was subjected to the
+ jurisdiction of the king of Great Britain, till it was relinquished
+ in the treaty of peace. This, it has been said, was at all events
+ an acquisition to the Confederacy by compact with a foreign power.
+ It has been the prudent policy of Congress to appease this
+ controversy, by prevailing upon the States to make cessions to the
+ United States for the benefit of the whole. This has been so far
+ accomplished as, under a continuation of the Union, to afford a
+ decided prospect of an amicable termination of the dispute. A
+ dismemberment of the Confederacy, however, would revive this
+ dispute, and would create others on the same subject. At present, a
+ large part of the vacant Western territory is, by cession at least,
+ if not by any anterior right, the common property of the Union. If
+ that were at an end, the States which made the cession, on a
+ principle of federal compromise, would be apt when the motive of the
+ grant had ceased, to reclaim the lands as a reversion. The other
+ States would no doubt insist on a proportion, by right of
+ representation. Their argument would be, that a grant, once made,
+ could not be revoked; and that the justice of participating in
+ territory acquired or secured by the joint efforts of the
+ Confederacy, remained undiminished. If, contrary to probability, it
+ should be admitted by all the States, that each had a right to a
+ share of this common stock, there would still be a difficulty to be
+ surmounted, as to a proper rule of apportionment. Different
+ principles would be set up by different States for this purpose;
+ and as they would affect the opposite interests of the parties,
+ they might not easily be susceptible of a pacific adjustment.
+In the wide field of Western territory, therefore, we perceive
+ an ample theatre for hostile pretensions, without any umpire or
+ common judge to interpose between the contending parties. To reason
+ from the past to the future, we shall have good ground to apprehend,
+ that the sword would sometimes be appealed to as the arbiter of
+ their differences. The circumstances of the dispute between
+ Connecticut and Pennsylvania, respecting the land at Wyoming,
+ admonish us not to be sanguine in expecting an easy accommodation of
+ such differences. The articles of confederation obliged the parties
+ to submit the matter to the decision of a federal court. The
+ submission was made, and the court decided in favor of Pennsylvania.
+ But Connecticut gave strong indications of dissatisfaction with
+ that determination; nor did she appear to be entirely resigned to
+ it, till, by negotiation and management, something like an
+ equivalent was found for the loss she supposed herself to have
+ sustained. Nothing here said is intended to convey the slightest
+ censure on the conduct of that State. She no doubt sincerely
+ believed herself to have been injured by the decision; and States,
+ like individuals, acquiesce with great reluctance in determinations
+ to their disadvantage.
+Those who had an opportunity of seeing the inside of the
+ transactions which attended the progress of the controversy between
+ this State and the district of Vermont, can vouch the opposition we
+ experienced, as well from States not interested as from those which
+ were interested in the claim; and can attest the danger to which
+ the peace of the Confederacy might have been exposed, had this State
+ attempted to assert its rights by force. Two motives preponderated
+ in that opposition: one, a jealousy entertained of our future
+ power; and the other, the interest of certain individuals of
+ influence in the neighboring States, who had obtained grants of
+ lands under the actual government of that district. Even the States
+ which brought forward claims, in contradiction to ours, seemed more
+ solicitous to dismember this State, than to establish their own
+ pretensions. These were New Hampshire, Massachusetts, and
+ Connecticut. New Jersey and Rhode Island, upon all occasions,
+ discovered a warm zeal for the independence of Vermont; and
+ Maryland, till alarmed by the appearance of a connection between
+ Canada and that State, entered deeply into the same views. These
+ being small States, saw with an unfriendly eye the perspective of
+ our growing greatness. In a review of these transactions we may
+ trace some of the causes which would be likely to embroil the States
+ with each other, if it should be their unpropitious destiny to
+ become disunited.
+The competitions of commerce would be another fruitful source of
+ contention. The States less favorably circumstanced would be
+ desirous of escaping from the disadvantages of local situation, and
+ of sharing in the advantages of their more fortunate neighbors.
+ Each State, or separate confederacy, would pursue a system of
+ commercial policy peculiar to itself. This would occasion
+ distinctions, preferences, and exclusions, which would beget
+ discontent. The habits of intercourse, on the basis of equal
+ privileges, to which we have been accustomed since the earliest
+ settlement of the country, would give a keener edge to those causes
+ of discontent than they would naturally have independent of this
+ circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE
+ THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT
+ SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of
+ enterprise, which characterizes the commercial part of America, has
+ left no occasion of displaying itself unimproved. It is not at all
+ probable that this unbridled spirit would pay much respect to those
+ regulations of trade by which particular States might endeavor to
+ secure exclusive benefits to their own citizens. The infractions of
+ these regulations, on one side, the efforts to prevent and repel
+ them, on the other, would naturally lead to outrages, and these to
+ reprisals and wars.
+The opportunities which some States would have of rendering
+ others tributary to them by commercial regulations would be
+ impatiently submitted to by the tributary States. The relative
+ situation of New York, Connecticut, and New Jersey would afford an
+ example of this kind. New York, from the necessities of revenue,
+ must lay duties on her importations. A great part of these duties
+ must be paid by the inhabitants of the two other States in the
+ capacity of consumers of what we import. New York would neither be
+ willing nor able to forego this advantage. Her citizens would not
+ consent that a duty paid by them should be remitted in favor of the
+ citizens of her neighbors; nor would it be practicable, if there
+ were not this impediment in the way, to distinguish the customers in
+ our own markets. Would Connecticut and New Jersey long submit to be
+ taxed by New York for her exclusive benefit? Should we be long
+ permitted to remain in the quiet and undisturbed enjoyment of a
+ metropolis, from the possession of which we derived an advantage so
+ odious to our neighbors, and, in their opinion, so oppressive?
+ Should we be able to preserve it against the incumbent weight of
+ Connecticut on the one side, and the co-operating pressure of New
+ Jersey on the other? These are questions that temerity alone will
+ answer in the affirmative.
+The public debt of the Union would be a further cause of
+ collision between the separate States or confederacies. The
+ apportionment, in the first instance, and the progressive
+ extinguishment afterward, would be alike productive of ill-humor and
+ animosity. How would it be possible to agree upon a rule of
+ apportionment satisfactory to all? There is scarcely any that can
+ be proposed which is entirely free from real objections. These, as
+ usual, would be exaggerated by the adverse interest of the parties.
+ There are even dissimilar views among the States as to the general
+ principle of discharging the public debt. Some of them, either less
+ impressed with the importance of national credit, or because their
+ citizens have little, if any, immediate interest in the question,
+ feel an indifference, if not a repugnance, to the payment of the
+ domestic debt at any rate. These would be inclined to magnify the
+ difficulties of a distribution. Others of them, a numerous body of
+ whose citizens are creditors to the public beyond proportion of the
+ State in the total amount of the national debt, would be strenuous
+ for some equitable and effective provision. The procrastinations of
+ the former would excite the resentments of the latter. The
+ settlement of a rule would, in the meantime, be postponed by real
+ differences of opinion and affected delays. The citizens of the
+ States interested would clamour; foreign powers would urge for the
+ satisfaction of their just demands, and the peace of the States
+ would be hazarded to the double contingency of external invasion and
+ internal contention.
+Suppose the difficulties of agreeing upon a rule surmounted, and
+ the apportionment made. Still there is great room to suppose that
+ the rule agreed upon would, upon experiment, be found to bear harder
+ upon some States than upon others. Those which were sufferers by it
+ would naturally seek for a mitigation of the burden. The others
+ would as naturally be disinclined to a revision, which was likely to
+ end in an increase of their own incumbrances. Their refusal would
+ be too plausible a pretext to the complaining States to withhold
+ their contributions, not to be embraced with avidity; and the
+ non-compliance of these States with their engagements would be a
+ ground of bitter discussion and altercation. If even the rule
+ adopted should in practice justify the equality of its principle,
+ still delinquencies in payments on the part of some of the States
+ would result from a diversity of other causes--the real deficiency of
+ resources; the mismanagement of their finances; accidental
+ disorders in the management of the government; and, in addition to
+ the rest, the reluctance with which men commonly part with money for
+ purposes that have outlived the exigencies which produced them, and
+ interfere with the supply of immediate wants. Delinquencies, from
+ whatever causes, would be productive of complaints, recriminations,
+ and quarrels. There is, perhaps, nothing more likely to disturb the
+ tranquillity of nations than their being bound to mutual
+ contributions for any common object that does not yield an equal and
+ coincident benefit. For it is an observation, as true as it is
+ trite, that there is nothing men differ so readily about as the
+ payment of money.
+Laws in violation of private contracts, as they amount to
+ aggressions on the rights of those States whose citizens are injured
+ by them, may be considered as another probable source of hostility.
+ We are not authorized to expect that a more liberal or more
+ equitable spirit would preside over the legislations of the
+ individual States hereafter, if unrestrained by any additional
+ checks, than we have heretofore seen in too many instances
+ disgracing their several codes. We have observed the disposition to
+ retaliation excited in Connecticut in consequence of the enormities
+ perpetrated by the Legislature of Rhode Island; and we reasonably
+ infer that, in similar cases, under other circumstances, a war, not
+ of PARCHMENT, but of the sword, would chastise such atrocious
+ breaches of moral obligation and social justice.
+The probability of incompatible alliances between the different
+ States or confederacies and different foreign nations, and the
+ effects of this situation upon the peace of the whole, have been
+ sufficiently unfolded in some preceding papers. From the view they
+ have exhibited of this part of the subject, this conclusion is to be
+ drawn, that America, if not connected at all, or only by the feeble
+ tie of a simple league, offensive and defensive, would, by the
+ operation of such jarring alliances, be gradually entangled in all
+ the pernicious labyrinths of European politics and wars; and by the
+ destructive contentions of the parts into which she was divided,
+ would be likely to become a prey to the artifices and machinations
+ of powers equally the enemies of them all. Divide et
+ impera1 must be the motto of every nation that either hates or
+ fears us.2 PUBLIUS.
+1 Divide and command.
+2 In order that the whole subject of these papers may as soon as
+ possible be laid before the public, it is proposed to publish them
+ four times a week--on Tuesday in the New York Packet and on
+ Thursday in the Daily Advertiser.
+
+
+FEDERALIST No. 8
+
+The Consequences of Hostilities Between the States
+From the New York Packet.
+Tuesday, November 20, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+ASSUMING it therefore as an established truth that the several
+ States, in case of disunion, or such combinations of them as might
+ happen to be formed out of the wreck of the general Confederacy,
+ would be subject to those vicissitudes of peace and war, of
+ friendship and enmity, with each other, which have fallen to the lot
+ of all neighboring nations not united under one government, let us
+ enter into a concise detail of some of the consequences that would
+ attend such a situation.
+War between the States, in the first period of their separate
+ existence, would be accompanied with much greater distresses than it
+ commonly is in those countries where regular military establishments
+ have long obtained. The disciplined armies always kept on foot on
+ the continent of Europe, though they bear a malignant aspect to
+ liberty and economy, have, notwithstanding, been productive of the
+ signal advantage of rendering sudden conquests impracticable, and of
+ preventing that rapid desolation which used to mark the progress of
+ war prior to their introduction. The art of fortification has
+ contributed to the same ends. The nations of Europe are encircled
+ with chains of fortified places, which mutually obstruct invasion.
+ Campaigns are wasted in reducing two or three frontier garrisons,
+ to gain admittance into an enemy's country. Similar impediments
+ occur at every step, to exhaust the strength and delay the progress
+ of an invader. Formerly, an invading army would penetrate into the
+ heart of a neighboring country almost as soon as intelligence of its
+ approach could be received; but now a comparatively small force of
+ disciplined troops, acting on the defensive, with the aid of posts,
+ is able to impede, and finally to frustrate, the enterprises of one
+ much more considerable. The history of war, in that quarter of the
+ globe, is no longer a history of nations subdued and empires
+ overturned, but of towns taken and retaken; of battles that decide
+ nothing; of retreats more beneficial than victories; of much
+ effort and little acquisition.
+In this country the scene would be altogether reversed. The
+ jealousy of military establishments would postpone them as long as
+ possible. The want of fortifications, leaving the frontiers of one
+ state open to another, would facilitate inroads. The populous
+ States would, with little difficulty, overrun their less populous
+ neighbors. Conquests would be as easy to be made as difficult to be
+ retained. War, therefore, would be desultory and predatory.
+ PLUNDER and devastation ever march in the train of irregulars. The
+ calamities of individuals would make the principal figure in the
+ events which would characterize our military exploits.
+This picture is not too highly wrought; though, I confess, it
+ would not long remain a just one. Safety from external danger is
+ the most powerful director of national conduct. Even the ardent
+ love of liberty will, after a time, give way to its dictates. The
+ violent destruction of life and property incident to war, the
+ continual effort and alarm attendant on a state of continual danger,
+ will compel nations the most attached to liberty to resort for
+ repose and security to institutions which have a tendency to destroy
+ their civil and political rights. To be more safe, they at length
+ become willing to run the risk of being less free.
+The institutions chiefly alluded to are STANDING ARMIES and the
+ correspondent appendages of military establishments. Standing
+ armies, it is said, are not provided against in the new
+ Constitution; and it is therefore inferred that they may exist
+ under it.1 Their existence, however, from the very terms of the
+ proposition, is, at most, problematical and uncertain. But standing
+ armies, it may be replied, must inevitably result from a dissolution
+ of the Confederacy. Frequent war and constant apprehension, which
+ require a state of as constant preparation, will infallibly produce
+ them. The weaker States or confederacies would first have recourse
+ to them, to put themselves upon an equality with their more potent
+ neighbors. They would endeavor to supply the inferiority of
+ population and resources by a more regular and effective system of
+ defense, by disciplined troops, and by fortifications. They would,
+ at the same time, be necessitated to strengthen the executive arm of
+ government, in doing which their constitutions would acquire a
+ progressive direction toward monarchy. It is of the nature of war
+ to increase the executive at the expense of the legislative
+ authority.
+The expedients which have been mentioned would soon give the
+ States or confederacies that made use of them a superiority over
+ their neighbors. Small states, or states of less natural strength,
+ under vigorous governments, and with the assistance of disciplined
+ armies, have often triumphed over large states, or states of greater
+ natural strength, which have been destitute of these advantages.
+ Neither the pride nor the safety of the more important States or
+ confederacies would permit them long to submit to this mortifying
+ and adventitious superiority. They would quickly resort to means
+ similar to those by which it had been effected, to reinstate
+ themselves in their lost pre-eminence. Thus, we should, in a little
+ time, see established in every part of this country the same engines
+ of despotism which have been the scourge of the Old World. This, at
+ least, would be the natural course of things; and our reasonings
+ will be the more likely to be just, in proportion as they are
+ accommodated to this standard.
+These are not vague inferences drawn from supposed or
+ speculative defects in a Constitution, the whole power of which is
+ lodged in the hands of a people, or their representatives and
+ delegates, but they are solid conclusions, drawn from the natural
+ and necessary progress of human affairs.
+It may, perhaps, be asked, by way of objection to this, why did
+ not standing armies spring up out of the contentions which so often
+ distracted the ancient republics of Greece? Different answers,
+ equally satisfactory, may be given to this question. The
+ industrious habits of the people of the present day, absorbed in the
+ pursuits of gain, and devoted to the improvements of agriculture and
+ commerce, are incompatible with the condition of a nation of
+ soldiers, which was the true condition of the people of those
+ republics. The means of revenue, which have been so greatly
+ multiplied by the increase of gold and silver and of the arts of
+ industry, and the science of finance, which is the offspring of
+ modern times, concurring with the habits of nations, have produced
+ an entire revolution in the system of war, and have rendered
+ disciplined armies, distinct from the body of the citizens, the
+ inseparable companions of frequent hostility.
+There is a wide difference, also, between military
+ establishments in a country seldom exposed by its situation to
+ internal invasions, and in one which is often subject to them, and
+ always apprehensive of them. The rulers of the former can have a
+ good pretext, if they are even so inclined, to keep on foot armies
+ so numerous as must of necessity be maintained in the latter. These
+ armies being, in the first case, rarely, if at all, called into
+ activity for interior defense, the people are in no danger of being
+ broken to military subordination. The laws are not accustomed to
+ relaxations, in favor of military exigencies; the civil state
+ remains in full vigor, neither corrupted, nor confounded with the
+ principles or propensities of the other state. The smallness of the
+ army renders the natural strength of the community an over-match for
+ it; and the citizens, not habituated to look up to the military
+ power for protection, or to submit to its oppressions, neither love
+ nor fear the soldiery; they view them with a spirit of jealous
+ acquiescence in a necessary evil, and stand ready to resist a power
+ which they suppose may be exerted to the prejudice of their rights.
+ The army under such circumstances may usefully aid the magistrate
+ to suppress a small faction, or an occasional mob, or insurrection;
+ but it will be unable to enforce encroachments against the united
+ efforts of the great body of the people.
+In a country in the predicament last described, the contrary of
+ all this happens. The perpetual menacings of danger oblige the
+ government to be always prepared to repel it; its armies must be
+ numerous enough for instant defense. The continual necessity for
+ their services enhances the importance of the soldier, and
+ proportionably degrades the condition of the citizen. The military
+ state becomes elevated above the civil. The inhabitants of
+ territories, often the theatre of war, are unavoidably subjected to
+ frequent infringements on their rights, which serve to weaken their
+ sense of those rights; and by degrees the people are brought to
+ consider the soldiery not only as their protectors, but as their
+ superiors. The transition from this disposition to that of
+ considering them masters, is neither remote nor difficult; but it
+ is very difficult to prevail upon a people under such impressions,
+ to make a bold or effectual resistance to usurpations supported by
+ the military power.
+The kingdom of Great Britain falls within the first description.
+ An insular situation, and a powerful marine, guarding it in a great
+ measure against the possibility of foreign invasion, supersede the
+ necessity of a numerous army within the kingdom. A sufficient force
+ to make head against a sudden descent, till the militia could have
+ time to rally and embody, is all that has been deemed requisite. No
+ motive of national policy has demanded, nor would public opinion
+ have tolerated, a larger number of troops upon its domestic
+ establishment. There has been, for a long time past, little room
+ for the operation of the other causes, which have been enumerated as
+ the consequences of internal war. This peculiar felicity of
+ situation has, in a great degree, contributed to preserve the
+ liberty which that country to this day enjoys, in spite of the
+ prevalent venality and corruption. If, on the contrary, Britain had
+ been situated on the continent, and had been compelled, as she would
+ have been, by that situation, to make her military establishments at
+ home coextensive with those of the other great powers of Europe,
+ she, like them, would in all probability be, at this day, a victim
+ to the absolute power of a single man. 'T is possible, though not
+ easy, that the people of that island may be enslaved from other
+ causes; but it cannot be by the prowess of an army so
+ inconsiderable as that which has been usually kept up within the
+ kingdom.
+If we are wise enough to preserve the Union we may for ages
+ enjoy an advantage similar to that of an insulated situation.
+ Europe is at a great distance from us. Her colonies in our
+ vicinity will be likely to continue too much disproportioned in
+ strength to be able to give us any dangerous annoyance. Extensive
+ military establishments cannot, in this position, be necessary to
+ our security. But if we should be disunited, and the integral parts
+ should either remain separated, or, which is most probable, should
+ be thrown together into two or three confederacies, we should be, in
+ a short course of time, in the predicament of the continental powers
+ of Europe --our liberties would be a prey to the means of defending
+ ourselves against the ambition and jealousy of each other.
+This is an idea not superficial or futile, but solid and weighty.
+ It deserves the most serious and mature consideration of every
+ prudent and honest man of whatever party. If such men will make a
+ firm and solemn pause, and meditate dispassionately on the
+ importance of this interesting idea; if they will contemplate it in
+ all its attitudes, and trace it to all its consequences, they will
+ not hesitate to part with trivial objections to a Constitution, the
+ rejection of which would in all probability put a final period to
+ the Union. The airy phantoms that flit before the distempered
+ imaginations of some of its adversaries would quickly give place to
+ the more substantial forms of dangers, real, certain, and formidable.
+PUBLIUS.
+1 This objection will be fully examined in its proper place, and
+ it will be shown that the only natural precaution which could have
+ been taken on this subject has been taken; and a much better one
+ than is to be found in any constitution that has been heretofore
+ framed in America, most of which contain no guard at all on this
+ subject.
+
+
+FEDERALIST No. 9
+
+The Union as a Safeguard Against Domestic Faction and Insurrection
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+A FIRM Union will be of the utmost moment to the peace and
+ liberty of the States, as a barrier against domestic faction and
+ insurrection. It is impossible to read the history of the petty
+ republics of Greece and Italy without feeling sensations of horror
+ and disgust at the distractions with which they were continually
+ agitated, and at the rapid succession of revolutions by which they
+ were kept in a state of perpetual vibration between the extremes of
+ tyranny and anarchy. If they exhibit occasional calms, these only
+ serve as short-lived contrast to the furious storms that are to
+ succeed. If now and then intervals of felicity open to view, we
+ behold them with a mixture of regret, arising from the reflection
+ that the pleasing scenes before us are soon to be overwhelmed by the
+ tempestuous waves of sedition and party rage. If momentary rays of
+ glory break forth from the gloom, while they dazzle us with a
+ transient and fleeting brilliancy, they at the same time admonish us
+ to lament that the vices of government should pervert the direction
+ and tarnish the lustre of those bright talents and exalted
+ endowments for which the favored soils that produced them have been
+ so justly celebrated.
+From the disorders that disfigure the annals of those republics
+ the advocates of despotism have drawn arguments, not only against
+ the forms of republican government, but against the very principles
+ of civil liberty. They have decried all free government as
+ inconsistent with the order of society, and have indulged themselves
+ in malicious exultation over its friends and partisans. Happily for
+ mankind, stupendous fabrics reared on the basis of liberty, which
+ have flourished for ages, have, in a few glorious instances, refuted
+ their gloomy sophisms. And, I trust, America will be the broad and
+ solid foundation of other edifices, not less magnificent, which will
+ be equally permanent monuments of their errors.
+But it is not to be denied that the portraits they have sketched
+ of republican government were too just copies of the originals from
+ which they were taken. If it had been found impracticable to have
+ devised models of a more perfect structure, the enlightened friends
+ to liberty would have been obliged to abandon the cause of that
+ species of government as indefensible. The science of politics,
+ however, like most other sciences, has received great improvement.
+ The efficacy of various principles is now well understood, which
+ were either not known at all, or imperfectly known to the ancients.
+ The regular distribution of power into distinct departments; the
+ introduction of legislative balances and checks; the institution of
+ courts composed of judges holding their offices during good
+ behavior; the representation of the people in the legislature by
+ deputies of their own election: these are wholly new discoveries,
+ or have made their principal progress towards perfection in modern
+ times. They are means, and powerful means, by which the excellences
+ of republican government may be retained and its imperfections
+ lessened or avoided. To this catalogue of circumstances that tend
+ to the amelioration of popular systems of civil government, I shall
+ venture, however novel it may appear to some, to add one more, on a
+ principle which has been made the foundation of an objection to the
+ new Constitution; I mean the ENLARGEMENT of the ORBIT within which
+ such systems are to revolve, either in respect to the dimensions of
+ a single State or to the consolidation of several smaller States
+ into one great Confederacy. The latter is that which immediately
+ concerns the object under consideration. It will, however, be of
+ use to examine the principle in its application to a single State,
+ which shall be attended to in another place.
+The utility of a Confederacy, as well to suppress faction and to
+ guard the internal tranquillity of States, as to increase their
+ external force and security, is in reality not a new idea. It has
+ been practiced upon in different countries and ages, and has
+ received the sanction of the most approved writers on the subject of
+ politics. The opponents of the plan proposed have, with great
+ assiduity, cited and circulated the observations of Montesquieu on
+ the necessity of a contracted territory for a republican government.
+ But they seem not to have been apprised of the sentiments of that
+ great man expressed in another part of his work, nor to have
+ adverted to the consequences of the principle to which they
+ subscribe with such ready acquiescence.
+When Montesquieu recommends a small extent for republics, the
+ standards he had in view were of dimensions far short of the limits
+ of almost every one of these States. Neither Virginia,
+ Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia
+ can by any means be compared with the models from which he reasoned
+ and to which the terms of his description apply. If we therefore
+ take his ideas on this point as the criterion of truth, we shall be
+ driven to the alternative either of taking refuge at once in the
+ arms of monarchy, or of splitting ourselves into an infinity of
+ little, jealous, clashing, tumultuous commonwealths, the wretched
+ nurseries of unceasing discord, and the miserable objects of
+ universal pity or contempt. Some of the writers who have come
+ forward on the other side of the question seem to have been aware of
+ the dilemma; and have even been bold enough to hint at the division
+ of the larger States as a desirable thing. Such an infatuated
+ policy, such a desperate expedient, might, by the multiplication of
+ petty offices, answer the views of men who possess not
+ qualifications to extend their influence beyond the narrow circles
+ of personal intrigue, but it could never promote the greatness or
+ happiness of the people of America.
+Referring the examination of the principle itself to another
+ place, as has been already mentioned, it will be sufficient to
+ remark here that, in the sense of the author who has been most
+ emphatically quoted upon the occasion, it would only dictate a
+ reduction of the SIZE of the more considerable MEMBERS of the Union,
+ but would not militate against their being all comprehended in one
+ confederate government. And this is the true question, in the
+ discussion of which we are at present interested.
+So far are the suggestions of Montesquieu from standing in
+ opposition to a general Union of the States, that he explicitly
+ treats of a CONFEDERATE REPUBLIC as the expedient for extending the
+ sphere of popular government, and reconciling the advantages of
+ monarchy with those of republicanism.
+``It is very probable,'' (says he1) ``that mankind would
+ have been obliged at length to live constantly under the government
+ of a single person, had they not contrived a kind of constitution
+ that has all the internal advantages of a republican, together with
+ the external force of a monarchical government. I mean a
+ CONFEDERATE REPUBLIC.
+``This form of government is a convention by which several
+ smaller STATES agree to become members of a larger ONE, which they
+ intend to form. It is a kind of assemblage of societies that
+ constitute a new one, capable of increasing, by means of new
+ associations, till they arrive to such a degree of power as to be
+ able to provide for the security of the united body.
+``A republic of this kind, able to withstand an external force,
+ may support itself without any internal corruptions. The form of
+ this society prevents all manner of inconveniences.
+``If a single member should attempt to usurp the supreme
+ authority, he could not be supposed to have an equal authority and
+ credit in all the confederate states. Were he to have too great
+ influence over one, this would alarm the rest. Were he to subdue a
+ part, that which would still remain free might oppose him with
+ forces independent of those which he had usurped and overpower him
+ before he could be settled in his usurpation.
+``Should a popular insurrection happen in one of the confederate
+ states the others are able to quell it. Should abuses creep into
+ one part, they are reformed by those that remain sound. The state
+ may be destroyed on one side, and not on the other; the confederacy
+ may be dissolved, and the confederates preserve their sovereignty.
+``As this government is composed of small republics, it enjoys
+ the internal happiness of each; and with respect to its external
+ situation, it is possessed, by means of the association, of all the
+ advantages of large monarchies.''
+I have thought it proper to quote at length these interesting
+ passages, because they contain a luminous abridgment of the
+ principal arguments in favor of the Union, and must effectually
+ remove the false impressions which a misapplication of other parts
+ of the work was calculated to make. They have, at the same time, an
+ intimate connection with the more immediate design of this paper;
+ which is, to illustrate the tendency of the Union to repress
+ domestic faction and insurrection.
+A distinction, more subtle than accurate, has been raised
+ between a CONFEDERACY and a CONSOLIDATION of the States. The
+ essential characteristic of the first is said to be, the restriction
+ of its authority to the members in their collective capacities,
+ without reaching to the individuals of whom they are composed. It
+ is contended that the national council ought to have no concern with
+ any object of internal administration. An exact equality of
+ suffrage between the members has also been insisted upon as a
+ leading feature of a confederate government. These positions are,
+ in the main, arbitrary; they are supported neither by principle nor
+ precedent. It has indeed happened, that governments of this kind
+ have generally operated in the manner which the distinction taken
+ notice of, supposes to be inherent in their nature; but there have
+ been in most of them extensive exceptions to the practice, which
+ serve to prove, as far as example will go, that there is no absolute
+ rule on the subject. And it will be clearly shown in the course of
+ this investigation that as far as the principle contended for has
+ prevailed, it has been the cause of incurable disorder and
+ imbecility in the government.
+The definition of a CONFEDERATE REPUBLIC seems simply to be ``an
+ assemblage of societies,'' or an association of two or more states
+ into one state. The extent, modifications, and objects of the
+ federal authority are mere matters of discretion. So long as the
+ separate organization of the members be not abolished; so long as
+ it exists, by a constitutional necessity, for local purposes;
+ though it should be in perfect subordination to the general
+ authority of the union, it would still be, in fact and in theory, an
+ association of states, or a confederacy. The proposed Constitution,
+ so far from implying an abolition of the State governments, makes
+ them constituent parts of the national sovereignty, by allowing them
+ a direct representation in the Senate, and leaves in their
+ possession certain exclusive and very important portions of
+ sovereign power. This fully corresponds, in every rational import
+ of the terms, with the idea of a federal government.
+In the Lycian confederacy, which consisted of twenty-three
+ CITIES or republics, the largest were entitled to THREE votes in the
+ COMMON COUNCIL, those of the middle class to TWO, and the smallest
+ to ONE. The COMMON COUNCIL had the appointment of all the judges
+ and magistrates of the respective CITIES. This was certainly the
+ most, delicate species of interference in their internal
+ administration; for if there be any thing that seems exclusively
+ appropriated to the local jurisdictions, it is the appointment of
+ their own officers. Yet Montesquieu, speaking of this association,
+ says: ``Were I to give a model of an excellent Confederate
+ Republic, it would be that of Lycia.'' Thus we perceive that the
+ distinctions insisted upon were not within the contemplation of this
+ enlightened civilian; and we shall be led to conclude, that they
+ are the novel refinements of an erroneous theory.
+PUBLIUS.
+1 ``Spirit of Lawa,'' vol. i., book ix., chap. i.
+
+
+FEDERALIST No. 10
+
+The Same Subject Continued
+(The Union as a Safeguard Against Domestic Faction and
+ Insurrection)
+From the New York Packet.
+Friday, November 23, 1787.
+
+MADISON
+
+To the People of the State of New York:
+AMONG the numerous advantages promised by a wellconstructed
+ Union, none deserves to be more accurately developed than its
+ tendency to break and control the violence of faction. The friend
+ of popular governments never finds himself so much alarmed for their
+ character and fate, as when he contemplates their propensity to this
+ dangerous vice. He will not fail, therefore, to set a due value on
+ any plan which, without violating the principles to which he is
+ attached, provides a proper cure for it. The instability,
+ injustice, and confusion introduced into the public councils, have,
+ in truth, been the mortal diseases under which popular governments
+ have everywhere perished; as they continue to be the favorite and
+ fruitful topics from which the adversaries to liberty derive their
+ most specious declamations. The valuable improvements made by the
+ American constitutions on the popular models, both ancient and
+ modern, cannot certainly be too much admired; but it would be an
+ unwarrantable partiality, to contend that they have as effectually
+ obviated the danger on this side, as was wished and expected.
+ Complaints are everywhere heard from our most considerate and
+ virtuous citizens, equally the friends of public and private faith,
+ and of public and personal liberty, that our governments are too
+ unstable, that the public good is disregarded in the conflicts of
+ rival parties, and that measures are too often decided, not
+ according to the rules of justice and the rights of the minor party,
+ but by the superior force of an interested and overbearing majority.
+ However anxiously we may wish that these complaints had no
+ foundation, the evidence, of known facts will not permit us to deny
+ that they are in some degree true. It will be found, indeed, on a
+ candid review of our situation, that some of the distresses under
+ which we labor have been erroneously charged on the operation of our
+ governments; but it will be found, at the same time, that other
+ causes will not alone account for many of our heaviest misfortunes;
+ and, particularly, for that prevailing and increasing distrust of
+ public engagements, and alarm for private rights, which are echoed
+ from one end of the continent to the other. These must be chiefly,
+ if not wholly, effects of the unsteadiness and injustice with which
+ a factious spirit has tainted our public administrations.
+By a faction, I understand a number of citizens, whether
+ amounting to a majority or a minority of the whole, who are united
+ and actuated by some common impulse of passion, or of interest,
+ adversed to the rights of other citizens, or to the permanent and
+ aggregate interests of the community.
+There are two methods of curing the mischiefs of faction: the
+ one, by removing its causes; the other, by controlling its effects.
+There are again two methods of removing the causes of faction:
+ the one, by destroying the liberty which is essential to its
+ existence; the other, by giving to every citizen the same opinions,
+ the same passions, and the same interests.
+It could never be more truly said than of the first remedy, that
+ it was worse than the disease. Liberty is to faction what air is to
+ fire, an aliment without which it instantly expires. But it could
+ not be less folly to abolish liberty, which is essential to
+ political life, because it nourishes faction, than it would be to
+ wish the annihilation of air, which is essential to animal life,
+ because it imparts to fire its destructive agency.
+The second expedient is as impracticable as the first would be
+ unwise. As long as the reason of man continues fallible, and he is
+ at liberty to exercise it, different opinions will be formed. As
+ long as the connection subsists between his reason and his
+ self-love, his opinions and his passions will have a reciprocal
+ influence on each other; and the former will be objects to which
+ the latter will attach themselves. The diversity in the faculties
+ of men, from which the rights of property originate, is not less an
+ insuperable obstacle to a uniformity of interests. The protection
+ of these faculties is the first object of government. From the
+ protection of different and unequal faculties of acquiring property,
+ the possession of different degrees and kinds of property
+ immediately results; and from the influence of these on the
+ sentiments and views of the respective proprietors, ensues a
+ division of the society into different interests and parties.
+The latent causes of faction are thus sown in the nature of man;
+ and we see them everywhere brought into different degrees of
+ activity, according to the different circumstances of civil society.
+ A zeal for different opinions concerning religion, concerning
+ government, and many other points, as well of speculation as of
+ practice; an attachment to different leaders ambitiously contending
+ for pre-eminence and power; or to persons of other descriptions
+ whose fortunes have been interesting to the human passions, have, in
+ turn, divided mankind into parties, inflamed them with mutual
+ animosity, and rendered them much more disposed to vex and oppress
+ each other than to co-operate for their common good. So strong is
+ this propensity of mankind to fall into mutual animosities, that
+ where no substantial occasion presents itself, the most frivolous
+ and fanciful distinctions have been sufficient to kindle their
+ unfriendly passions and excite their most violent conflicts. But
+ the most common and durable source of factions has been the various
+ and unequal distribution of property. Those who hold and those who
+ are without property have ever formed distinct interests in society.
+ Those who are creditors, and those who are debtors, fall under a
+ like discrimination. A landed interest, a manufacturing interest, a
+ mercantile interest, a moneyed interest, with many lesser interests,
+ grow up of necessity in civilized nations, and divide them into
+ different classes, actuated by different sentiments and views. The
+ regulation of these various and interfering interests forms the
+ principal task of modern legislation, and involves the spirit of
+ party and faction in the necessary and ordinary operations of the
+ government.
+No man is allowed to be a judge in his own cause, because his
+ interest would certainly bias his judgment, and, not improbably,
+ corrupt his integrity. With equal, nay with greater reason, a body
+ of men are unfit to be both judges and parties at the same time;
+ yet what are many of the most important acts of legislation, but so
+ many judicial determinations, not indeed concerning the rights of
+ single persons, but concerning the rights of large bodies of
+ citizens? And what are the different classes of legislators but
+ advocates and parties to the causes which they determine? Is a law
+ proposed concerning private debts? It is a question to which the
+ creditors are parties on one side and the debtors on the other.
+ Justice ought to hold the balance between them. Yet the parties
+ are, and must be, themselves the judges; and the most numerous
+ party, or, in other words, the most powerful faction must be
+ expected to prevail. Shall domestic manufactures be encouraged, and
+ in what degree, by restrictions on foreign manufactures? are
+ questions which would be differently decided by the landed and the
+ manufacturing classes, and probably by neither with a sole regard to
+ justice and the public good. The apportionment of taxes on the
+ various descriptions of property is an act which seems to require
+ the most exact impartiality; yet there is, perhaps, no legislative
+ act in which greater opportunity and temptation are given to a
+ predominant party to trample on the rules of justice. Every
+ shilling with which they overburden the inferior number, is a
+ shilling saved to their own pockets.
+It is in vain to say that enlightened statesmen will be able to
+ adjust these clashing interests, and render them all subservient to
+ the public good. Enlightened statesmen will not always be at the
+ helm. Nor, in many cases, can such an adjustment be made at all
+ without taking into view indirect and remote considerations, which
+ will rarely prevail over the immediate interest which one party may
+ find in disregarding the rights of another or the good of the whole.
+The inference to which we are brought is, that the CAUSES of
+ faction cannot be removed, and that relief is only to be sought in
+ the means of controlling its EFFECTS.
+If a faction consists of less than a majority, relief is
+ supplied by the republican principle, which enables the majority to
+ defeat its sinister views by regular vote. It may clog the
+ administration, it may convulse the society; but it will be unable
+ to execute and mask its violence under the forms of the Constitution.
+ When a majority is included in a faction, the form of popular
+ government, on the other hand, enables it to sacrifice to its ruling
+ passion or interest both the public good and the rights of other
+ citizens. To secure the public good and private rights against the
+ danger of such a faction, and at the same time to preserve the
+ spirit and the form of popular government, is then the great object
+ to which our inquiries are directed. Let me add that it is the
+ great desideratum by which this form of government can be rescued
+ from the opprobrium under which it has so long labored, and be
+ recommended to the esteem and adoption of mankind.
+By what means is this object attainable? Evidently by one of
+ two only. Either the existence of the same passion or interest in a
+ majority at the same time must be prevented, or the majority, having
+ such coexistent passion or interest, must be rendered, by their
+ number and local situation, unable to concert and carry into effect
+ schemes of oppression. If the impulse and the opportunity be
+ suffered to coincide, we well know that neither moral nor religious
+ motives can be relied on as an adequate control. They are not found
+ to be such on the injustice and violence of individuals, and lose
+ their efficacy in proportion to the number combined together, that
+ is, in proportion as their efficacy becomes needful.
+From this view of the subject it may be concluded that a pure
+ democracy, by which I mean a society consisting of a small number of
+ citizens, who assemble and administer the government in person, can
+ admit of no cure for the mischiefs of faction. A common passion or
+ interest will, in almost every case, be felt by a majority of the
+ whole; a communication and concert result from the form of
+ government itself; and there is nothing to check the inducements to
+ sacrifice the weaker party or an obnoxious individual. Hence it is
+ that such democracies have ever been spectacles of turbulence and
+ contention; have ever been found incompatible with personal
+ security or the rights of property; and have in general been as
+ short in their lives as they have been violent in their deaths.
+ Theoretic politicians, who have patronized this species of
+ government, have erroneously supposed that by reducing mankind to a
+ perfect equality in their political rights, they would, at the same
+ time, be perfectly equalized and assimilated in their possessions,
+ their opinions, and their passions.
+A republic, by which I mean a government in which the scheme of
+ representation takes place, opens a different prospect, and promises
+ the cure for which we are seeking. Let us examine the points in
+ which it varies from pure democracy, and we shall comprehend both
+ the nature of the cure and the efficacy which it must derive from
+ the Union.
+The two great points of difference between a democracy and a
+ republic are: first, the delegation of the government, in the
+ latter, to a small number of citizens elected by the rest;
+ secondly, the greater number of citizens, and greater sphere of
+ country, over which the latter may be extended.
+The effect of the first difference is, on the one hand, to
+ refine and enlarge the public views, by passing them through the
+ medium of a chosen body of citizens, whose wisdom may best discern
+ the true interest of their country, and whose patriotism and love of
+ justice will be least likely to sacrifice it to temporary or partial
+ considerations. Under such a regulation, it may well happen that
+ the public voice, pronounced by the representatives of the people,
+ will be more consonant to the public good than if pronounced by the
+ people themselves, convened for the purpose. On the other hand, the
+ effect may be inverted. Men of factious tempers, of local
+ prejudices, or of sinister designs, may, by intrigue, by corruption,
+ or by other means, first obtain the suffrages, and then betray the
+ interests, of the people. The question resulting is, whether small
+ or extensive republics are more favorable to the election of proper
+ guardians of the public weal; and it is clearly decided in favor of
+ the latter by two obvious considerations:
+In the first place, it is to be remarked that, however small the
+ republic may be, the representatives must be raised to a certain
+ number, in order to guard against the cabals of a few; and that,
+ however large it may be, they must be limited to a certain number,
+ in order to guard against the confusion of a multitude. Hence, the
+ number of representatives in the two cases not being in proportion
+ to that of the two constituents, and being proportionally greater in
+ the small republic, it follows that, if the proportion of fit
+ characters be not less in the large than in the small republic, the
+ former will present a greater option, and consequently a greater
+ probability of a fit choice.
+In the next place, as each representative will be chosen by a
+ greater number of citizens in the large than in the small republic,
+ it will be more difficult for unworthy candidates to practice with
+ success the vicious arts by which elections are too often carried;
+ and the suffrages of the people being more free, will be more
+ likely to centre in men who possess the most attractive merit and
+ the most diffusive and established characters.
+It must be confessed that in this, as in most other cases, there
+ is a mean, on both sides of which inconveniences will be found to
+ lie. By enlarging too much the number of electors, you render the
+ representatives too little acquainted with all their local
+ circumstances and lesser interests; as by reducing it too much, you
+ render him unduly attached to these, and too little fit to
+ comprehend and pursue great and national objects. The federal
+ Constitution forms a happy combination in this respect; the great
+ and aggregate interests being referred to the national, the local
+ and particular to the State legislatures.
+The other point of difference is, the greater number of citizens
+ and extent of territory which may be brought within the compass of
+ republican than of democratic government; and it is this
+ circumstance principally which renders factious combinations less to
+ be dreaded in the former than in the latter. The smaller the
+ society, the fewer probably will be the distinct parties and
+ interests composing it; the fewer the distinct parties and
+ interests, the more frequently will a majority be found of the same
+ party; and the smaller the number of individuals composing a
+ majority, and the smaller the compass within which they are placed,
+ the more easily will they concert and execute their plans of
+ oppression. Extend the sphere, and you take in a greater variety of
+ parties and interests; you make it less probable that a majority of
+ the whole will have a common motive to invade the rights of other
+ citizens; or if such a common motive exists, it will be more
+ difficult for all who feel it to discover their own strength, and to
+ act in unison with each other. Besides other impediments, it may be
+ remarked that, where there is a consciousness of unjust or
+ dishonorable purposes, communication is always checked by distrust
+ in proportion to the number whose concurrence is necessary.
+Hence, it clearly appears, that the same advantage which a
+ republic has over a democracy, in controlling the effects of
+ faction, is enjoyed by a large over a small republic,--is enjoyed by
+ the Union over the States composing it. Does the advantage consist
+ in the substitution of representatives whose enlightened views and
+ virtuous sentiments render them superior to local prejudices and
+ schemes of injustice? It will not be denied that the representation
+ of the Union will be most likely to possess these requisite
+ endowments. Does it consist in the greater security afforded by a
+ greater variety of parties, against the event of any one party being
+ able to outnumber and oppress the rest? In an equal degree does the
+ increased variety of parties comprised within the Union, increase
+ this security. Does it, in fine, consist in the greater obstacles
+ opposed to the concert and accomplishment of the secret wishes of an
+ unjust and interested majority? Here, again, the extent of the
+ Union gives it the most palpable advantage.
+The influence of factious leaders may kindle a flame within
+ their particular States, but will be unable to spread a general
+ conflagration through the other States. A religious sect may
+ degenerate into a political faction in a part of the Confederacy;
+ but the variety of sects dispersed over the entire face of it must
+ secure the national councils against any danger from that source. A
+ rage for paper money, for an abolition of debts, for an equal
+ division of property, or for any other improper or wicked project,
+ will be less apt to pervade the whole body of the Union than a
+ particular member of it; in the same proportion as such a malady is
+ more likely to taint a particular county or district, than an entire
+ State.
+In the extent and proper structure of the Union, therefore, we
+ behold a republican remedy for the diseases most incident to
+ republican government. And according to the degree of pleasure and
+ pride we feel in being republicans, ought to be our zeal in
+ cherishing the spirit and supporting the character of Federalists.
+PUBLIUS.
+
+
+FEDERALIST No. 11
+
+The Utility of the Union in Respect to Commercial Relations and a
+ Navy
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+THE importance of the Union, in a commercial light, is one of
+ those points about which there is least room to entertain a
+ difference of opinion, and which has, in fact, commanded the most
+ general assent of men who have any acquaintance with the subject.
+ This applies as well to our intercourse with foreign countries as
+ with each other.
+There are appearances to authorize a supposition that the
+ adventurous spirit, which distinguishes the commercial character of
+ America, has already excited uneasy sensations in several of the
+ maritime powers of Europe. They seem to be apprehensive of our too
+ great interference in that carrying trade, which is the support of
+ their navigation and the foundation of their naval strength. Those
+ of them which have colonies in America look forward to what this
+ country is capable of becoming, with painful solicitude. They
+ foresee the dangers that may threaten their American dominions from
+ the neighborhood of States, which have all the dispositions, and
+ would possess all the means, requisite to the creation of a powerful
+ marine. Impressions of this kind will naturally indicate the policy
+ of fostering divisions among us, and of depriving us, as far as
+ possible, of an ACTIVE COMMERCE in our own bottoms. This would
+ answer the threefold purpose of preventing our interference in their
+ navigation, of monopolizing the profits of our trade, and of
+ clipping the wings by which we might soar to a dangerous greatness.
+ Did not prudence forbid the detail, it would not be difficult to
+ trace, by facts, the workings of this policy to the cabinets of
+ ministers.
+If we continue united, we may counteract a policy so unfriendly
+ to our prosperity in a variety of ways. By prohibitory regulations,
+ extending, at the same time, throughout the States, we may oblige
+ foreign countries to bid against each other, for the privileges of
+ our markets. This assertion will not appear chimerical to those who
+ are able to appreciate the importance of the markets of three
+ millions of people--increasing in rapid progression, for the most
+ part exclusively addicted to agriculture, and likely from local
+ circumstances to remain so--to any manufacturing nation; and the
+ immense difference there would be to the trade and navigation of
+ such a nation, between a direct communication in its own ships, and
+ an indirect conveyance of its products and returns, to and from
+ America, in the ships of another country. Suppose, for instance, we
+ had a government in America, capable of excluding Great Britain
+ (with whom we have at present no treaty of commerce) from all our
+ ports; what would be the probable operation of this step upon her
+ politics? Would it not enable us to negotiate, with the fairest
+ prospect of success, for commercial privileges of the most valuable
+ and extensive kind, in the dominions of that kingdom? When these
+ questions have been asked, upon other occasions, they have received
+ a plausible, but not a solid or satisfactory answer. It has been
+ said that prohibitions on our part would produce no change in the
+ system of Britain, because she could prosecute her trade with us
+ through the medium of the Dutch, who would be her immediate
+ customers and paymasters for those articles which were wanted for
+ the supply of our markets. But would not her navigation be
+ materially injured by the loss of the important advantage of being
+ her own carrier in that trade? Would not the principal part of its
+ profits be intercepted by the Dutch, as a compensation for their
+ agency and risk? Would not the mere circumstance of freight
+ occasion a considerable deduction? Would not so circuitous an
+ intercourse facilitate the competitions of other nations, by
+ enhancing the price of British commodities in our markets, and by
+ transferring to other hands the management of this interesting
+ branch of the British commerce?
+A mature consideration of the objects suggested by these
+ questions will justify a belief that the real disadvantages to
+ Britain from such a state of things, conspiring with the
+ pre-possessions of a great part of the nation in favor of the
+ American trade, and with the importunities of the West India
+ islands, would produce a relaxation in her present system, and would
+ let us into the enjoyment of privileges in the markets of those
+ islands elsewhere, from which our trade would derive the most
+ substantial benefits. Such a point gained from the British
+ government, and which could not be expected without an equivalent in
+ exemptions and immunities in our markets, would be likely to have a
+ correspondent effect on the conduct of other nations, who would not
+ be inclined to see themselves altogether supplanted in our trade.
+A further resource for influencing the conduct of European
+ nations toward us, in this respect, would arise from the
+ establishment of a federal navy. There can be no doubt that the
+ continuance of the Union under an efficient government would put it
+ in our power, at a period not very distant, to create a navy which,
+ if it could not vie with those of the great maritime powers, would
+ at least be of respectable weight if thrown into the scale of either
+ of two contending parties. This would be more peculiarly the case
+ in relation to operations in the West Indies. A few ships of the
+ line, sent opportunely to the reinforcement of either side, would
+ often be sufficient to decide the fate of a campaign, on the event
+ of which interests of the greatest magnitude were suspended. Our
+ position is, in this respect, a most commanding one. And if to this
+ consideration we add that of the usefulness of supplies from this
+ country, in the prosecution of military operations in the West
+ Indies, it will readily be perceived that a situation so favorable
+ would enable us to bargain with great advantage for commercial
+ privileges. A price would be set not only upon our friendship, but
+ upon our neutrality. By a steady adherence to the Union we may
+ hope, erelong, to become the arbiter of Europe in America, and to be
+ able to incline the balance of European competitions in this part of
+ the world as our interest may dictate.
+But in the reverse of this eligible situation, we shall discover
+ that the rivalships of the parts would make them checks upon each
+ other, and would frustrate all the tempting advantages which nature
+ has kindly placed within our reach. In a state so insignificant our
+ commerce would be a prey to the wanton intermeddlings of all nations
+ at war with each other; who, having nothing to fear from us, would
+ with little scruple or remorse, supply their wants by depredations
+ on our property as often as it fell in their way. The rights of
+ neutrality will only be respected when they are defended by an
+ adequate power. A nation, despicable by its weakness, forfeits even
+ the privilege of being neutral.
+Under a vigorous national government, the natural strength and
+ resources of the country, directed to a common interest, would
+ baffle all the combinations of European jealousy to restrain our
+ growth. This situation would even take away the motive to such
+ combinations, by inducing an impracticability of success. An active
+ commerce, an extensive navigation, and a flourishing marine would
+ then be the offspring of moral and physical necessity. We might
+ defy the little arts of the little politicians to control or vary
+ the irresistible and unchangeable course of nature.
+But in a state of disunion, these combinations might exist and
+ might operate with success. It would be in the power of the
+ maritime nations, availing themselves of our universal impotence, to
+ prescribe the conditions of our political existence; and as they
+ have a common interest in being our carriers, and still more in
+ preventing our becoming theirs, they would in all probability
+ combine to embarrass our navigation in such a manner as would in
+ effect destroy it, and confine us to a PASSIVE COMMERCE. We should
+ then be compelled to content ourselves with the first price of our
+ commodities, and to see the profits of our trade snatched from us to
+ enrich our enemies and persecutors. That unequaled spirit of
+ enterprise, which signalizes the genius of the American merchants
+ and navigators, and which is in itself an inexhaustible mine of
+ national wealth, would be stifled and lost, and poverty and disgrace
+ would overspread a country which, with wisdom, might make herself
+ the admiration and envy of the world.
+There are rights of great moment to the trade of America which
+ are rights of the Union--I allude to the fisheries, to the navigation
+ of the Western lakes, and to that of the Mississippi. The
+ dissolution of the Confederacy would give room for delicate
+ questions concerning the future existence of these rights; which
+ the interest of more powerful partners would hardly fail to solve to
+ our disadvantage. The disposition of Spain with regard to the
+ Mississippi needs no comment. France and Britain are concerned with
+ us in the fisheries, and view them as of the utmost moment to their
+ navigation. They, of course, would hardly remain long indifferent
+ to that decided mastery, of which experience has shown us to be
+ possessed in this valuable branch of traffic, and by which we are
+ able to undersell those nations in their own markets. What more
+ natural than that they should be disposed to exclude from the lists
+ such dangerous competitors?
+This branch of trade ought not to be considered as a partial
+ benefit. All the navigating States may, in different degrees,
+ advantageously participate in it, and under circumstances of a
+ greater extension of mercantile capital, would not be unlikely to do
+ it. As a nursery of seamen, it now is, or when time shall have more
+ nearly assimilated the principles of navigation in the several
+ States, will become, a universal resource. To the establishment of
+ a navy, it must be indispensable.
+To this great national object, a NAVY, union will contribute in
+ various ways. Every institution will grow and flourish in
+ proportion to the quantity and extent of the means concentred
+ towards its formation and support. A navy of the United States, as
+ it would embrace the resources of all, is an object far less remote
+ than a navy of any single State or partial confederacy, which would
+ only embrace the resources of a single part. It happens, indeed,
+ that different portions of confederated America possess each some
+ peculiar advantage for this essential establishment. The more
+ southern States furnish in greater abundance certain kinds of naval
+ stores--tar, pitch, and turpentine. Their wood for the construction
+ of ships is also of a more solid and lasting texture. The
+ difference in the duration of the ships of which the navy might be
+ composed, if chiefly constructed of Southern wood, would be of
+ signal importance, either in the view of naval strength or of
+ national economy. Some of the Southern and of the Middle States
+ yield a greater plenty of iron, and of better quality. Seamen must
+ chiefly be drawn from the Northern hive. The necessity of naval
+ protection to external or maritime commerce does not require a
+ particular elucidation, no more than the conduciveness of that
+ species of commerce to the prosperity of a navy.
+An unrestrained intercourse between the States themselves will
+ advance the trade of each by an interchange of their respective
+ productions, not only for the supply of reciprocal wants at home,
+ but for exportation to foreign markets. The veins of commerce in
+ every part will be replenished, and will acquire additional motion
+ and vigor from a free circulation of the commodities of every part.
+ Commercial enterprise will have much greater scope, from the
+ diversity in the productions of different States. When the staple
+ of one fails from a bad harvest or unproductive crop, it can call to
+ its aid the staple of another. The variety, not less than the
+ value, of products for exportation contributes to the activity of
+ foreign commerce. It can be conducted upon much better terms with a
+ large number of materials of a given value than with a small number
+ of materials of the same value; arising from the competitions of
+ trade and from the fluctations of markets. Particular articles may
+ be in great demand at certain periods, and unsalable at others; but
+ if there be a variety of articles, it can scarcely happen that they
+ should all be at one time in the latter predicament, and on this
+ account the operations of the merchant would be less liable to any
+ considerable obstruction or stagnation. The speculative trader will
+ at once perceive the force of these observations, and will
+ acknowledge that the aggregate balance of the commerce of the United
+ States would bid fair to be much more favorable than that of the
+ thirteen States without union or with partial unions.
+It may perhaps be replied to this, that whether the States are
+ united or disunited, there would still be an intimate intercourse
+ between them which would answer the same ends; this intercourse
+ would be fettered, interrupted, and narrowed by a multiplicity of
+ causes, which in the course of these papers have been amply detailed.
+ A unity of commercial, as well as political, interests, can only
+ result from a unity of government.
+There are other points of view in which this subject might be
+ placed, of a striking and animating kind. But they would lead us
+ too far into the regions of futurity, and would involve topics not
+ proper for a newspaper discussion. I shall briefly observe, that
+ our situation invites and our interests prompt us to aim at an
+ ascendant in the system of American affairs. The world may
+ politically, as well as geographically, be divided into four parts,
+ each having a distinct set of interests. Unhappily for the other
+ three, Europe, by her arms and by her negotiations, by force and by
+ fraud, has, in different degrees, extended her dominion over them
+ all. Africa, Asia, and America, have successively felt her
+ domination. The superiority she has long maintained has tempted her
+ to plume herself as the Mistress of the World, and to consider the
+ rest of mankind as created for her benefit. Men admired as profound
+ philosophers have, in direct terms, attributed to her inhabitants a
+ physical superiority, and have gravely asserted that all animals,
+ and with them the human species, degenerate in America--that even
+ dogs cease to bark after having breathed awhile in our
+ atmosphere.1 Facts have too long supported these arrogant
+ pretensions of the Europeans. It belongs to us to vindicate the
+ honor of the human race, and to teach that assuming brother,
+ moderation. Union will enable us to do it. Disunion will will add
+ another victim to his triumphs. Let Americans disdain to be the
+ instruments of European greatness! Let the thirteen States, bound
+ together in a strict and indissoluble Union, concur in erecting one
+ great American system, superior to the control of all transatlantic
+ force or influence, and able to dictate the terms of the connection
+ between the old and the new world!
+PUBLIUS.
+``Recherches philosophiques sur les Americains.''
+
+
+FEDERALIST No. 12
+
+The Utility of the Union In Respect to Revenue
+From the New York Packet.
+Tuesday, November 27, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+THE effects of Union upon the commercial prosperity of the
+ States have been sufficiently delineated. Its tendency to promote
+ the interests of revenue will be the subject of our present inquiry.
+The prosperity of commerce is now perceived and acknowledged by
+ all enlightened statesmen to be the most useful as well as the most
+ productive source of national wealth, and has accordingly become a
+ primary object of their political cares. By multiplying the means of
+ gratification, by promoting the introduction and circulation of the
+ precious metals, those darling objects of human avarice and
+ enterprise, it serves to vivify and invigorate the channels of
+ industry, and to make them flow with greater activity and
+ copiousness. The assiduous merchant, the laborious husbandman, the
+ active mechanic, and the industrious manufacturer,--all orders of
+ men, look forward with eager expectation and growing alacrity to
+ this pleasing reward of their toils. The often-agitated question
+ between agriculture and commerce has, from indubitable experience,
+ received a decision which has silenced the rivalship that once
+ subsisted between them, and has proved, to the satisfaction of their
+ friends, that their interests are intimately blended and interwoven.
+ It has been found in various countries that, in proportion as
+ commerce has flourished, land has risen in value. And how could it
+ have happened otherwise? Could that which procures a freer vent for
+ the products of the earth, which furnishes new incitements to the
+ cultivation of land, which is the most powerful instrument in
+ increasing the quantity of money in a state--could that, in fine,
+ which is the faithful handmaid of labor and industry, in every
+ shape, fail to augment that article, which is the prolific parent of
+ far the greatest part of the objects upon which they are exerted?
+ It is astonishing that so simple a truth should ever have had an
+ adversary; and it is one, among a multitude of proofs, how apt a
+ spirit of ill-informed jealousy, or of too great abstraction and
+ refinement, is to lead men astray from the plainest truths of reason
+ and conviction.
+The ability of a country to pay taxes must always be
+ proportioned, in a great degree, to the quantity of money in
+ circulation, and to the celerity with which it circulates.
+ Commerce, contributing to both these objects, must of necessity
+ render the payment of taxes easier, and facilitate the requisite
+ supplies to the treasury. The hereditary dominions of the Emperor
+ of Germany contain a great extent of fertile, cultivated, and
+ populous territory, a large proportion of which is situated in mild
+ and luxuriant climates. In some parts of this territory are to be
+ found the best gold and silver mines in Europe. And yet, from the
+ want of the fostering influence of commerce, that monarch can boast
+ but slender revenues. He has several times been compelled to owe
+ obligations to the pecuniary succors of other nations for the
+ preservation of his essential interests, and is unable, upon the
+ strength of his own resources, to sustain a long or continued war.
+But it is not in this aspect of the subject alone that Union
+ will be seen to conduce to the purpose of revenue. There are other
+ points of view, in which its influence will appear more immediate
+ and decisive. It is evident from the state of the country, from the
+ habits of the people, from the experience we have had on the point
+ itself, that it is impracticable to raise any very considerable sums
+ by direct taxation. Tax laws have in vain been multiplied; new
+ methods to enforce the collection have in vain been tried; the
+ public expectation has been uniformly disappointed, and the
+ treasuries of the States have remained empty. The popular system of
+ administration inherent in the nature of popular government,
+ coinciding with the real scarcity of money incident to a languid and
+ mutilated state of trade, has hitherto defeated every experiment for
+ extensive collections, and has at length taught the different
+ legislatures the folly of attempting them.
+No person acquainted with what happens in other countries will
+ be surprised at this circumstance. In so opulent a nation as that
+ of Britain, where direct taxes from superior wealth must be much
+ more tolerable, and, from the vigor of the government, much more
+ practicable, than in America, far the greatest part of the national
+ revenue is derived from taxes of the indirect kind, from imposts,
+ and from excises. Duties on imported articles form a large branch
+ of this latter description.
+In America, it is evident that we must a long time depend for
+ the means of revenue chiefly on such duties. In most parts of it,
+ excises must be confined within a narrow compass. The genius of the
+ people will ill brook the inquisitive and peremptory spirit of
+ excise laws. The pockets of the farmers, on the other hand, will
+ reluctantly yield but scanty supplies, in the unwelcome shape of
+ impositions on their houses and lands; and personal property is too
+ precarious and invisible a fund to be laid hold of in any other way
+ than by the inperceptible agency of taxes on consumption.
+If these remarks have any foundation, that state of things which
+ will best enable us to improve and extend so valuable a resource
+ must be best adapted to our political welfare. And it cannot admit
+ of a serious doubt, that this state of things must rest on the basis
+ of a general Union. As far as this would be conducive to the
+ interests of commerce, so far it must tend to the extension of the
+ revenue to be drawn from that source. As far as it would contribute
+ to rendering regulations for the collection of the duties more
+ simple and efficacious, so far it must serve to answer the purposes
+ of making the same rate of duties more productive, and of putting it
+ into the power of the government to increase the rate without
+ prejudice to trade.
+The relative situation of these States; the number of rivers
+ with which they are intersected, and of bays that wash there shores;
+ the facility of communication in every direction; the affinity of
+ language and manners; the familiar habits of intercourse; --all
+ these are circumstances that would conspire to render an illicit
+ trade between them a matter of little difficulty, and would insure
+ frequent evasions of the commercial regulations of each other. The
+ separate States or confederacies would be necessitated by mutual
+ jealousy to avoid the temptations to that kind of trade by the
+ lowness of their duties. The temper of our governments, for a long
+ time to come, would not permit those rigorous precautions by which
+ the European nations guard the avenues into their respective
+ countries, as well by land as by water; and which, even there, are
+ found insufficient obstacles to the adventurous stratagems of
+ avarice.
+In France, there is an army of patrols (as they are called)
+ constantly employed to secure their fiscal regulations against the
+ inroads of the dealers in contraband trade. Mr. Neckar computes the
+ number of these patrols at upwards of twenty thousand. This shows
+ the immense difficulty in preventing that species of traffic, where
+ there is an inland communication, and places in a strong light the
+ disadvantages with which the collection of duties in this country
+ would be encumbered, if by disunion the States should be placed in a
+ situation, with respect to each other, resembling that of France
+ with respect to her neighbors. The arbitrary and vexatious powers
+ with which the patrols are necessarily armed, would be intolerable
+ in a free country.
+If, on the contrary, there be but one government pervading all
+ the States, there will be, as to the principal part of our commerce,
+ but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly
+ from foreign countries, laden with valuable cargoes, would rarely
+ choose to hazard themselves to the complicated and critical perils
+ which would attend attempts to unlade prior to their coming into
+ port. They would have to dread both the dangers of the coast, and
+ of detection, as well after as before their arrival at the places of
+ their final destination. An ordinary degree of vigilance would be
+ competent to the prevention of any material infractions upon the
+ rights of the revenue. A few armed vessels, judiciously stationed
+ at the entrances of our ports, might at a small expense be made
+ useful sentinels of the laws. And the government having the same
+ interest to provide against violations everywhere, the co-operation
+ of its measures in each State would have a powerful tendency to
+ render them effectual. Here also we should preserve by Union, an
+ advantage which nature holds out to us, and which would be
+ relinquished by separation. The United States lie at a great
+ distance from Europe, and at a considerable distance from all other
+ places with which they would have extensive connections of foreign
+ trade. The passage from them to us, in a few hours, or in a single
+ night, as between the coasts of France and Britain, and of other
+ neighboring nations, would be impracticable. This is a prodigious
+ security against a direct contraband with foreign countries; but a
+ circuitous contraband to one State, through the medium of another,
+ would be both easy and safe. The difference between a direct
+ importation from abroad, and an indirect importation through the
+ channel of a neighboring State, in small parcels, according to time
+ and opportunity, with the additional facilities of inland
+ communication, must be palpable to every man of discernment.
+It is therefore evident, that one national government would be
+ able, at much less expense, to extend the duties on imports, beyond
+ comparison, further than would be practicable to the States
+ separately, or to any partial confederacies. Hitherto, I believe,
+ it may safely be asserted, that these duties have not upon an
+ average exceeded in any State three per cent. In France they are
+ estimated to be about fifteen per cent., and in Britain they exceed
+ this proportion.1 There seems to be nothing to hinder their
+ being increased in this country to at least treble their present
+ amount. The single article of ardent spirits, under federal
+ regulation, might be made to furnish a considerable revenue. Upon a
+ ratio to the importation into this State, the whole quantity
+ imported into the United States may be estimated at four millions of
+ gallons; which, at a shilling per gallon, would produce two hundred
+ thousand pounds. That article would well bear this rate of duty;
+ and if it should tend to diminish the consumption of it, such an
+ effect would be equally favorable to the agriculture, to the
+ economy, to the morals, and to the health of the society. There is,
+ perhaps, nothing so much a subject of national extravagance as these
+ spirits.
+What will be the consequence, if we are not able to avail
+ ourselves of the resource in question in its full extent? A nation
+ cannot long exist without revenues. Destitute of this essential
+ support, it must resign its independence, and sink into the degraded
+ condition of a province. This is an extremity to which no
+ government will of choice accede. Revenue, therefore, must be had
+ at all events. In this country, if the principal part be not drawn
+ from commerce, it must fall with oppressive weight upon land. It
+ has been already intimated that excises, in their true
+ signification, are too little in unison with the feelings of the
+ people, to admit of great use being made of that mode of taxation;
+ nor, indeed, in the States where almost the sole employment is
+ agriculture, are the objects proper for excise sufficiently numerous
+ to permit very ample collections in that way. Personal estate (as
+ has been before remarked), from the difficulty in tracing it, cannot
+ be subjected to large contributions, by any other means than by
+ taxes on consumption. In populous cities, it may be enough the
+ subject of conjecture, to occasion the oppression of individuals,
+ without much aggregate benefit to the State; but beyond these
+ circles, it must, in a great measure, escape the eye and the hand of
+ the tax-gatherer. As the necessities of the State, nevertheless,
+ must be satisfied in some mode or other, the defect of other
+ resources must throw the principal weight of public burdens on the
+ possessors of land. And as, on the other hand, the wants of the
+ government can never obtain an adequate supply, unless all the
+ sources of revenue are open to its demands, the finances of the
+ community, under such embarrassments, cannot be put into a situation
+ consistent with its respectability or its security. Thus we shall
+ not even have the consolations of a full treasury, to atone for the
+ oppression of that valuable class of the citizens who are employed
+ in the cultivation of the soil. But public and private distress
+ will keep pace with each other in gloomy concert; and unite in
+ deploring the infatuation of those counsels which led to disunion.
+PUBLIUS.
+1 If my memory be right they amount to twenty per cent.
+
+
+FEDERALIST No. 13
+
+Advantage of the Union in Respect to Economy in Government
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+As CONNECTED with the subject of revenue, we may with propriety
+ consider that of economy. The money saved from one object may be
+ usefully applied to another, and there will be so much the less to
+ be drawn from the pockets of the people. If the States are united
+ under one government, there will be but one national civil list to
+ support; if they are divided into several confederacies, there will
+ be as many different national civil lists to be provided for--and
+ each of them, as to the principal departments, coextensive with that
+ which would be necessary for a government of the whole. The entire
+ separation of the States into thirteen unconnected sovereignties is
+ a project too extravagant and too replete with danger to have many
+ advocates. The ideas of men who speculate upon the dismemberment of
+ the empire seem generally turned toward three confederacies--one
+ consisting of the four Northern, another of the four Middle, and a
+ third of the five Southern States. There is little probability that
+ there would be a greater number. According to this distribution,
+ each confederacy would comprise an extent of territory larger than
+ that of the kingdom of Great Britain. No well-informed man will
+ suppose that the affairs of such a confederacy can be properly
+ regulated by a government less comprehensive in its organs or
+ institutions than that which has been proposed by the convention.
+ When the dimensions of a State attain to a certain magnitude, it
+ requires the same energy of government and the same forms of
+ administration which are requisite in one of much greater extent.
+ This idea admits not of precise demonstration, because there is no
+ rule by which we can measure the momentum of civil power necessary
+ to the government of any given number of individuals; but when we
+ consider that the island of Britain, nearly commensurate with each
+ of the supposed confederacies, contains about eight millions of
+ people, and when we reflect upon the degree of authority required to
+ direct the passions of so large a society to the public good, we
+ shall see no reason to doubt that the like portion of power would be
+ sufficient to perform the same task in a society far more numerous.
+ Civil power, properly organized and exerted, is capable of
+ diffusing its force to a very great extent; and can, in a manner,
+ reproduce itself in every part of a great empire by a judicious
+ arrangement of subordinate institutions.
+The supposition that each confederacy into which the States
+ would be likely to be divided would require a government not less
+ comprehensive than the one proposed, will be strengthened by another
+ supposition, more probable than that which presents us with three
+ confederacies as the alternative to a general Union. If we attend
+ carefully to geographical and commercial considerations, in
+ conjunction with the habits and prejudices of the different States,
+ we shall be led to conclude that in case of disunion they will most
+ naturally league themselves under two governments. The four Eastern
+ States, from all the causes that form the links of national sympathy
+ and connection, may with certainty be expected to unite. New York,
+ situated as she is, would never be unwise enough to oppose a feeble
+ and unsupported flank to the weight of that confederacy. There are
+ other obvious reasons that would facilitate her accession to it.
+ New Jersey is too small a State to think of being a frontier, in
+ opposition to this still more powerful combination; nor do there
+ appear to be any obstacles to her admission into it. Even
+ Pennsylvania would have strong inducements to join the Northern
+ league. An active foreign commerce, on the basis of her own
+ navigation, is her true policy, and coincides with the opinions and
+ dispositions of her citizens. The more Southern States, from
+ various circumstances, may not think themselves much interested in
+ the encouragement of navigation. They may prefer a system which
+ would give unlimited scope to all nations to be the carriers as well
+ as the purchasers of their commodities. Pennsylvania may not choose
+ to confound her interests in a connection so adverse to her policy.
+ As she must at all events be a frontier, she may deem it most
+ consistent with her safety to have her exposed side turned towards
+ the weaker power of the Southern, rather than towards the stronger
+ power of the Northern, Confederacy. This would give her the fairest
+ chance to avoid being the Flanders of America. Whatever may be the
+ determination of Pennsylvania, if the Northern Confederacy includes
+ New Jersey, there is no likelihood of more than one confederacy to
+ the south of that State.
+Nothing can be more evident than that the thirteen States will
+ be able to support a national government better than one half, or
+ one third, or any number less than the whole. This reflection must
+ have great weight in obviating that objection to the proposed plan,
+ which is founded on the principle of expense; an objection,
+ however, which, when we come to take a nearer view of it, will
+ appear in every light to stand on mistaken ground.
+If, in addition to the consideration of a plurality of civil
+ lists, we take into view the number of persons who must necessarily
+ be employed to guard the inland communication between the different
+ confederacies against illicit trade, and who in time will infallibly
+ spring up out of the necessities of revenue; and if we also take
+ into view the military establishments which it has been shown would
+ unavoidably result from the jealousies and conflicts of the several
+ nations into which the States would be divided, we shall clearly
+ discover that a separation would be not less injurious to the
+ economy, than to the tranquillity, commerce, revenue, and liberty of
+ every part.
+PUBLIUS.
+
+
+FEDERALIST No. 14
+
+Objections to the Proposed Constitution From Extent of Territory
+ Answered
+From the New York Packet.
+Friday, November 30, 1787.
+
+MADISON
+
+To the People of the State of New York:
+WE HAVE seen the necessity of the Union, as our bulwark against
+ foreign danger, as the conservator of peace among ourselves, as the
+ guardian of our commerce and other common interests, as the only
+ substitute for those military establishments which have subverted
+ the liberties of the Old World, and as the proper antidote for the
+ diseases of faction, which have proved fatal to other popular
+ governments, and of which alarming symptoms have been betrayed by
+ our own. All that remains, within this branch of our inquiries, is
+ to take notice of an objection that may be drawn from the great
+ extent of country which the Union embraces. A few observations on
+ this subject will be the more proper, as it is perceived that the
+ adversaries of the new Constitution are availing themselves of the
+ prevailing prejudice with regard to the practicable sphere of
+ republican administration, in order to supply, by imaginary
+ difficulties, the want of those solid objections which they endeavor
+ in vain to find.
+The error which limits republican government to a narrow
+ district has been unfolded and refuted in preceding papers. I
+ remark here only that it seems to owe its rise and prevalence
+ chiefly to the confounding of a republic with a democracy, applying
+ to the former reasonings drawn from the nature of the latter. The
+ true distinction between these forms was also adverted to on a
+ former occasion. It is, that in a democracy, the people meet and
+ exercise the government in person; in a republic, they assemble and
+ administer it by their representatives and agents. A democracy,
+ consequently, will be confined to a small spot. A republic may be
+ extended over a large region.
+To this accidental source of the error may be added the artifice
+ of some celebrated authors, whose writings have had a great share in
+ forming the modern standard of political opinions. Being subjects
+ either of an absolute or limited monarchy, they have endeavored to
+ heighten the advantages, or palliate the evils of those forms, by
+ placing in comparison the vices and defects of the republican, and
+ by citing as specimens of the latter the turbulent democracies of
+ ancient Greece and modern Italy. Under the confusion of names, it
+ has been an easy task to transfer to a republic observations
+ applicable to a democracy only; and among others, the observation
+ that it can never be established but among a small number of people,
+ living within a small compass of territory.
+Such a fallacy may have been the less perceived, as most of the
+ popular governments of antiquity were of the democratic species;
+ and even in modern Europe, to which we owe the great principle of
+ representation, no example is seen of a government wholly popular,
+ and founded, at the same time, wholly on that principle. If Europe
+ has the merit of discovering this great mechanical power in
+ government, by the simple agency of which the will of the largest
+ political body may be concentred, and its force directed to any
+ object which the public good requires, America can claim the merit
+ of making the discovery the basis of unmixed and extensive republics.
+ It is only to be lamented that any of her citizens should wish to
+ deprive her of the additional merit of displaying its full efficacy
+ in the establishment of the comprehensive system now under her
+ consideration.
+As the natural limit of a democracy is that distance from the
+ central point which will just permit the most remote citizens to
+ assemble as often as their public functions demand, and will include
+ no greater number than can join in those functions; so the natural
+ limit of a republic is that distance from the centre which will
+ barely allow the representatives to meet as often as may be
+ necessary for the administration of public affairs. Can it be said
+ that the limits of the United States exceed this distance? It will
+ not be said by those who recollect that the Atlantic coast is the
+ longest side of the Union, that during the term of thirteen years,
+ the representatives of the States have been almost continually
+ assembled, and that the members from the most distant States are not
+ chargeable with greater intermissions of attendance than those from
+ the States in the neighborhood of Congress.
+That we may form a juster estimate with regard to this
+ interesting subject, let us resort to the actual dimensions of the
+ Union. The limits, as fixed by the treaty of peace, are: on the
+ east the Atlantic, on the south the latitude of thirty-one degrees,
+ on the west the Mississippi, and on the north an irregular line
+ running in some instances beyond the forty-fifth degree, in others
+ falling as low as the forty-second. The southern shore of Lake Erie
+ lies below that latitude. Computing the distance between the
+ thirty-first and forty-fifth degrees, it amounts to nine hundred and
+ seventy-three common miles; computing it from thirty-one to
+ forty-two degrees, to seven hundred and sixty-four miles and a half.
+ Taking the mean for the distance, the amount will be eight hundred
+ and sixty-eight miles and three-fourths. The mean distance from the
+ Atlantic to the Mississippi does not probably exceed seven hundred
+ and fifty miles. On a comparison of this extent with that of
+ several countries in Europe, the practicability of rendering our
+ system commensurate to it appears to be demonstrable. It is not a
+ great deal larger than Germany, where a diet representing the whole
+ empire is continually assembled; or than Poland before the late
+ dismemberment, where another national diet was the depositary of the
+ supreme power. Passing by France and Spain, we find that in Great
+ Britain, inferior as it may be in size, the representatives of the
+ northern extremity of the island have as far to travel to the
+ national council as will be required of those of the most remote
+ parts of the Union.
+Favorable as this view of the subject may be, some observations
+ remain which will place it in a light still more satisfactory.
+In the first place it is to be remembered that the general
+ government is not to be charged with the whole power of making and
+ administering laws. Its jurisdiction is limited to certain
+ enumerated objects, which concern all the members of the republic,
+ but which are not to be attained by the separate provisions of any.
+ The subordinate governments, which can extend their care to all
+ those other subjects which can be separately provided for, will
+ retain their due authority and activity. Were it proposed by the
+ plan of the convention to abolish the governments of the particular
+ States, its adversaries would have some ground for their objection;
+ though it would not be difficult to show that if they were
+ abolished the general government would be compelled, by the
+ principle of self-preservation, to reinstate them in their proper
+ jurisdiction.
+A second observation to be made is that the immediate object of
+ the federal Constitution is to secure the union of the thirteen
+ primitive States, which we know to be practicable; and to add to
+ them such other States as may arise in their own bosoms, or in their
+ neighborhoods, which we cannot doubt to be equally practicable. The
+ arrangements that may be necessary for those angles and fractions of
+ our territory which lie on our northwestern frontier, must be left
+ to those whom further discoveries and experience will render more
+ equal to the task.
+Let it be remarked, in the third place, that the intercourse
+ throughout the Union will be facilitated by new improvements. Roads
+ will everywhere be shortened, and kept in better order;
+ accommodations for travelers will be multiplied and meliorated; an
+ interior navigation on our eastern side will be opened throughout,
+ or nearly throughout, the whole extent of the thirteen States. The
+ communication between the Western and Atlantic districts, and
+ between different parts of each, will be rendered more and more easy
+ by those numerous canals with which the beneficence of nature has
+ intersected our country, and which art finds it so little difficult
+ to connect and complete.
+A fourth and still more important consideration is, that as
+ almost every State will, on one side or other, be a frontier, and
+ will thus find, in regard to its safety, an inducement to make some
+ sacrifices for the sake of the general protection; so the States
+ which lie at the greatest distance from the heart of the Union, and
+ which, of course, may partake least of the ordinary circulation of
+ its benefits, will be at the same time immediately contiguous to
+ foreign nations, and will consequently stand, on particular
+ occasions, in greatest need of its strength and resources. It may
+ be inconvenient for Georgia, or the States forming our western or
+ northeastern borders, to send their representatives to the seat of
+ government; but they would find it more so to struggle alone
+ against an invading enemy, or even to support alone the whole
+ expense of those precautions which may be dictated by the
+ neighborhood of continual danger. If they should derive less
+ benefit, therefore, from the Union in some respects than the less
+ distant States, they will derive greater benefit from it in other
+ respects, and thus the proper equilibrium will be maintained
+ throughout.
+I submit to you, my fellow-citizens, these considerations, in
+ full confidence that the good sense which has so often marked your
+ decisions will allow them their due weight and effect; and that you
+ will never suffer difficulties, however formidable in appearance, or
+ however fashionable the error on which they may be founded, to drive
+ you into the gloomy and perilous scene into which the advocates for
+ disunion would conduct you. Hearken not to the unnatural voice
+ which tells you that the people of America, knit together as they
+ are by so many cords of affection, can no longer live together as
+ members of the same family; can no longer continue the mutual
+ guardians of their mutual happiness; can no longer be
+ fellowcitizens of one great, respectable, and flourishing empire.
+ Hearken not to the voice which petulantly tells you that the form
+ of government recommended for your adoption is a novelty in the
+ political world; that it has never yet had a place in the theories
+ of the wildest projectors; that it rashly attempts what it is
+ impossible to accomplish. No, my countrymen, shut your ears against
+ this unhallowed language. Shut your hearts against the poison which
+ it conveys; the kindred blood which flows in the veins of American
+ citizens, the mingled blood which they have shed in defense of their
+ sacred rights, consecrate their Union, and excite horror at the idea
+ of their becoming aliens, rivals, enemies. And if novelties are to
+ be shunned, believe me, the most alarming of all novelties, the most
+ wild of all projects, the most rash of all attempts, is that of
+ rendering us in pieces, in order to preserve our liberties and
+ promote our happiness. But why is the experiment of an extended
+ republic to be rejected, merely because it may comprise what is new?
+ Is it not the glory of the people of America, that, whilst they
+ have paid a decent regard to the opinions of former times and other
+ nations, they have not suffered a blind veneration for antiquity,
+ for custom, or for names, to overrule the suggestions of their own
+ good sense, the knowledge of their own situation, and the lessons of
+ their own experience? To this manly spirit, posterity will be
+ indebted for the possession, and the world for the example, of the
+ numerous innovations displayed on the American theatre, in favor of
+ private rights and public happiness. Had no important step been
+ taken by the leaders of the Revolution for which a precedent could
+ not be discovered, no government established of which an exact model
+ did not present itself, the people of the United States might, at
+ this moment have been numbered among the melancholy victims of
+ misguided councils, must at best have been laboring under the weight
+ of some of those forms which have crushed the liberties of the rest
+ of mankind. Happily for America, happily, we trust, for the whole
+ human race, they pursued a new and more noble course. They
+ accomplished a revolution which has no parallel in the annals of
+ human society. They reared the fabrics of governments which have no
+ model on the face of the globe. They formed the design of a great
+ Confederacy, which it is incumbent on their successors to improve
+ and perpetuate. If their works betray imperfections, we wonder at
+ the fewness of them. If they erred most in the structure of the
+ Union, this was the work most difficult to be executed; this is the
+ work which has been new modelled by the act of your convention, and
+ it is that act on which you are now to deliberate and to decide.
+PUBLIUS.
+
+
+FEDERALIST No. 15
+
+The Insufficiency of the Present Confederation to Preserve the
+ Union
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York.
+IN THE course of the preceding papers, I have endeavored, my
+ fellow-citizens, to place before you, in a clear and convincing
+ light, the importance of Union to your political safety and
+ happiness. I have unfolded to you a complication of dangers to
+ which you would be exposed, should you permit that sacred knot which
+ binds the people of America together be severed or dissolved by
+ ambition or by avarice, by jealousy or by misrepresentation. In the
+ sequel of the inquiry through which I propose to accompany you, the
+ truths intended to be inculcated will receive further confirmation
+ from facts and arguments hitherto unnoticed. If the road over which
+ you will still have to pass should in some places appear to you
+ tedious or irksome, you will recollect that you are in quest of
+ information on a subject the most momentous which can engage the
+ attention of a free people, that the field through which you have to
+ travel is in itself spacious, and that the difficulties of the
+ journey have been unnecessarily increased by the mazes with which
+ sophistry has beset the way. It will be my aim to remove the
+ obstacles from your progress in as compendious a manner as it can be
+ done, without sacrificing utility to despatch.
+In pursuance of the plan which I have laid down for the
+ discussion of the subject, the point next in order to be examined is
+ the ``insufficiency of the present Confederation to the preservation
+ of the Union.'' It may perhaps be asked what need there is of
+ reasoning or proof to illustrate a position which is not either
+ controverted or doubted, to which the understandings and feelings of
+ all classes of men assent, and which in substance is admitted by the
+ opponents as well as by the friends of the new Constitution. It
+ must in truth be acknowledged that, however these may differ in
+ other respects, they in general appear to harmonize in this
+ sentiment, at least, that there are material imperfections in our
+ national system, and that something is necessary to be done to
+ rescue us from impending anarchy. The facts that support this
+ opinion are no longer objects of speculation. They have forced
+ themselves upon the sensibility of the people at large, and have at
+ length extorted from those, whose mistaken policy has had the
+ principal share in precipitating the extremity at which we are
+ arrived, a reluctant confession of the reality of those defects in
+ the scheme of our federal government, which have been long pointed
+ out and regretted by the intelligent friends of the Union.
+We may indeed with propriety be said to have reached almost the
+ last stage of national humiliation. There is scarcely anything that
+ can wound the pride or degrade the character of an independent
+ nation which we do not experience. Are there engagements to the
+ performance of which we are held by every tie respectable among men?
+ These are the subjects of constant and unblushing violation. Do we
+ owe debts to foreigners and to our own citizens contracted in a time
+ of imminent peril for the preservation of our political existence?
+ These remain without any proper or satisfactory provision for their
+ discharge. Have we valuable territories and important posts in the
+ possession of a foreign power which, by express stipulations, ought
+ long since to have been surrendered? These are still retained, to
+ the prejudice of our interests, not less than of our rights. Are we
+ in a condition to resent or to repel the aggression? We have
+ neither troops, nor treasury, nor government.1 Are we even in a
+ condition to remonstrate with dignity? The just imputations on our
+ own faith, in respect to the same treaty, ought first to be removed.
+ Are we entitled by nature and compact to a free participation in
+ the navigation of the Mississippi? Spain excludes us from it. Is
+ public credit an indispensable resource in time of public danger?
+ We seem to have abandoned its cause as desperate and irretrievable.
+ Is commerce of importance to national wealth? Ours is at the
+ lowest point of declension. Is respectability in the eyes of
+ foreign powers a safeguard against foreign encroachments? The
+ imbecility of our government even forbids them to treat with us.
+ Our ambassadors abroad are the mere pageants of mimic sovereignty.
+ Is a violent and unnatural decrease in the value of land a symptom
+ of national distress? The price of improved land in most parts of
+ the country is much lower than can be accounted for by the quantity
+ of waste land at market, and can only be fully explained by that
+ want of private and public confidence, which are so alarmingly
+ prevalent among all ranks, and which have a direct tendency to
+ depreciate property of every kind. Is private credit the friend and
+ patron of industry? That most useful kind which relates to
+ borrowing and lending is reduced within the narrowest limits, and
+ this still more from an opinion of insecurity than from the scarcity
+ of money. To shorten an enumeration of particulars which can afford
+ neither pleasure nor instruction, it may in general be demanded,
+ what indication is there of national disorder, poverty, and
+ insignificance that could befall a community so peculiarly blessed
+ with natural advantages as we are, which does not form a part of the
+ dark catalogue of our public misfortunes?
+This is the melancholy situation to which we have been brought
+ by those very maxims and councils which would now deter us from
+ adopting the proposed Constitution; and which, not content with
+ having conducted us to the brink of a precipice, seem resolved to
+ plunge us into the abyss that awaits us below. Here, my countrymen,
+ impelled by every motive that ought to influence an enlightened
+ people, let us make a firm stand for our safety, our tranquillity,
+ our dignity, our reputation. Let us at last break the fatal charm
+ which has too long seduced us from the paths of felicity and
+ prosperity.
+It is true, as has been before observed that facts, too stubborn
+ to be resisted, have produced a species of general assent to the
+ abstract proposition that there exist material defects in our
+ national system; but the usefulness of the concession, on the part
+ of the old adversaries of federal measures, is destroyed by a
+ strenuous opposition to a remedy, upon the only principles that can
+ give it a chance of success. While they admit that the government
+ of the United States is destitute of energy, they contend against
+ conferring upon it those powers which are requisite to supply that
+ energy. They seem still to aim at things repugnant and
+ irreconcilable; at an augmentation of federal authority, without a
+ diminution of State authority; at sovereignty in the Union, and
+ complete independence in the members. They still, in fine, seem to
+ cherish with blind devotion the political monster of an imperium
+ in imperio. This renders a full display of the principal defects
+ of the Confederation necessary, in order to show that the evils we
+ experience do not proceed from minute or partial imperfections, but
+ from fundamental errors in the structure of the building, which
+ cannot be amended otherwise than by an alteration in the first
+ principles and main pillars of the fabric.
+The great and radical vice in the construction of the existing
+ Confederation is in the principle of LEGISLATION for STATES or
+ GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as
+ contradistinguished from the INDIVIDUALS of which they consist.
+ Though this principle does not run through all the powers delegated
+ to the Union, yet it pervades and governs those on which the
+ efficacy of the rest depends. Except as to the rule of appointment,
+ the United States has an indefinite discretion to make requisitions
+ for men and money; but they have no authority to raise either, by
+ regulations extending to the individual citizens of America. The
+ consequence of this is, that though in theory their resolutions
+ concerning those objects are laws, constitutionally binding on the
+ members of the Union, yet in practice they are mere recommendations
+ which the States observe or disregard at their option.
+It is a singular instance of the capriciousness of the human
+ mind, that after all the admonitions we have had from experience on
+ this head, there should still be found men who object to the new
+ Constitution, for deviating from a principle which has been found
+ the bane of the old, and which is in itself evidently incompatible
+ with the idea of GOVERNMENT; a principle, in short, which, if it is
+ to be executed at all, must substitute the violent and sanguinary
+ agency of the sword to the mild influence of the magistracy.
+There is nothing absurd or impracticable in the idea of a league
+ or alliance between independent nations for certain defined purposes
+ precisely stated in a treaty regulating all the details of time,
+ place, circumstance, and quantity; leaving nothing to future
+ discretion; and depending for its execution on the good faith of
+ the parties. Compacts of this kind exist among all civilized
+ nations, subject to the usual vicissitudes of peace and war, of
+ observance and non-observance, as the interests or passions of the
+ contracting powers dictate. In the early part of the present
+ century there was an epidemical rage in Europe for this species of
+ compacts, from which the politicians of the times fondly hoped for
+ benefits which were never realized. With a view to establishing the
+ equilibrium of power and the peace of that part of the world, all
+ the resources of negotiation were exhausted, and triple and
+ quadruple alliances were formed; but they were scarcely formed
+ before they were broken, giving an instructive but afflicting lesson
+ to mankind, how little dependence is to be placed on treaties which
+ have no other sanction than the obligations of good faith, and which
+ oppose general considerations of peace and justice to the impulse of
+ any immediate interest or passion.
+If the particular States in this country are disposed to stand
+ in a similar relation to each other, and to drop the project of a
+ general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be
+ pernicious, and would entail upon us all the mischiefs which have
+ been enumerated under the first head; but it would have the merit
+ of being, at least, consistent and practicable Abandoning all views
+ towards a confederate government, this would bring us to a simple
+ alliance offensive and defensive; and would place us in a situation
+ to be alternate friends and enemies of each other, as our mutual
+ jealousies and rivalships, nourished by the intrigues of foreign
+ nations, should prescribe to us.
+But if we are unwilling to be placed in this perilous situation;
+ if we still will adhere to the design of a national government, or,
+ which is the same thing, of a superintending power, under the
+ direction of a common council, we must resolve to incorporate into
+ our plan those ingredients which may be considered as forming the
+ characteristic difference between a league and a government; we
+ must extend the authority of the Union to the persons of the
+ citizens, --the only proper objects of government.
+Government implies the power of making laws. It is essential to
+ the idea of a law, that it be attended with a sanction; or, in
+ other words, a penalty or punishment for disobedience. If there be
+ no penalty annexed to disobedience, the resolutions or commands
+ which pretend to be laws will, in fact, amount to nothing more than
+ advice or recommendation. This penalty, whatever it may be, can
+ only be inflicted in two ways: by the agency of the courts and
+ ministers of justice, or by military force; by the COERCION of the
+ magistracy, or by the COERCION of arms. The first kind can
+ evidently apply only to men; the last kind must of necessity, be
+ employed against bodies politic, or communities, or States. It is
+ evident that there is no process of a court by which the observance
+ of the laws can, in the last resort, be enforced. Sentences may be
+ denounced against them for violations of their duty; but these
+ sentences can only be carried into execution by the sword. In an
+ association where the general authority is confined to the
+ collective bodies of the communities, that compose it, every breach
+ of the laws must involve a state of war; and military execution
+ must become the only instrument of civil obedience. Such a state of
+ things can certainly not deserve the name of government, nor would
+ any prudent man choose to commit his happiness to it.
+There was a time when we were told that breaches, by the States,
+ of the regulations of the federal authority were not to be expected;
+ that a sense of common interest would preside over the conduct of
+ the respective members, and would beget a full compliance with all
+ the constitutional requisitions of the Union. This language, at the
+ present day, would appear as wild as a great part of what we now
+ hear from the same quarter will be thought, when we shall have
+ received further lessons from that best oracle of wisdom, experience.
+ It at all times betrayed an ignorance of the true springs by which
+ human conduct is actuated, and belied the original inducements to
+ the establishment of civil power. Why has government been
+ instituted at all? Because the passions of men will not conform to
+ the dictates of reason and justice, without constraint. Has it been
+ found that bodies of men act with more rectitude or greater
+ disinterestedness than individuals? The contrary of this has been
+ inferred by all accurate observers of the conduct of mankind; and
+ the inference is founded upon obvious reasons. Regard to reputation
+ has a less active influence, when the infamy of a bad action is to
+ be divided among a number than when it is to fall singly upon one.
+ A spirit of faction, which is apt to mingle its poison in the
+ deliberations of all bodies of men, will often hurry the persons of
+ whom they are composed into improprieties and excesses, for which
+ they would blush in a private capacity.
+In addition to all this, there is, in the nature of sovereign
+ power, an impatience of control, that disposes those who are
+ invested with the exercise of it, to look with an evil eye upon all
+ external attempts to restrain or direct its operations. From this
+ spirit it happens, that in every political association which is
+ formed upon the principle of uniting in a common interest a number
+ of lesser sovereignties, there will be found a kind of eccentric
+ tendency in the subordinate or inferior orbs, by the operation of
+ which there will be a perpetual effort in each to fly off from the
+ common centre. This tendency is not difficult to be accounted for.
+ It has its origin in the love of power. Power controlled or
+ abridged is almost always the rival and enemy of that power by which
+ it is controlled or abridged. This simple proposition will teach us
+ how little reason there is to expect, that the persons intrusted
+ with the administration of the affairs of the particular members of
+ a confederacy will at all times be ready, with perfect good-humor,
+ and an unbiased regard to the public weal, to execute the
+ resolutions or decrees of the general authority. The reverse of
+ this results from the constitution of human nature.
+If, therefore, the measures of the Confederacy cannot be
+ executed without the intervention of the particular administrations,
+ there will be little prospect of their being executed at all. The
+ rulers of the respective members, whether they have a constitutional
+ right to do it or not, will undertake to judge of the propriety of
+ the measures themselves. They will consider the conformity of the
+ thing proposed or required to their immediate interests or aims;
+ the momentary conveniences or inconveniences that would attend its
+ adoption. All this will be done; and in a spirit of interested and
+ suspicious scrutiny, without that knowledge of national
+ circumstances and reasons of state, which is essential to a right
+ judgment, and with that strong predilection in favor of local
+ objects, which can hardly fail to mislead the decision. The same
+ process must be repeated in every member of which the body is
+ constituted; and the execution of the plans, framed by the councils
+ of the whole, will always fluctuate on the discretion of the
+ ill-informed and prejudiced opinion of every part. Those who have
+ been conversant in the proceedings of popular assemblies; who have
+ seen how difficult it often is, where there is no exterior pressure
+ of circumstances, to bring them to harmonious resolutions on
+ important points, will readily conceive how impossible it must be to
+ induce a number of such assemblies, deliberating at a distance from
+ each other, at different times, and under different impressions,
+ long to co-operate in the same views and pursuits.
+In our case, the concurrence of thirteen distinct sovereign
+ wills is requisite, under the Confederation, to the complete
+ execution of every important measure that proceeds from the Union.
+ It has happened as was to have been foreseen. The measures of the
+ Union have not been executed; the delinquencies of the States have,
+ step by step, matured themselves to an extreme, which has, at
+ length, arrested all the wheels of the national government, and
+ brought them to an awful stand. Congress at this time scarcely
+ possess the means of keeping up the forms of administration, till
+ the States can have time to agree upon a more substantial substitute
+ for the present shadow of a federal government. Things did not come
+ to this desperate extremity at once. The causes which have been
+ specified produced at first only unequal and disproportionate
+ degrees of compliance with the requisitions of the Union. The
+ greater deficiencies of some States furnished the pretext of example
+ and the temptation of interest to the complying, or to the least
+ delinquent States. Why should we do more in proportion than those
+ who are embarked with us in the same political voyage? Why should
+ we consent to bear more than our proper share of the common burden?
+ These were suggestions which human selfishness could not withstand,
+ and which even speculative men, who looked forward to remote
+ consequences, could not, without hesitation, combat. Each State,
+ yielding to the persuasive voice of immediate interest or
+ convenience, has successively withdrawn its support, till the frail
+ and tottering edifice seems ready to fall upon our heads, and to
+ crush us beneath its ruins.
+PUBLIUS.
+1 ``I mean for the Union.''
+
+
+FEDERALIST No. 16
+
+The Same Subject Continued
+(The Insufficiency of the Present Confederation to Preserve the
+ Union)
+From the New York Packet.
+Tuesday, December 4, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+THE tendency of the principle of legislation for States, or
+ communities, in their political capacities, as it has been
+ exemplified by the experiment we have made of it, is equally
+ attested by the events which have befallen all other governments of
+ the confederate kind, of which we have any account, in exact
+ proportion to its prevalence in those systems. The confirmations of
+ this fact will be worthy of a distinct and particular examination.
+ I shall content myself with barely observing here, that of all the
+ confederacies of antiquity, which history has handed down to us, the
+ Lycian and Achaean leagues, as far as there remain vestiges of them,
+ appear to have been most free from the fetters of that mistaken
+ principle, and were accordingly those which have best deserved, and
+ have most liberally received, the applauding suffrages of political
+ writers.
+This exceptionable principle may, as truly as emphatically, be
+ styled the parent of anarchy: It has been seen that delinquencies
+ in the members of the Union are its natural and necessary offspring;
+ and that whenever they happen, the only constitutional remedy is
+ force, and the immediate effect of the use of it, civil war.
+It remains to inquire how far so odious an engine of government,
+ in its application to us, would even be capable of answering its end.
+ If there should not be a large army constantly at the disposal of
+ the national government it would either not be able to employ force
+ at all, or, when this could be done, it would amount to a war
+ between parts of the Confederacy concerning the infractions of a
+ league, in which the strongest combination would be most likely to
+ prevail, whether it consisted of those who supported or of those who
+ resisted the general authority. It would rarely happen that the
+ delinquency to be redressed would be confined to a single member,
+ and if there were more than one who had neglected their duty,
+ similarity of situation would induce them to unite for common
+ defense. Independent of this motive of sympathy, if a large and
+ influential State should happen to be the aggressing member, it
+ would commonly have weight enough with its neighbors to win over
+ some of them as associates to its cause. Specious arguments of
+ danger to the common liberty could easily be contrived; plausible
+ excuses for the deficiencies of the party could, without difficulty,
+ be invented to alarm the apprehensions, inflame the passions, and
+ conciliate the good-will, even of those States which were not
+ chargeable with any violation or omission of duty. This would be
+ the more likely to take place, as the delinquencies of the larger
+ members might be expected sometimes to proceed from an ambitious
+ premeditation in their rulers, with a view to getting rid of all
+ external control upon their designs of personal aggrandizement; the
+ better to effect which it is presumable they would tamper beforehand
+ with leading individuals in the adjacent States. If associates
+ could not be found at home, recourse would be had to the aid of
+ foreign powers, who would seldom be disinclined to encouraging the
+ dissensions of a Confederacy, from the firm union of which they had
+ so much to fear. When the sword is once drawn, the passions of men
+ observe no bounds of moderation. The suggestions of wounded pride,
+ the instigations of irritated resentment, would be apt to carry the
+ States against which the arms of the Union were exerted, to any
+ extremes necessary to avenge the affront or to avoid the disgrace of
+ submission. The first war of this kind would probably terminate in
+ a dissolution of the Union.
+This may be considered as the violent death of the Confederacy.
+ Its more natural death is what we now seem to be on the point of
+ experiencing, if the federal system be not speedily renovated in a
+ more substantial form. It is not probable, considering the genius
+ of this country, that the complying States would often be inclined
+ to support the authority of the Union by engaging in a war against
+ the non-complying States. They would always be more ready to pursue
+ the milder course of putting themselves upon an equal footing with
+ the delinquent members by an imitation of their example. And the
+ guilt of all would thus become the security of all. Our past
+ experience has exhibited the operation of this spirit in its full
+ light. There would, in fact, be an insuperable difficulty in
+ ascertaining when force could with propriety be employed. In the
+ article of pecuniary contribution, which would be the most usual
+ source of delinquency, it would often be impossible to decide
+ whether it had proceeded from disinclination or inability. The
+ pretense of the latter would always be at hand. And the case must
+ be very flagrant in which its fallacy could be detected with
+ sufficient certainty to justify the harsh expedient of compulsion.
+ It is easy to see that this problem alone, as often as it should
+ occur, would open a wide field for the exercise of factious views,
+ of partiality, and of oppression, in the majority that happened to
+ prevail in the national council.
+It seems to require no pains to prove that the States ought not
+ to prefer a national Constitution which could only be kept in motion
+ by the instrumentality of a large army continually on foot to
+ execute the ordinary requisitions or decrees of the government. And
+ yet this is the plain alternative involved by those who wish to deny
+ it the power of extending its operations to individuals. Such a
+ scheme, if practicable at all, would instantly degenerate into a
+ military despotism; but it will be found in every light
+ impracticable. The resources of the Union would not be equal to the
+ maintenance of an army considerable enough to confine the larger
+ States within the limits of their duty; nor would the means ever be
+ furnished of forming such an army in the first instance. Whoever
+ considers the populousness and strength of several of these States
+ singly at the present juncture, and looks forward to what they will
+ become, even at the distance of half a century, will at once dismiss
+ as idle and visionary any scheme which aims at regulating their
+ movements by laws to operate upon them in their collective
+ capacities, and to be executed by a coercion applicable to them in
+ the same capacities. A project of this kind is little less romantic
+ than the monster-taming spirit which is attributed to the fabulous
+ heroes and demi-gods of antiquity.
+Even in those confederacies which have been composed of members
+ smaller than many of our counties, the principle of legislation for
+ sovereign States, supported by military coercion, has never been
+ found effectual. It has rarely been attempted to be employed, but
+ against the weaker members; and in most instances attempts to
+ coerce the refractory and disobedient have been the signals of
+ bloody wars, in which one half of the confederacy has displayed its
+ banners against the other half.
+The result of these observations to an intelligent mind must be
+ clearly this, that if it be possible at any rate to construct a
+ federal government capable of regulating the common concerns and
+ preserving the general tranquillity, it must be founded, as to the
+ objects committed to its care, upon the reverse of the principle
+ contended for by the opponents of the proposed Constitution. It
+ must carry its agency to the persons of the citizens. It must stand
+ in need of no intermediate legislations; but must itself be
+ empowered to employ the arm of the ordinary magistrate to execute
+ its own resolutions. The majesty of the national authority must be
+ manifested through the medium of the courts of justice. The
+ government of the Union, like that of each State, must be able to
+ address itself immediately to the hopes and fears of individuals;
+ and to attract to its support those passions which have the
+ strongest influence upon the human heart. It must, in short,
+ possess all the means, and have aright to resort to all the methods,
+ of executing the powers with which it is intrusted, that are
+ possessed and exercised by the government of the particular States.
+To this reasoning it may perhaps be objected, that if any State
+ should be disaffected to the authority of the Union, it could at any
+ time obstruct the execution of its laws, and bring the matter to the
+ same issue of force, with the necessity of which the opposite scheme
+ is reproached.
+The plausibility of this objection will vanish the moment we
+ advert to the essential difference between a mere NON-COMPLIANCE and
+ a DIRECT and ACTIVE RESISTANCE. If the interposition of the State
+ legislatures be necessary to give effect to a measure of the Union,
+ they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is
+ defeated. This neglect of duty may be disguised under affected but
+ unsubstantial provisions, so as not to appear, and of course not to
+ excite any alarm in the people for the safety of the Constitution.
+ The State leaders may even make a merit of their surreptitious
+ invasions of it on the ground of some temporary convenience,
+ exemption, or advantage.
+But if the execution of the laws of the national government
+ should not require the intervention of the State legislatures, if
+ they were to pass into immediate operation upon the citizens
+ themselves, the particular governments could not interrupt their
+ progress without an open and violent exertion of an unconstitutional
+ power. No omissions nor evasions would answer the end. They would
+ be obliged to act, and in such a manner as would leave no doubt that
+ they had encroached on the national rights. An experiment of this
+ nature would always be hazardous in the face of a constitution in
+ any degree competent to its own defense, and of a people enlightened
+ enough to distinguish between a legal exercise and an illegal
+ usurpation of authority. The success of it would require not merely
+ a factious majority in the legislature, but the concurrence of the
+ courts of justice and of the body of the people. If the judges were
+ not embarked in a conspiracy with the legislature, they would
+ pronounce the resolutions of such a majority to be contrary to the
+ supreme law of the land, unconstitutional, and void. If the people
+ were not tainted with the spirit of their State representatives,
+ they, as the natural guardians of the Constitution, would throw
+ their weight into the national scale and give it a decided
+ preponderancy in the contest. Attempts of this kind would not often
+ be made with levity or rashness, because they could seldom be made
+ without danger to the authors, unless in cases of a tyrannical
+ exercise of the federal authority.
+If opposition to the national government should arise from the
+ disorderly conduct of refractory or seditious individuals, it could
+ be overcome by the same means which are daily employed against the
+ same evil under the State governments. The magistracy, being
+ equally the ministers of the law of the land, from whatever source
+ it might emanate, would doubtless be as ready to guard the national
+ as the local regulations from the inroads of private licentiousness.
+ As to those partial commotions and insurrections, which sometimes
+ disquiet society, from the intrigues of an inconsiderable faction,
+ or from sudden or occasional illhumors that do not infect the great
+ body of the community the general government could command more
+ extensive resources for the suppression of disturbances of that kind
+ than would be in the power of any single member. And as to those
+ mortal feuds which, in certain conjunctures, spread a conflagration
+ through a whole nation, or through a very large proportion of it,
+ proceeding either from weighty causes of discontent given by the
+ government or from the contagion of some violent popular paroxysm,
+ they do not fall within any ordinary rules of calculation. When
+ they happen, they commonly amount to revolutions and dismemberments
+ of empire. No form of government can always either avoid or control
+ them. It is in vain to hope to guard against events too mighty for
+ human foresight or precaution, and it would be idle to object to a
+ government because it could not perform impossibilities.
+PUBLIUS.
+
+
+FEDERALIST No. 17
+
+The Same Subject Continued
+(The Insufficiency of the Present Confederation to Preserve the
+ Union)
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+AN OBJECTION, of a nature different from that which has been
+ stated and answered, in my last address, may perhaps be likewise
+ urged against the principle of legislation for the individual
+ citizens of America. It may be said that it would tend to render
+ the government of the Union too powerful, and to enable it to absorb
+ those residuary authorities, which it might be judged proper to
+ leave with the States for local purposes. Allowing the utmost
+ latitude to the love of power which any reasonable man can require,
+ I confess I am at a loss to discover what temptation the persons
+ intrusted with the administration of the general government could
+ ever feel to divest the States of the authorities of that
+ description. The regulation of the mere domestic police of a State
+ appears to me to hold out slender allurements to ambition.
+ Commerce, finance, negotiation, and war seem to comprehend all the
+ objects which have charms for minds governed by that passion; and
+ all the powers necessary to those objects ought, in the first
+ instance, to be lodged in the national depository. The
+ administration of private justice between the citizens of the same
+ State, the supervision of agriculture and of other concerns of a
+ similar nature, all those things, in short, which are proper to be
+ provided for by local legislation, can never be desirable cares of a
+ general jurisdiction. It is therefore improbable that there should
+ exist a disposition in the federal councils to usurp the powers with
+ which they are connected; because the attempt to exercise those
+ powers would be as troublesome as it would be nugatory; and the
+ possession of them, for that reason, would contribute nothing to the
+ dignity, to the importance, or to the splendor of the national
+ government.
+But let it be admitted, for argument's sake, that mere
+ wantonness and lust of domination would be sufficient to beget that
+ disposition; still it may be safely affirmed, that the sense of the
+ constituent body of the national representatives, or, in other
+ words, the people of the several States, would control the
+ indulgence of so extravagant an appetite. It will always be far
+ more easy for the State governments to encroach upon the national
+ authorities than for the national government to encroach upon the
+ State authorities. The proof of this proposition turns upon the
+ greater degree of influence which the State governments if they
+ administer their affairs with uprightness and prudence, will
+ generally possess over the people; a circumstance which at the same
+ time teaches us that there is an inherent and intrinsic weakness in
+ all federal constitutions; and that too much pains cannot be taken
+ in their organization, to give them all the force which is
+ compatible with the principles of liberty.
+The superiority of influence in favor of the particular
+ governments would result partly from the diffusive construction of
+ the national government, but chiefly from the nature of the objects
+ to which the attention of the State administrations would be
+ directed.
+It is a known fact in human nature, that its affections are
+ commonly weak in proportion to the distance or diffusiveness of the
+ object. Upon the same principle that a man is more attached to his
+ family than to his neighborhood, to his neighborhood than to the
+ community at large, the people of each State would be apt to feel a
+ stronger bias towards their local governments than towards the
+ government of the Union; unless the force of that principle should
+ be destroyed by a much better administration of the latter.
+This strong propensity of the human heart would find powerful
+ auxiliaries in the objects of State regulation.
+The variety of more minute interests, which will necessarily
+ fall under the superintendence of the local administrations, and
+ which will form so many rivulets of influence, running through every
+ part of the society, cannot be particularized, without involving a
+ detail too tedious and uninteresting to compensate for the
+ instruction it might afford.
+There is one transcendant advantage belonging to the province of
+ the State governments, which alone suffices to place the matter in a
+ clear and satisfactory light,--I mean the ordinary administration of
+ criminal and civil justice. This, of all others, is the most
+ powerful, most universal, and most attractive source of popular
+ obedience and attachment. It is that which, being the immediate and
+ visible guardian of life and property, having its benefits and its
+ terrors in constant activity before the public eye, regulating all
+ those personal interests and familiar concerns to which the
+ sensibility of individuals is more immediately awake, contributes,
+ more than any other circumstance, to impressing upon the minds of
+ the people, affection, esteem, and reverence towards the government.
+ This great cement of society, which will diffuse itself almost
+ wholly through the channels of the particular governments,
+ independent of all other causes of influence, would insure them so
+ decided an empire over their respective citizens as to render them
+ at all times a complete counterpoise, and, not unfrequently,
+ dangerous rivals to the power of the Union.
+The operations of the national government, on the other hand,
+ falling less immediately under the observation of the mass of the
+ citizens, the benefits derived from it will chiefly be perceived and
+ attended to by speculative men. Relating to more general interests,
+ they will be less apt to come home to the feelings of the people;
+ and, in proportion, less likely to inspire an habitual sense of
+ obligation, and an active sentiment of attachment.
+The reasoning on this head has been abundantly exemplified by
+ the experience of all federal constitutions with which we are
+ acquainted, and of all others which have borne the least analogy to
+ them.
+Though the ancient feudal systems were not, strictly speaking,
+ confederacies, yet they partook of the nature of that species of
+ association. There was a common head, chieftain, or sovereign,
+ whose authority extended over the whole nation; and a number of
+ subordinate vassals, or feudatories, who had large portions of land
+ allotted to them, and numerous trains of INFERIOR vassals or
+ retainers, who occupied and cultivated that land upon the tenure of
+ fealty or obedience, to the persons of whom they held it. Each
+ principal vassal was a kind of sovereign, within his particular
+ demesnes. The consequences of this situation were a continual
+ opposition to authority of the sovereign, and frequent wars between
+ the great barons or chief feudatories themselves. The power of the
+ head of the nation was commonly too weak, either to preserve the
+ public peace, or to protect the people against the oppressions of
+ their immediate lords. This period of European affairs is
+ emphatically styled by historians, the times of feudal anarchy.
+When the sovereign happened to be a man of vigorous and warlike
+ temper and of superior abilities, he would acquire a personal weight
+ and influence, which answered, for the time, the purpose of a more
+ regular authority. But in general, the power of the barons
+ triumphed over that of the prince; and in many instances his
+ dominion was entirely thrown off, and the great fiefs were erected
+ into independent principalities or States. In those instances in
+ which the monarch finally prevailed over his vassals, his success
+ was chiefly owing to the tyranny of those vassals over their
+ dependents. The barons, or nobles, equally the enemies of the
+ sovereign and the oppressors of the common people, were dreaded and
+ detested by both; till mutual danger and mutual interest effected a
+ union between them fatal to the power of the aristocracy. Had the
+ nobles, by a conduct of clemency and justice, preserved the fidelity
+ and devotion of their retainers and followers, the contests between
+ them and the prince must almost always have ended in their favor,
+ and in the abridgment or subversion of the royal authority.
+This is not an assertion founded merely in speculation or
+ conjecture. Among other illustrations of its truth which might be
+ cited, Scotland will furnish a cogent example. The spirit of
+ clanship which was, at an early day, introduced into that kingdom,
+ uniting the nobles and their dependants by ties equivalent to those
+ of kindred, rendered the aristocracy a constant overmatch for the
+ power of the monarch, till the incorporation with England subdued
+ its fierce and ungovernable spirit, and reduced it within those
+ rules of subordination which a more rational and more energetic
+ system of civil polity had previously established in the latter
+ kingdom.
+The separate governments in a confederacy may aptly be compared
+ with the feudal baronies; with this advantage in their favor, that
+ from the reasons already explained, they will generally possess the
+ confidence and good-will of the people, and with so important a
+ support, will be able effectually to oppose all encroachments of the
+ national government. It will be well if they are not able to
+ counteract its legitimate and necessary authority. The points of
+ similitude consist in the rivalship of power, applicable to both,
+ and in the CONCENTRATION of large portions of the strength of the
+ community into particular DEPOSITS, in one case at the disposal of
+ individuals, in the other case at the disposal of political bodies.
+A concise review of the events that have attended confederate
+ governments will further illustrate this important doctrine; an
+ inattention to which has been the great source of our political
+ mistakes, and has given our jealousy a direction to the wrong side.
+ This review shall form the subject of some ensuing papers.
+PUBLIUS.
+
+
+FEDERALIST No. 18
+
+The Same Subject Continued
+(The Insufficiency of the Present Confederation to Preserve the
+ Union)
+For the Independent Journal.
+
+HAMILTON AND MADISON
+
+To the People of the State of New York:
+AMONG the confederacies of antiquity, the most considerable was
+ that of the Grecian republics, associated under the Amphictyonic
+ council. From the best accounts transmitted of this celebrated
+ institution, it bore a very instructive analogy to the present
+ Confederation of the American States.
+The members retained the character of independent and sovereign
+ states, and had equal votes in the federal council. This council
+ had a general authority to propose and resolve whatever it judged
+ necessary for the common welfare of Greece; to declare and carry on
+ war; to decide, in the last resort, all controversies between the
+ members; to fine the aggressing party; to employ the whole force
+ of the confederacy against the disobedient; to admit new members.
+ The Amphictyons were the guardians of religion, and of the immense
+ riches belonging to the temple of Delphos, where they had the right
+ of jurisdiction in controversies between the inhabitants and those
+ who came to consult the oracle. As a further provision for the
+ efficacy of the federal powers, they took an oath mutually to defend
+ and protect the united cities, to punish the violators of this oath,
+ and to inflict vengeance on sacrilegious despoilers of the temple.
+In theory, and upon paper, this apparatus of powers seems amply
+ sufficient for all general purposes. In several material instances,
+ they exceed the powers enumerated in the articles of confederation.
+ The Amphictyons had in their hands the superstition of the times,
+ one of the principal engines by which government was then
+ maintained; they had a declared authority to use coercion against
+ refractory cities, and were bound by oath to exert this authority on
+ the necessary occasions.
+Very different, nevertheless, was the experiment from the theory.
+ The powers, like those of the present Congress, were administered
+ by deputies appointed wholly by the cities in their political
+ capacities; and exercised over them in the same capacities. Hence
+ the weakness, the disorders, and finally the destruction of the
+ confederacy. The more powerful members, instead of being kept in
+ awe and subordination, tyrannized successively over all the rest.
+ Athens, as we learn from Demosthenes, was the arbiter of Greece
+ seventy-three years. The Lacedaemonians next governed it
+ twenty-nine years; at a subsequent period, after the battle of
+ Leuctra, the Thebans had their turn of domination.
+It happened but too often, according to Plutarch, that the
+ deputies of the strongest cities awed and corrupted those of the
+ weaker; and that judgment went in favor of the most powerful party.
+Even in the midst of defensive and dangerous wars with Persia
+ and Macedon, the members never acted in concert, and were, more or
+ fewer of them, eternally the dupes or the hirelings of the common
+ enemy. The intervals of foreign war were filled up by domestic
+ vicissitudes convulsions, and carnage.
+After the conclusion of the war with Xerxes, it appears that the
+ Lacedaemonians required that a number of the cities should be turned
+ out of the confederacy for the unfaithful part they had acted. The
+ Athenians, finding that the Lacedaemonians would lose fewer
+ partisans by such a measure than themselves, and would become
+ masters of the public deliberations, vigorously opposed and defeated
+ the attempt. This piece of history proves at once the inefficiency
+ of the union, the ambition and jealousy of its most powerful
+ members, and the dependent and degraded condition of the rest. The
+ smaller members, though entitled by the theory of their system to
+ revolve in equal pride and majesty around the common center, had
+ become, in fact, satellites of the orbs of primary magnitude.
+Had the Greeks, says the Abbe Milot, been as wise as they were
+ courageous, they would have been admonished by experience of the
+ necessity of a closer union, and would have availed themselves of
+ the peace which followed their success against the Persian arms, to
+ establish such a reformation. Instead of this obvious policy,
+ Athens and Sparta, inflated with the victories and the glory they
+ had acquired, became first rivals and then enemies; and did each
+ other infinitely more mischief than they had suffered from Xerxes.
+ Their mutual jealousies, fears, hatreds, and injuries ended in the
+ celebrated Peloponnesian war; which itself ended in the ruin and
+ slavery of the Athenians who had begun it.
+As a weak government, when not at war, is ever agitated by
+ internal dissentions, so these never fail to bring on fresh
+ calamities from abroad. The Phocians having ploughed up some
+ consecrated ground belonging to the temple of Apollo, the
+ Amphictyonic council, according to the superstition of the age,
+ imposed a fine on the sacrilegious offenders. The Phocians, being
+ abetted by Athens and Sparta, refused to submit to the decree. The
+ Thebans, with others of the cities, undertook to maintain the
+ authority of the Amphictyons, and to avenge the violated god. The
+ latter, being the weaker party, invited the assistance of Philip of
+ Macedon, who had secretly fostered the contest. Philip gladly
+ seized the opportunity of executing the designs he had long planned
+ against the liberties of Greece. By his intrigues and bribes he won
+ over to his interests the popular leaders of several cities; by
+ their influence and votes, gained admission into the Amphictyonic
+ council; and by his arts and his arms, made himself master of the
+ confederacy.
+Such were the consequences of the fallacious principle on which
+ this interesting establishment was founded. Had Greece, says a
+ judicious observer on her fate, been united by a stricter
+ confederation, and persevered in her union, she would never have
+ worn the chains of Macedon; and might have proved a barrier to the
+ vast projects of Rome.
+The Achaean league, as it is called, was another society of
+ Grecian republics, which supplies us with valuable instruction.
+The Union here was far more intimate, and its organization much
+ wiser, than in the preceding instance. It will accordingly appear,
+ that though not exempt from a similar catastrophe, it by no means
+ equally deserved it.
+The cities composing this league retained their municipal
+ jurisdiction, appointed their own officers, and enjoyed a perfect
+ equality. The senate, in which they were represented, had the sole
+ and exclusive right of peace and war; of sending and receiving
+ ambassadors; of entering into treaties and alliances; of
+ appointing a chief magistrate or praetor, as he was called, who
+ commanded their armies, and who, with the advice and consent of ten
+ of the senators, not only administered the government in the recess
+ of the senate, but had a great share in its deliberations, when
+ assembled. According to the primitive constitution, there were two
+ praetors associated in the administration; but on trial a single
+ one was preferred.
+It appears that the cities had all the same laws and customs,
+ the same weights and measures, and the same money. But how far this
+ effect proceeded from the authority of the federal council is left
+ in uncertainty. It is said only that the cities were in a manner
+ compelled to receive the same laws and usages. When Lacedaemon was
+ brought into the league by Philopoemen, it was attended with an
+ abolition of the institutions and laws of Lycurgus, and an adoption
+ of those of the Achaeans. The Amphictyonic confederacy, of which
+ she had been a member, left her in the full exercise of her
+ government and her legislation. This circumstance alone proves a
+ very material difference in the genius of the two systems.
+It is much to be regretted that such imperfect monuments remain
+ of this curious political fabric. Could its interior structure and
+ regular operation be ascertained, it is probable that more light
+ would be thrown by it on the science of federal government, than by
+ any of the like experiments with which we are acquainted.
+One important fact seems to be witnessed by all the historians
+ who take notice of Achaean affairs. It is, that as well after the
+ renovation of the league by Aratus, as before its dissolution by the
+ arts of Macedon, there was infinitely more of moderation and justice
+ in the administration of its government, and less of violence and
+ sedition in the people, than were to be found in any of the cities
+ exercising SINGLY all the prerogatives of sovereignty. The Abbe
+ Mably, in his observations on Greece, says that the popular
+ government, which was so tempestuous elsewhere, caused no disorders
+ in the members of the Achaean republic, BECAUSE IT WAS THERE
+ TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.
+We are not to conclude too hastily, however, that faction did
+ not, in a certain degree, agitate the particular cities; much less
+ that a due subordination and harmony reigned in the general system.
+ The contrary is sufficiently displayed in the vicissitudes and fate
+ of the republic.
+Whilst the Amphictyonic confederacy remained, that of the
+ Achaeans, which comprehended the less important cities only, made
+ little figure on the theatre of Greece. When the former became a
+ victim to Macedon, the latter was spared by the policy of Philip and
+ Alexander. Under the successors of these princes, however, a
+ different policy prevailed. The arts of division were practiced
+ among the Achaeans. Each city was seduced into a separate interest;
+ the union was dissolved. Some of the cities fell under the tyranny
+ of Macedonian garrisons; others under that of usurpers springing
+ out of their own confusions. Shame and oppression erelong awaken
+ their love of liberty. A few cities reunited. Their example was
+ followed by others, as opportunities were found of cutting off their
+ tyrants. The league soon embraced almost the whole Peloponnesus.
+ Macedon saw its progress; but was hindered by internal dissensions
+ from stopping it. All Greece caught the enthusiasm and seemed ready
+ to unite in one confederacy, when the jealousy and envy in Sparta
+ and Athens, of the rising glory of the Achaeans, threw a fatal damp
+ on the enterprise. The dread of the Macedonian power induced the
+ league to court the alliance of the Kings of Egypt and Syria, who,
+ as successors of Alexander, were rivals of the king of Macedon.
+ This policy was defeated by Cleomenes, king of Sparta, who was led
+ by his ambition to make an unprovoked attack on his neighbors, the
+ Achaeans, and who, as an enemy to Macedon, had interest enough with
+ the Egyptian and Syrian princes to effect a breach of their
+ engagements with the league.
+The Achaeans were now reduced to the dilemma of submitting to
+ Cleomenes, or of supplicating the aid of Macedon, its former
+ oppressor. The latter expedient was adopted. The contests of the
+ Greeks always afforded a pleasing opportunity to that powerful
+ neighbor of intermeddling in their affairs. A Macedonian army
+ quickly appeared. Cleomenes was vanquished. The Achaeans soon
+ experienced, as often happens, that a victorious and powerful ally
+ is but another name for a master. All that their most abject
+ compliances could obtain from him was a toleration of the exercise
+ of their laws. Philip, who was now on the throne of Macedon, soon
+ provoked by his tyrannies, fresh combinations among the Greeks. The
+ Achaeans, though 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 liberty1 throughout Greece. With
+ the same insidious views, they now seduced the members from the
+ league, by representing to their pride the violation it committed on
+ their sovereignty. By these arts this union, the last hope of
+ Greece, the last hope of ancient liberty, was torn into pieces; and
+ such imbecility and distraction introduced, that the arms of Rome
+ found little difficulty in completing the ruin which their arts had
+ commenced. The Achaeans were cut to pieces, and Achaia loaded with
+ chains, under which it is groaning at this hour.
+I have thought it not superfluous to give the outlines of this
+ important portion of history; both because it teaches more than one
+ lesson, and because, as a supplement to the outlines of the Achaean
+ constitution, it emphatically illustrates the tendency of federal
+ bodies rather to anarchy among the members, than to tyranny in the
+ head.
+PUBLIUS.
+1 This was but another name more specious for the independence
+ of the members on the federal head.
+
+
+FEDERALIST No. 19
+
+The Same Subject Continued
+(The Insufficiency of the Present Confederation to Preserve the
+ Union)
+For the Independent Journal.
+
+HAMILTON AND MADISON
+
+To the People of the State of New York:
+THE examples of ancient confederacies, cited in my last paper,
+ have not exhausted the source of experimental instruction on this
+ subject. There are existing institutions, founded on a similar
+ principle, which merit particular consideration. The first which
+ presents itself is the Germanic body.
+In the early ages of Christianity, Germany was occupied by seven
+ distinct nations, who had no common chief. The Franks, one of the
+ number, having conquered the Gauls, established the kingdom which
+ has taken its name from them. In the ninth century Charlemagne, its
+ warlike monarch, carried his victorious arms in every direction;
+ and Germany became a part of his vast dominions. On the
+ dismemberment, which took place under his sons, this part was
+ erected into a separate and independent empire. Charlemagne and his
+ immediate descendants possessed the reality, as well as the ensigns
+ and dignity of imperial power. But the principal vassals, whose
+ fiefs had become hereditary, and who composed the national diets
+ which Charlemagne had not abolished, gradually threw off the yoke
+ and advanced to sovereign jurisdiction and independence. The force
+ of imperial sovereignty was insufficient to restrain such powerful
+ dependants; or to preserve the unity and tranquillity of the empire.
+ The most furious private wars, accompanied with every species of
+ calamity, were carried on between the different princes and states.
+ The imperial authority, unable to maintain the public order,
+ declined by degrees till it was almost extinct in the anarchy, which
+ agitated the long interval between the death of the last emperor of
+ the Suabian, and the accession of the first emperor of the Austrian
+ lines. In the eleventh century the emperors enjoyed full
+ sovereignty: In the fifteenth they had little more than the symbols
+ and decorations of power.
+Out of this feudal system, which has itself many of the
+ important features of a confederacy, has grown the federal system
+ which constitutes the Germanic empire. Its powers are vested in a
+ diet representing the component members of the confederacy; in the
+ emperor, who is the executive magistrate, with a negative on the
+ decrees of the diet; and in the imperial chamber and the aulic
+ council, two judiciary tribunals having supreme jurisdiction in
+ controversies which concern the empire, or which happen among its
+ members.
+The diet possesses the general power of legislating for the
+ empire; of making war and peace; contracting alliances; assessing
+ quotas of troops and money; constructing fortresses; regulating
+ coin; admitting new members; and subjecting disobedient members to
+ the ban of the empire, by which the party is degraded from his
+ sovereign rights and his possessions forfeited. The members of the
+ confederacy are expressly restricted from entering into compacts
+ prejudicial to the empire; from imposing tolls and duties on their
+ mutual intercourse, without the consent of the emperor and diet;
+ from altering the value of money; from doing injustice to one
+ another; or from affording assistance or retreat to disturbers of
+ the public peace. And the ban is denounced against such as shall
+ violate any of these restrictions. The members of the diet, as
+ such, are subject in all cases to be judged by the emperor and diet,
+ and in their private capacities by the aulic council and imperial
+ chamber.
+The prerogatives of the emperor are numerous. The most
+ important of them are: his exclusive right to make propositions to
+ the diet; to negative its resolutions; to name ambassadors; to
+ confer dignities and titles; to fill vacant electorates; to found
+ universities; to grant privileges not injurious to the states of
+ the empire; to receive and apply the public revenues; and
+ generally to watch over the public safety. In certain cases, the
+ electors form a council to him. In quality of emperor, he possesses
+ no territory within the empire, nor receives any revenue for his
+ support. But his revenue and dominions, in other qualities,
+ constitute him one of the most powerful princes in Europe.
+From such a parade of constitutional powers, in the
+ representatives and head of this confederacy, the natural
+ supposition would be, that it must form an exception to the general
+ character which belongs to its kindred systems. Nothing would be
+ further from the reality. The fundamental principle on which it
+ rests, that the empire is a community of sovereigns, that the diet
+ is a representation of sovereigns and that the laws are addressed to
+ sovereigns, renders the empire a nerveless body, incapable of
+ regulating its own members, insecure against external dangers, and
+ agitated with unceasing fermentations in its own bowels.
+The history of Germany is a history of wars between the emperor
+ and the princes and states; of wars among the princes and states
+ themselves; of the licentiousness of the strong, and the oppression
+ of the weak; of foreign intrusions, and foreign intrigues; of
+ requisitions of men and money disregarded, or partially complied
+ with; of attempts to enforce them, altogether abortive, or attended
+ with slaughter and desolation, involving the innocent with the
+ guilty; of general inbecility, confusion, and misery.
+In the sixteenth century, the emperor, with one part of the
+ empire on his side, was seen engaged against the other princes and
+ states. In one of the conflicts, the emperor himself was put to
+ flight, and very near being made prisoner by the elector of Saxony.
+ The late king of Prussia was more than once pitted against his
+ imperial sovereign; and commonly proved an overmatch for him.
+ Controversies and wars among the members themselves have been so
+ common, that the German annals are crowded with the bloody pages
+ which describe them. Previous to the peace of Westphalia, Germany
+ was desolated by a war of thirty years, in which the emperor, with
+ one half of the empire, was on one side, and Sweden, with the other
+ half, on the opposite side. Peace was at length negotiated, and
+ dictated by foreign powers; and the articles of it, to which
+ foreign powers are parties, made a fundamental part of the Germanic
+ constitution.
+If the nation happens, on any emergency, to be more united by
+ the necessity of self-defense, its situation is still deplorable.
+ Military preparations must be preceded by so many tedious
+ discussions, arising from the jealousies, pride, separate views, and
+ clashing pretensions of sovereign bodies, that before the diet can
+ settle the arrangements, the enemy are in the field; and before the
+ federal troops are ready to take it, are retiring into winter
+ quarters.
+The small body of national troops, which has been judged
+ necessary in time of peace, is defectively kept up, badly paid,
+ infected with local prejudices, and supported by irregular and
+ disproportionate contributions to the treasury.
+The impossibility of maintaining order and dispensing justice
+ among these sovereign subjects, produced the experiment of dividing
+ the empire into nine or ten circles or districts; of giving them an
+ interior organization, and of charging them with the military
+ execution of the laws against delinquent and contumacious members.
+ This experiment has only served to demonstrate more fully the
+ radical vice of the constitution. Each circle is the miniature
+ picture of the deformities of this political monster. They either
+ fail to execute their commissions, or they do it with all the
+ devastation and carnage of civil war. Sometimes whole circles are
+ defaulters; and then they increase the mischief which they were
+ instituted to remedy.
+We may form some judgment of this scheme of military coercion
+ from a sample given by Thuanus. In Donawerth, a free and imperial
+ city of the circle of Suabia, the Abb 300 de St. Croix enjoyed
+ certain immunities which had been reserved to him. In the exercise
+ of these, on some public occasions, outrages were committed on him
+ by the people of the city. The consequence was that the city was
+ put under the ban of the empire, and the Duke of Bavaria, though
+ director of another circle, obtained an appointment to enforce it.
+ He soon appeared before the city with a corps of ten thousand
+ troops, and finding it a fit occasion, as he had secretly intended
+ from the beginning, to revive an antiquated claim, on the pretext
+ that his ancestors had suffered the place to be dismembered from his
+ territory,1 he took possession of it in his own name, disarmed,
+ and punished the inhabitants, and reannexed the city to his domains.
+It may be asked, perhaps, what has so long kept this disjointed
+ machine from falling entirely to pieces? The answer is obvious:
+ The weakness of most of the members, who are unwilling to expose
+ themselves to the mercy of foreign powers; the weakness of most of
+ the principal members, compared with the formidable powers all
+ around them; the vast weight and influence which the emperor
+ derives from his separate and heriditary dominions; and the
+ interest he feels in preserving a system with which his family pride
+ is connected, and which constitutes him the first prince in Europe;
+ --these causes support a feeble and precarious Union; whilst the
+ repellant quality, incident to the nature of sovereignty, and which
+ time continually strengthens, prevents any reform whatever, founded
+ on a proper consolidation. Nor is it to be imagined, if this
+ obstacle could be surmounted, that the neighboring powers would
+ suffer a revolution to take place which would give to the empire the
+ force and preeminence to which it is entitled. Foreign nations have
+ long considered themselves as interested in the changes made by
+ events in this constitution; and have, on various occasions,
+ betrayed their policy of perpetuating its anarchy and weakness.
+If more direct examples were wanting, Poland, as a government
+ over local sovereigns, might not improperly be taken notice of. Nor
+ could any proof more striking be given of the calamities flowing
+ from such institutions. Equally unfit for self-government and
+ self-defense, it has long been at the mercy of its powerful
+ neighbors; who have lately had the mercy to disburden it of one
+ third of its people and territories.
+The connection among the Swiss cantons scarcely amounts to a
+ confederacy; though it is sometimes cited as an instance of the
+ stability of such institutions.
+They have no common treasury; no common troops even in war; no
+ common coin; no common judicatory; nor any other common mark of
+ sovereignty.
+They are kept together by the peculiarity of their topographical
+ position; by their individual weakness and insignificancy; by the
+ fear of powerful neighbors, to one of which they were formerly
+ subject; by the few sources of contention among a people of such
+ simple and homogeneous manners; by their joint interest in their
+ dependent possessions; by the mutual aid they stand in need of, for
+ suppressing insurrections and rebellions, an aid expressly
+ stipulated and often required and afforded; and by the necessity of
+ some regular and permanent provision for accomodating disputes among
+ the cantons. The provision is, that the parties at variance shall
+ each choose four judges out of the neutral cantons, who, in case of
+ disagreement, choose an umpire. This tribunal, under an oath of
+ impartiality, pronounces definitive sentence, which all the cantons
+ are bound to enforce. The competency of this regulation may be
+ estimated by a clause in their treaty of 1683, with Victor Amadeus
+ of Savoy; in which he obliges himself to interpose as mediator in
+ disputes between the cantons, and to employ force, if necessary,
+ against the contumacious party.
+So far as the peculiarity of their case will admit of comparison
+ with that of the United States, it serves to confirm the principle
+ intended to be established. Whatever efficacy the union may have
+ had in ordinary cases, it appears that the moment a cause of
+ difference sprang up, capable of trying its strength, it failed.
+ The controversies on the subject of religion, which in three
+ instances have kindled violent and bloody contests, may be said, in
+ fact, to have severed the league. The Protestant and Catholic
+ cantons have since had their separate diets, where all the most
+ important concerns are adjusted, and which have left the general
+ diet little other business than to take care of the common bailages.
+That separation had another consequence, which merits attention.
+ It produced opposite alliances with foreign powers: of Berne, at
+ the head of the Protestant association, with the United Provinces;
+ and of Luzerne, at the head of the Catholic association, with
+ France.
+PUBLIUS.
+1 Pfeffel, ``Nouvel Abreg. Chronol. de l'Hist., etc.,
+ d'Allemagne,'' says the pretext was to indemnify himself for the
+ expense of the expedition.
+
+
+FEDERALIST No. 20
+
+The Same Subject Continued
+(The Insufficiency of the Present Confederation to Preserve the
+ Union)
+From the New York Packet.
+Tuesday, December 11, 1787.
+
+HAMILTON AND MADISON
+
+To the People of the State of New York:
+THE United Netherlands are a confederacy of republics, or rather
+ of aristocracies of a very remarkable texture, yet confirming all
+ the lessons derived from those which we have already reviewed.
+The union is composed of seven coequal and sovereign states, and
+ each state or province is a composition of equal and independent
+ cities. In all important cases, not only the provinces but the
+ cities must be unanimous.
+The sovereignty of the Union is represented by the
+ States-General, consisting usually of about fifty deputies appointed
+ by the provinces. They hold their seats, some for life, some for
+ six, three, and one years; from two provinces they continue in
+ appointment during pleasure.
+The States-General have authority to enter into treaties and
+ alliances; to make war and peace; to raise armies and equip
+ fleets; to ascertain quotas and demand contributions. In all these
+ cases, however, unanimity and the sanction of their constituents are
+ requisite. They have authority to appoint and receive ambassadors;
+ to execute treaties and alliances already formed; to provide for
+ the collection of duties on imports and exports; to regulate the
+ mint, with a saving to the provincial rights; to govern as
+ sovereigns the dependent territories. The provinces are restrained,
+ unless with the general consent, from entering into foreign
+ treaties; from establishing imposts injurious to others, or
+ charging their neighbors with higher duties than their own subjects.
+ A council of state, a chamber of accounts, with five colleges of
+ admiralty, aid and fortify the federal administration.
+The executive magistrate of the union is the stadtholder, who is
+ now an hereditary prince. His principal weight and influence in the
+ republic are derived from this independent title; from his great
+ patrimonial estates; from his family connections with some of the
+ chief potentates of Europe; and, more than all, perhaps, from his
+ being stadtholder in the several provinces, as well as for the
+ union; in which provincial quality he has the appointment of town
+ magistrates under certain regulations, executes provincial decrees,
+ presides when he pleases in the provincial tribunals, and has
+ throughout the power of pardon.
+As stadtholder of the union, he has, however, considerable
+ prerogatives.
+In his political capacity he has authority to settle disputes
+ between the provinces, when other methods fail; to assist at the
+ deliberations of the States-General, and at their particular
+ conferences; to give audiences to foreign ambassadors, and to keep
+ agents for his particular affairs at foreign courts.
+In his military capacity he commands the federal troops,
+ provides for garrisons, and in general regulates military affairs;
+ disposes of all appointments, from colonels to ensigns, and of the
+ governments and posts of fortified towns.
+In his marine capacity he is admiral-general, and superintends
+ and directs every thing relative to naval forces and other naval
+ affairs; presides in the admiralties in person or by proxy;
+ appoints lieutenant-admirals and other officers; and establishes
+ councils of war, whose sentences are not executed till he approves
+ them.
+His revenue, exclusive of his private income, amounts to three
+ hundred thousand florins. The standing army which he commands
+ consists of about forty thousand men.
+Such is the nature of the celebrated Belgic confederacy, as
+ delineated on parchment. What are the characters which practice has
+ stamped upon it? Imbecility in the government; discord among the
+ provinces; foreign influence and indignities; a precarious
+ existence in peace, and peculiar calamities from war.
+It was long ago remarked by Grotius, that nothing but the hatred
+ of his countrymen to the house of Austria kept them from being
+ ruined by the vices of their constitution.
+The union of Utrecht, says another respectable writer, reposes
+ an authority in the States-General, seemingly sufficient to secure
+ harmony, but the jealousy in each province renders the practice very
+ different from the theory.
+The same instrument, says another, obliges each province to levy
+ certain contributions; but this article never could, and probably
+ never will, be executed; because the inland provinces, who have
+ little commerce, cannot pay an equal quota.
+In matters of contribution, it is the practice to waive the
+ articles of the constitution. The danger of delay obliges the
+ consenting provinces to furnish their quotas, without waiting for
+ the others; and then to obtain reimbursement from the others, by
+ deputations, which are frequent, or otherwise, as they can. The
+ great wealth and influence of the province of Holland enable her to
+ effect both these purposes.
+It has more than once happened, that the deficiencies had to be
+ ultimately collected at the point of the bayonet; a thing
+ practicable, though dreadful, in a confedracy where one of the
+ members exceeds in force all the rest, and where several of them are
+ too small to meditate resistance; but utterly impracticable in one
+ composed of members, several of which are equal to each other in
+ strength and resources, and equal singly to a vigorous and
+ persevering defense.
+Foreign ministers, says Sir William Temple, who was himself a
+ foreign minister, elude matters taken ad referendum, by
+ tampering with the provinces and cities. In 1726, the treaty of
+ Hanover was delayed by these means a whole year. Instances of a
+ like nature are numerous and notorious.
+In critical emergencies, the States-General are often compelled
+ to overleap their constitutional bounds. In 1688, they concluded a
+ treaty of themselves at the risk of their heads. The treaty of
+ Westphalia, in 1648, by which their independence was formerly and
+ finally recognized, was concluded without the consent of Zealand.
+ Even as recently as the last treaty of peace with Great Britain,
+ the constitutional principle of unanimity was departed from. A weak
+ constitution must necessarily terminate in dissolution, for want of
+ proper powers, or the usurpation of powers requisite for the public
+ safety. Whether the usurpation, when once begun, will stop at the
+ salutary point, or go forward to the dangerous extreme, must depend
+ on the contingencies of the moment. Tyranny has perhaps oftener
+ grown out of the assumptions of power, called for, on pressing
+ exigencies, by a defective constitution, than out of the full
+ exercise of the largest constitutional authorities.
+Notwithstanding the calamities produced by the stadtholdership,
+ it has been supposed that without his influence in the individual
+ provinces, the causes of anarchy manifest in the confederacy would
+ long ago have dissolved it. ``Under such a government,'' says the
+ Abbe Mably, ``the Union could never have subsisted, if the provinces
+ had not a spring within themselves, capable of quickening their
+ tardiness, and compelling them to the same way of thinking. This
+ spring is the stadtholder.'' It is remarked by Sir William Temple,
+ ``that in the intermissions of the stadtholdership, Holland, by her
+ riches and her authority, which drew the others into a sort of
+ dependence, supplied the place.''
+These are not the only circumstances which have controlled the
+ tendency to anarchy and dissolution. The surrounding powers impose
+ an absolute necessity of union to a certain degree, at the same time
+ that they nourish by their intrigues the constitutional vices which
+ keep the republic in some degree always at their mercy.
+The true patriots have long bewailed the fatal tendency of these
+ vices, and have made no less than four regular experiments by
+ EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply
+ a remedy. As many times has their laudable zeal found it impossible
+ to UNITE THE PUBLIC COUNCILS in reforming the known, the
+ acknowledged, the fatal evils of the existing constitution. Let us
+ pause, my fellow-citizens, for one moment, over this melancholy and
+ monitory lesson of history; and with the tear that drops for the
+ calamities brought on mankind by their adverse opinions and selfish
+ passions, let our gratitude mingle an ejaculation to Heaven, for the
+ propitious concord which has distinguished the consultations for our
+ political happiness.
+A design was also conceived of establishing a general tax to be
+ administered by the federal authority. This also had its
+ adversaries and failed.
+This unhappy people seem to be now suffering from popular
+ convulsions, from dissensions among the states, and from the actual
+ invasion of foreign arms, the crisis of their destiny. All nations
+ have their eyes fixed on the awful spectacle. The first wish
+ prompted by humanity is, that this severe trial may issue in such a
+ revolution of their government as will establish their union, and
+ render it the parent of tranquillity, freedom and happiness: The
+ next, that the asylum under which, we trust, the enjoyment of these
+ blessings will speedily be secured in this country, may receive and
+ console them for the catastrophe of their own.
+I make no apology for having dwelt so long on the contemplation
+ of these federal precedents. Experience is the oracle of truth;
+ and where its responses are unequivocal, they ought to be
+ conclusive and sacred. The important truth, which it unequivocally
+ pronounces in the present case, is that a sovereignty over
+ sovereigns, a government over governments, a legislation for
+ communities, as contradistinguished from individuals, as it is a
+ solecism in theory, so in practice it is subversive of the order and
+ ends of civil polity, by substituting VIOLENCE in place of LAW, or
+ the destructive COERCION of the SWORD in place of the mild and
+ salutary COERCION of the MAGISTRACY.
+PUBLIUS.
+
+
+FEDERALIST No. 21
+
+Other Defects of the Present Confederation
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+HAVING in the three last numbers taken a summary review of the
+ principal circumstances and events which have depicted the genius
+ and fate of other confederate governments, I shall now proceed in
+ the enumeration of the most important of those defects which have
+ hitherto disappointed our hopes from the system established among
+ ourselves. To form a safe and satisfactory judgment of the proper
+ remedy, it is absolutely necessary that we should be well acquainted
+ with the extent and malignity of the disease.
+The next most palpable defect of the subsisting Confederation,
+ is the total want of a SANCTION to its laws. The United States, as
+ now composed, have no powers to exact obedience, or punish
+ disobedience to their resolutions, either by pecuniary mulcts, by a
+ suspension or divestiture of privileges, or by any other
+ constitutional mode. There is no express delegation of authority to
+ them to use force against delinquent members; and if such a right
+ should be ascribed to the federal head, as resulting from the nature
+ of the social compact between the States, it must be by inference
+ and construction, in the face of that part of the second article, by
+ which it is declared, ``that each State shall retain every power,
+ jurisdiction, and right, not EXPRESSLY delegated to the United
+ States in Congress assembled.'' There is, doubtless, a striking
+ absurdity in supposing that a right of this kind does not exist, but
+ we are reduced to the dilemma either of embracing that supposition,
+ preposterous as it may seem, or of contravening or explaining away a
+ provision, which has been of late a repeated theme of the eulogies
+ of those who oppose the new Constitution; and the want of which, in
+ that plan, has been the subject of much plausible animadversion, and
+ severe criticism. If we are unwilling to impair the force of this
+ applauded provision, we shall be obliged to conclude, that the
+ United States afford the extraordinary spectacle of a government
+ destitute even of the shadow of constitutional power to enforce the
+ execution of its own laws. It will appear, from the specimens which
+ have been cited, that the American Confederacy, in this particular,
+ stands discriminated from every other institution of a similar kind,
+ and exhibits a new and unexampled phenomenon in the political world.
+The want of a mutual guaranty of the State governments is
+ another capital imperfection in the federal plan. There is nothing
+ of this kind declared in the articles that compose it; and to imply
+ a tacit guaranty from considerations of utility, would be a still
+ more flagrant departure from the clause which has been mentioned,
+ than to imply a tacit power of coercion from the like considerations.
+ The want of a guaranty, though it might in its consequences
+ endanger the Union, does not so immediately attack its existence as
+ the want of a constitutional sanction to its laws.
+Without a guaranty the assistance to be derived from the Union
+ in repelling those domestic dangers which may sometimes threaten the
+ existence of the State constitutions, must be renounced. Usurpation
+ may rear its crest in each State, and trample upon the liberties of
+ the people, while the national government could legally do nothing
+ more than behold its encroachments with indignation and regret. A
+ successful faction may erect a tyranny on the ruins of order and
+ law, while no succor could constitutionally be afforded by the Union
+ to the friends and supporters of the government. The tempestuous
+ situation from which Massachusetts has scarcely emerged, evinces
+ that dangers of this kind are not merely speculative. Who can
+ determine what might have been the issue of her late convulsions, if
+ the malcontents had been headed by a Caesar or by a Cromwell? Who
+ can predict what effect a despotism, established in Massachusetts,
+ would have upon the liberties of New Hampshire or Rhode Island, of
+ Connecticut or New York?
+The inordinate pride of State importance has suggested to some
+ minds an objection to the principle of a guaranty in the federal
+ government, as involving an officious interference in the domestic
+ concerns of the members. A scruple of this kind would deprive us of
+ one of the principal advantages to be expected from union, and can
+ only flow from a misapprehension of the nature of the provision
+ itself. It could be no impediment to reforms of the State
+ constitution by a majority of the people in a legal and peaceable
+ mode. This right would remain undiminished. The guaranty could
+ only operate against changes to be effected by violence. Towards
+ the preventions of calamities of this kind, too many checks cannot
+ be provided. The peace of society and the stability of government
+ depend absolutely on the efficacy of the precautions adopted on this
+ head. Where the whole power of the government is in the hands of
+ the people, there is the less pretense for the use of violent
+ remedies in partial or occasional distempers of the State. The
+ natural cure for an ill-administration, in a popular or
+ representative constitution, is a change of men. A guaranty by the
+ national authority would be as much levelled against the usurpations
+ of rulers as against the ferments and outrages of faction and
+ sedition in the community.
+The principle of regulating the contributions of the States to
+ the common treasury by QUOTAS is another fundamental error in the
+ Confederation. Its repugnancy to an adequate supply of the national
+ exigencies has been already pointed out, and has sufficiently
+ appeared from the trial which has been made of it. I speak of it
+ now solely with a view to equality among the States. Those who have
+ been accustomed to contemplate the circumstances which produce and
+ constitute national wealth, must be satisfied that there is no
+ common standard or barometer by which the degrees of it can be
+ ascertained. Neither the value of lands, nor the numbers of the
+ people, which have been successively proposed as the rule of State
+ contributions, has any pretension to being a just representative.
+ If we compare the wealth of the United Netherlands with that of
+ Russia or Germany, or even of France, and if we at the same time
+ compare the total value of the lands and the aggregate population of
+ that contracted district with the total value of the lands and the
+ aggregate population of the immense regions of either of the three
+ last-mentioned countries, we shall at once discover that there is no
+ comparison between the proportion of either of these two objects and
+ that of the relative wealth of those nations. If the like parallel
+ were to be run between several of the American States, it would
+ furnish a like result. Let Virginia be contrasted with North
+ Carolina, Pennsylvania with Connecticut, or Maryland with New
+ Jersey, and we shall be convinced that the respective abilities of
+ those States, in relation to revenue, bear little or no analogy to
+ their comparative stock in lands or to their comparative population.
+ The position may be equally illustrated by a similar process
+ between the counties of the same State. No man who is acquainted
+ with the State of New York will doubt that the active wealth of
+ King's County bears a much greater proportion to that of Montgomery
+ than it would appear to be if we should take either the total value
+ of the lands or the total number of the people as a criterion!
+The wealth of nations depends upon an infinite variety of causes.
+ Situation, soil, climate, the nature of the productions, the
+ nature of the government, the genius of the citizens, the degree of
+ information they possess, the state of commerce, of arts, of
+ industry, these circumstances and many more, too complex, minute, or
+ adventitious to admit of a particular specification, occasion
+ differences hardly conceivable in the relative opulence and riches
+ of different countries. The consequence clearly is that there can
+ be no common measure of national wealth, and, of course, no general
+ or stationary rule by which the ability of a state to pay taxes can
+ be determined. The attempt, therefore, to regulate the
+ contributions of the members of a confederacy by any such rule,
+ cannot fail to be productive of glaring inequality and extreme
+ oppression.
+This inequality would of itself be sufficient in America to work
+ the eventual destruction of the Union, if any mode of enforcing a
+ compliance with its requisitions could be devised. The suffering
+ States would not long consent to remain associated upon a principle
+ which distributes the public burdens with so unequal a hand, and
+ which was calculated to impoverish and oppress the citizens of some
+ States, while those of others would scarcely be conscious of the
+ small proportion of the weight they were required to sustain. This,
+ however, is an evil inseparable from the principle of quotas and
+ requisitions.
+There is no method of steering clear of this inconvenience, but
+ by authorizing the national government to raise its own revenues in
+ its own way. Imposts, excises, and, in general, all duties upon
+ articles of consumption, may be compared to a fluid, which will, in
+ time, find its level with the means of paying them. The amount to
+ be contributed by each citizen will in a degree be at his own
+ option, and can be regulated by an attention to his resources. The
+ rich may be extravagant, the poor can be frugal; and private
+ oppression may always be avoided by a judicious selection of objects
+ proper for such impositions. If inequalities should arise in some
+ States from duties on particular objects, these will, in all
+ probability, be counterbalanced by proportional inequalities in
+ other States, from the duties on other objects. In the course of
+ time and things, an equilibrium, as far as it is attainable in so
+ complicated a subject, will be established everywhere. Or, if
+ inequalities should still exist, they would neither be so great in
+ their degree, so uniform in their operation, nor so odious in their
+ appearance, as those which would necessarily spring from quotas,
+ upon any scale that can possibly be devised.
+It is a signal advantage of taxes on articles of consumption,
+ that they contain in their own nature a security against excess.
+ They prescribe their own limit; which cannot be exceeded without
+ defeating the end proposed, that is, an extension of the revenue.
+ When applied to this object, the saying is as just as it is witty,
+ that, ``in political arithmetic, two and two do not always make four.''
+If duties are too high, they lessen the consumption; the
+ collection is eluded; and the product to the treasury is not so
+ great as when they are confined within proper and moderate bounds.
+ This forms a complete barrier against any material oppression of
+ the citizens by taxes of this class, and is itself a natural
+ limitation of the power of imposing them.
+Impositions of this kind usually fall under the denomination of
+ indirect taxes, and must for a long time constitute the chief part
+ of the revenue raised in this country. Those of the direct kind,
+ which principally relate to land and buildings, may admit of a rule
+ of apportionment. Either the value of land, or the number of the
+ people, may serve as a standard. The state of agriculture and the
+ populousness of a country have been considered as nearly connected
+ with each other. And, as a rule, for the purpose intended, numbers,
+ in the view of simplicity and certainty, are entitled to a
+ preference. In every country it is a herculean task to obtain a
+ valuation of the land; in a country imperfectly settled and
+ progressive in improvement, the difficulties are increased almost to
+ impracticability. The expense of an accurate valuation is, in all
+ situations, a formidable objection. In a branch of taxation where
+ no limits to the discretion of the government are to be found in the
+ nature of things, the establishment of a fixed rule, not
+ incompatible with the end, may be attended with fewer inconveniences
+ than to leave that discretion altogether at large.
+PUBLIUS.
+
+
+FEDERALIST No. 22
+
+The Same Subject Continued
+(Other Defects of the Present Confederation)
+From the New York Packet.
+Friday, December 14, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+IN ADDITION to the defects already enumerated in the existing
+ federal system, there are others of not less importance, which
+ concur in rendering it altogether unfit for the administration of
+ the affairs of the Union.
+The want of a power to regulate commerce is by all parties
+ allowed to be of the number. The utility of such a power has been
+ anticipated under the first head of our inquiries; and for this
+ reason, as well as from the universal conviction entertained upon
+ the subject, little need be added in this place. It is indeed
+ evident, on the most superficial view, that there is no object,
+ either as it respects the interests of trade or finance, that more
+ strongly demands a federal superintendence. The want of it has
+ already operated as a bar to the formation of beneficial treaties
+ with foreign powers, and has given occasions of dissatisfaction
+ between the States. No nation acquainted with the nature of our
+ political association would be unwise enough to enter into
+ stipulations with the United States, by which they conceded
+ privileges of any importance to them, while they were apprised that
+ the engagements on the part of the Union might at any moment be
+ violated by its members, and while they found from experience that
+ they might enjoy every advantage they desired in our markets,
+ without granting us any return but such as their momentary
+ convenience might suggest. It is not, therefore, to be wondered at
+ that Mr. Jenkinson, in ushering into the House of Commons a bill for
+ regulating the temporary intercourse between the two countries,
+ should preface its introduction by a declaration that similar
+ provisions in former bills had been found to answer every purpose to
+ the commerce of Great Britain, and that it would be prudent to
+ persist in the plan until it should appear whether the American
+ government was likely or not to acquire greater consistency. [1]
+Several States have endeavored, by separate prohibitions,
+ restrictions, and exclusions, to influence the conduct of that
+ kingdom in this particular, but the want of concert, arising from
+ the want of a general authority and from clashing and dissimilar
+ views in the State, has hitherto frustrated every experiment of the
+ kind, and will continue to do so as long as the same obstacles to a
+ uniformity of measures continue to exist.
+The interfering and unneighborly regulations of some States,
+ contrary to the true spirit of the Union, have, in different
+ instances, given just cause of umbrage and complaint to others, and
+ it is to be feared that examples of this nature, if not restrained
+ by a national control, would be multiplied and extended till they
+ became not less serious sources of animosity and discord than
+ injurious impediments to the intercourse between the different parts
+ of the Confederacy. ``The commerce of the German empire [2] is in
+ continual trammels from the multiplicity of the duties which the
+ several princes and states exact upon the merchandises passing
+ through their territories, by means of which the fine streams and
+ navigable rivers with which Germany is so happily watered are
+ rendered almost useless.'' Though the genius of the people of this
+ country might never permit this description to be strictly
+ applicable to us, yet we may reasonably expect, from the gradual
+ conflicts of State regulations, that the citizens of each would at
+ length come to be considered and treated by the others in no better
+ light than that of foreigners and aliens.
+The power of raising armies, by the most obvious construction of
+ the articles of the Confederation, is merely a power of making
+ requisitions upon the States for quotas of men. This practice in
+ the course of the late war, was found replete with obstructions to a
+ vigorous and to an economical system of defense. It gave birth to a
+ competition between the States which created a kind of auction for
+ men. In order to furnish the quotas required of them, they outbid
+ each other till bounties grew to an enormous and insupportable size.
+ The hope of a still further increase afforded an inducement to
+ those who were disposed to serve to procrastinate their enlistment,
+ and disinclined them from engaging for any considerable periods.
+ Hence, slow and scanty levies of men, in the most critical
+ emergencies of our affairs; short enlistments at an unparalleled
+ expense; continual fluctuations in the troops, ruinous to their
+ discipline and subjecting the public safety frequently to the
+ perilous crisis of a disbanded army. Hence, also, those oppressive
+ expedients for raising men which were upon several occasions
+ practiced, and which nothing but the enthusiasm of liberty would
+ have induced the people to endure.
+This method of raising troops is not more unfriendly to economy
+ and vigor than it is to an equal distribution of the burden. The
+ States near the seat of war, influenced by motives of
+ self-preservation, made efforts to furnish their quotas, which even
+ exceeded their abilities; while those at a distance from danger
+ were, for the most part, as remiss as the others were diligent, in
+ their exertions. The immediate pressure of this inequality was not
+ in this case, as in that of the contributions of money, alleviated
+ by the hope of a final liquidation. The States which did not pay
+ their proportions of money might at least be charged with their
+ deficiencies; but no account could be formed of the deficiencies in
+ the supplies of men. We shall not, however, see much reason to
+ reget the want of this hope, when we consider how little prospect
+ there is, that the most delinquent States will ever be able to make
+ compensation for their pecuniary failures. The system of quotas and
+ requisitions, whether it be applied to men or money, is, in every
+ view, a system of imbecility in the Union, and of inequality and
+ injustice among the members.
+The right of equal suffrage among the States is another
+ exceptionable part of the Confederation. Every idea of proportion
+ and every rule of fair representation conspire to condemn a
+ principle, which gives to Rhode Island an equal weight in the scale
+ of power with Massachusetts, or Connecticut, or New York; and to
+ Deleware an equal voice in the national deliberations with
+ Pennsylvania, or Virginia, or North Carolina. Its operation
+ contradicts the fundamental maxim of republican government, which
+ requires that the sense of the majority should prevail. Sophistry
+ may reply, that sovereigns are equal, and that a majority of the
+ votes of the States will be a majority of confederated America. But
+ this kind of logical legerdemain will never counteract the plain
+ suggestions of justice and common-sense. It may happen that this
+ majority of States is a small minority of the people of
+ America [3]; and two thirds of the people of America could not
+ long be persuaded, upon the credit of artificial distinctions and
+ syllogistic subtleties, to submit their interests to the management
+ and disposal of one third. The larger States would after a while
+ revolt from the idea of receiving the law from the smaller. To
+ acquiesce in such a privation of their due importance in the
+ political scale, would be not merely to be insensible to the love of
+ power, but even to sacrifice the desire of equality. It is neither
+ rational to expect the first, nor just to require the last. The
+ smaller States, considering how peculiarly their safety and welfare
+ depend on union, ought readily to renounce a pretension which, if
+ not relinquished, would prove fatal to its duration.
+It may be objected to this, that not seven but nine States, or
+ two thirds of the whole number, must consent to the most important
+ resolutions; and it may be thence inferred that nine States would
+ always comprehend a majority of the Union. But this does not
+ obviate the impropriety of an equal vote between States of the most
+ unequal dimensions and populousness; nor is the inference accurate
+ in point of fact; for we can enumerate nine States which contain
+ less than a majority of the people [4]; and it is constitutionally
+ possible that these nine may give the vote. Besides, there are
+ matters of considerable moment determinable by a bare majority; and
+ there are others, concerning which doubts have been entertained,
+ which, if interpreted in favor of the sufficiency of a vote of seven
+ States, would extend its operation to interests of the first
+ magnitude. In addition to this, it is to be observed that there is
+ a probability of an increase in the number of States, and no
+ provision for a proportional augmentation of the ratio of votes.
+But this is not all: what at first sight may seem a remedy, is,
+ in reality, a poison. To give a minority a negative upon the
+ majority (which is always the case where more than a majority is
+ requisite to a decision), is, in its tendency, to subject the sense
+ of the greater number to that of the lesser. Congress, from the
+ nonattendance of a few States, have been frequently in the situation
+ of a Polish diet, where a single VOTE has been sufficient to put a
+ stop to all their movements. A sixtieth part of the Union, which is
+ about the proportion of Delaware and Rhode Island, has several times
+ been able to oppose an entire bar to its operations. This is one of
+ those refinements which, in practice, has an effect the reverse of
+ what is expected from it in theory. The necessity of unanimity in
+ public bodies, or of something approaching towards it, has been
+ founded upon a supposition that it would contribute to security.
+ But its real operation is to embarrass the administration, to
+ destroy the energy of the government, and to substitute the
+ pleasure, caprice, or artifices of an insignificant, turbulent, or
+ corrupt junto, to the regular deliberations and decisions of a
+ respectable majority. In those emergencies of a nation, in which
+ the goodness or badness, the weakness or strength of its government,
+ is of the greatest importance, there is commonly a necessity for
+ action. The public business must, in some way or other, go forward.
+ If a pertinacious minority can control the opinion of a majority,
+ respecting the best mode of conducting it, the majority, in order
+ that something may be done, must conform to the views of the
+ minority; and thus the sense of the smaller number will overrule
+ that of the greater, and give a tone to the national proceedings.
+ Hence, tedious delays; continual negotiation and intrigue;
+ contemptible compromises of the public good. And yet, in such a
+ system, it is even happy when such compromises can take place: for
+ upon some occasions things will not admit of accommodation; and
+ then the measures of government must be injuriously suspended, or
+ fatally defeated. It is often, by the impracticability of obtaining
+ the concurrence of the necessary number of votes, kept in a state of
+ inaction. Its situation must always savor of weakness, sometimes
+ border upon anarchy.
+It is not difficult to discover, that a principle of this kind
+ gives greater scope to foreign corruption, as well as to domestic
+ faction, than that which permits the sense of the majority to
+ decide; though the contrary of this has been presumed. The mistake
+ has proceeded from not attending with due care to the mischiefs that
+ may be occasioned by obstructing the progress of government at
+ certain critical seasons. When the concurrence of a large number is
+ required by the Constitution to the doing of any national act, we
+ are apt to rest satisfied that all is safe, because nothing improper
+ will be likely TO BE DONE, but we forget how much good may be
+ prevented, and how much ill may be produced, by the power of
+ hindering the doing what may be necessary, and of keeping affairs in
+ the same unfavorable posture in which they may happen to stand at
+ particular periods.
+Suppose, for instance, we were engaged in a war, in conjunction
+ with one foreign nation, against another. Suppose the necessity of
+ our situation demanded peace, and the interest or ambition of our
+ ally led him to seek the prosecution of the war, with views that
+ might justify us in making separate terms. In such a state of
+ things, this ally of ours would evidently find it much easier, by
+ his bribes and intrigues, to tie up the hands of government from
+ making peace, where two thirds of all the votes were requisite to
+ that object, than where a simple majority would suffice. In the
+ first case, he would have to corrupt a smaller number; in the last,
+ a greater number. Upon the same principle, it would be much easier
+ for a foreign power with which we were at war to perplex our
+ councils and embarrass our exertions. And, in a commercial view, we
+ may be subjected to similar inconveniences. A nation, with which we
+ might have a treaty of commerce, could with much greater facility
+ prevent our forming a connection with her competitor in trade,
+ though such a connection should be ever so beneficial to ourselves.
+Evils of this description ought not to be regarded as imaginary.
+ One of the weak sides of republics, among their numerous
+ advantages, is that they afford too easy an inlet to foreign
+ corruption. An hereditary monarch, though often disposed to
+ sacrifice his subjects to his ambition, has so great a personal
+ interest in the government and in the external glory of the nation,
+ that it is not easy for a foreign power to give him an equivalent
+ for what he would sacrifice by treachery to the state. The world
+ has accordingly been witness to few examples of this species of
+ royal prostitution, though there have been abundant specimens of
+ every other kind.
+In republics, persons elevated from the mass of the community,
+ by the suffrages of their fellow-citizens, to stations of great
+ pre-eminence and power, may find compensations for betraying their
+ trust, which, to any but minds animated and guided by superior
+ virtue, may appear to exceed the proportion of interest they have in
+ the common stock, and to overbalance the obligations of duty. Hence
+ it is that history furnishes us with so many mortifying examples of
+ the prevalency of foreign corruption in republican governments. How
+ much this contributed to the ruin of the ancient commonwealths has
+ been already delineated. It is well known that the deputies of the
+ United Provinces have, in various instances, been purchased by the
+ emissaries of the neighboring kingdoms. The Earl of Chesterfield
+ (if my memory serves me right), in a letter to his court, intimates
+ that his success in an important negotiation must depend on his
+ obtaining a major's commission for one of those deputies. And in
+ Sweden the parties were alternately bought by France and England in
+ so barefaced and notorious a manner that it excited universal
+ disgust in the nation, and was a principal cause that the most
+ limited monarch in Europe, in a single day, without tumult,
+ violence, or opposition, became one of the most absolute and
+ uncontrolled.
+A circumstance which crowns the defects of the Confederation
+ remains yet to be mentioned, the want of a judiciary power. Laws
+ are a dead letter without courts to expound and define their true
+ meaning and operation. The treaties of the United States, to have
+ any force at all, must be considered as part of the law of the land.
+ Their true import, as far as respects individuals, must, like all
+ other laws, be ascertained by judicial determinations. To produce
+ uniformity in these determinations, they ought to be submitted, in
+ the last resort, to one SUPREME TRIBUNAL. And this tribunal ought
+ to be instituted under the same authority which forms the treaties
+ themselves. These ingredients are both indispensable. If there is
+ in each State a court of final jurisdiction, there may be as many
+ different final determinations on the same point as there are courts.
+ There are endless diversities in the opinions of men. We often
+ see not only different courts but the judges of the came court
+ differing from each other. To avoid the confusion which would
+ unavoidably result from the contradictory decisions of a number of
+ independent judicatories, all nations have found it necessary to
+ establish one court paramount to the rest, possessing a general
+ superintendence, and authorized to settle and declare in the last
+ resort a uniform rule of civil justice.
+This is the more necessary where the frame of the government is
+ so compounded that the laws of the whole are in danger of being
+ contravened by the laws of the parts. In this case, if the
+ particular tribunals are invested with a right of ultimate
+ jurisdiction, besides the contradictions to be expected from
+ difference of opinion, there will be much to fear from the bias of
+ local views and prejudices, and from the interference of local
+ regulations. As often as such an interference was to happen, there
+ would be reason to apprehend that the provisions of the particular
+ laws might be preferred to those of the general laws; for nothing
+ is more natural to men in office than to look with peculiar
+ deference towards that authority to which they owe their official
+ existence. The treaties of the United States, under the present
+ Constitution, are liable to the infractions of thirteen different
+ legislatures, and as many different courts of final jurisdiction,
+ acting under the authority of those legislatures. The faith, the
+ reputation, the peace of the whole Union, are thus continually at
+ the mercy of the prejudices, the passions, and the interests of
+ every member of which it is composed. Is it possible that foreign
+ nations can either respect or confide in such a government? Is it
+ possible that the people of America will longer consent to trust
+ their honor, their happiness, their safety, on so precarious a
+ foundation?
+In this review of the Confederation, I have confined myself to
+ the exhibition of its most material defects; passing over those
+ imperfections in its details by which even a great part of the power
+ intended to be conferred upon it has been in a great measure
+ rendered abortive. It must be by this time evident to all men of
+ reflection, who can divest themselves of the prepossessions of
+ preconceived opinions, that it is a system so radically vicious and
+ unsound, as to admit not of amendment but by an entire change in its
+ leading features and characters.
+The organization of Congress is itself utterly improper for the
+ exercise of those powers which are necessary to be deposited in the
+ Union. A single assembly may be a proper receptacle of those
+ slender, or rather fettered, authorities, which have been heretofore
+ delegated to the federal head; but it would be inconsistent with
+ all the principles of good government, to intrust it with those
+ additional powers which, even the moderate and more rational
+ adversaries of the proposed Constitution admit, ought to reside in
+ the United States. If that plan should not be adopted, and if the
+ necessity of the Union should be able to withstand the ambitious
+ aims of those men who may indulge magnificent schemes of personal
+ aggrandizement from its dissolution, the probability would be, that
+ we should run into the project of conferring supplementary powers
+ upon Congress, as they are now constituted; and either the machine,
+ from the intrinsic feebleness of its structure, will moulder into
+ pieces, in spite of our ill-judged efforts to prop it; or, by
+ successive augmentations of its force an energy, as necessity might
+ prompt, we shall finally accumulate, in a single body, all the most
+ important prerogatives of sovereignty, and thus entail upon our
+ posterity one of the most execrable forms of government that human
+ infatuation ever contrived. Thus, we should create in reality that
+ very tyranny which the adversaries of the new Constitution either
+ are, or affect to be, solicitous to avert.
+It has not a little contributed to the infirmities of the
+ existing federal system, that it never had a ratification by the
+ PEOPLE. Resting on no better foundation than the consent of the
+ several legislatures, it has been exposed to frequent and intricate
+ questions concerning the validity of its powers, and has, in some
+ instances, given birth to the enormous doctrine of a right of
+ legislative repeal. Owing its ratification to the law of a State,
+ it has been contended that the same authority might repeal the law
+ by which it was ratified. However gross a heresy it may be to
+ maintain that a PARTY to a COMPACT has a right to revoke that
+ COMPACT, the doctrine itself has had respectable advocates. The
+ possibility of a question of this nature proves the necessity of
+ laying the foundations of our national government deeper than in the
+ mere sanction of delegated authority. The fabric of American empire
+ ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
+ streams of national power ought to flow immediately from that pure,
+ original fountain of all legitimate authority.
+PUBLIUS.
+FNA1-@1 This, as nearly as I can recollect, was the sense of his
+ speech on introducing the last bill.
+FNA1-@2 Encyclopedia, article ``Empire.''
+FNA1-@3 New Hampshire, Rhode Island, New Jersey, Delaware, Georgia,
+ South Carolina, and Maryland are a majority of the whole number of
+ the States, but they do not contain one third of the people.
+FNA1-@4 Add New York and Connecticut to the foregoing seven, and they
+ will be less than a majority.
+
+
+FEDERALIST No. 23
+
+The Necessity of a Government as Energetic as the One Proposed to
+ the Preservation of the Union
+From the New York Packet.
+Tuesday, December 18, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+THE necessity of a Constitution, at least equally energetic with
+ the one proposed, to the preservation of the Union, is the point at
+ the examination of which we are now arrived.
+This inquiry will naturally divide itself into three
+ branches the objects to be provided for by the federal government,
+ the quantity of power necessary to the accomplishment of those
+ objects, the persons upon whom that power ought to operate. Its
+ distribution and organization will more properly claim our attention
+ under the succeeding head.
+The principal purposes to be answered by union are these the
+ common defense of the members; the preservation of the public peace
+ as well against internal convulsions as external attacks; the
+ regulation of commerce with other nations and between the States;
+ the superintendence of our intercourse, political and commercial,
+ with foreign countries.
+The authorities essential to the common defense are these: to
+ raise armies; to build and equip fleets; to prescribe rules for
+ the government of both; to direct their operations; to provide for
+ their support. These powers ought to exist without limitation,
+ BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY
+ OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF
+ THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances
+ that endanger the safety of nations are infinite, and for this
+ reason no constitutional shackles can wisely be imposed on the power
+ to which the care of it is committed. This power ought to be
+ coextensive with all the possible combinations of such
+ circumstances; and ought to be under the direction of the same
+ councils which are appointed to preside over the common defense.
+This is one of those truths which, to a correct and unprejudiced
+ mind, carries its own evidence along with it; and may be obscured,
+ but cannot be made plainer by argument or reasoning. It rests upon
+ axioms as simple as they are universal; the MEANS ought to be
+ proportioned to the END; the persons, from whose agency the
+ attainment of any END is expected, ought to possess the MEANS by
+ which it is to be attained.
+Whether there ought to be a federal government intrusted with
+ the care of the common defense, is a question in the first instance,
+ open for discussion; but the moment it is decided in the
+ affirmative, it will follow, that that government ought to be
+ clothed with all the powers requisite to complete execution of its
+ trust. And unless it can be shown that the circumstances which may
+ affect the public safety are reducible within certain determinate
+ limits; unless the contrary of this position can be fairly and
+ rationally disputed, it must be admitted, as a necessary
+ consequence, that there can be no limitation of that authority which
+ is to provide for the defense and protection of the community, in
+ any matter essential to its efficacy that is, in any matter
+ essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL
+ FORCES.
+Defective as the present Confederation has been proved to be,
+ this principle appears to have been fully recognized by the framers
+ of it; though they have not made proper or adequate provision for
+ its exercise. Congress have an unlimited discretion to make
+ requisitions of men and money; to govern the army and navy; to
+ direct their operations. As their requisitions are made
+ constitutionally binding upon the States, who are in fact under the
+ most solemn obligations to furnish the supplies required of them,
+ the intention evidently was that the United States should command
+ whatever resources were by them judged requisite to the ``common
+ defense and general welfare.'' It was presumed that a sense of
+ their true interests, and a regard to the dictates of good faith,
+ would be found sufficient pledges for the punctual performance of
+ the duty of the members to the federal head.
+The experiment has, however, demonstrated that this expectation
+ was ill-founded and illusory; and the observations, made under the
+ last head, will, I imagine, have sufficed to convince the impartial
+ and discerning, that there is an absolute necessity for an entire
+ change in the first principles of the system; that if we are in
+ earnest about giving the Union energy and duration, we must abandon
+ the vain project of legislating upon the States in their collective
+ capacities; we must extend the laws of the federal government to
+ the individual citizens of America; we must discard the fallacious
+ scheme of quotas and requisitions, as equally impracticable and
+ unjust. The result from all this is that the Union ought to be
+ invested with full power to levy troops; to build and equip fleets;
+ and to raise the revenues which will be required for the formation
+ and support of an army and navy, in the customary and ordinary modes
+ practiced in other governments.
+If the circumstances of our country are such as to demand a
+ compound instead of a simple, a confederate instead of a sole,
+ government, the essential point which will remain to be adjusted
+ will be to discriminate the OBJECTS, as far as it can be done, which
+ shall appertain to the different provinces or departments of power;
+ allowing to each the most ample authority for fulfilling the
+ objects committed to its charge. Shall the Union be constituted the
+ guardian of the common safety? Are fleets and armies and revenues
+ necessary to this purpose? The government of the Union must be
+ empowered to pass all laws, and to make all regulations which have
+ relation to them. The same must be the case in respect to commerce,
+ and to every other matter to which its jurisdiction is permitted to
+ extend. Is the administration of justice between the citizens of
+ the same State the proper department of the local governments?
+ These must possess all the authorities which are connected with
+ this object, and with every other that may be allotted to their
+ particular cognizance and direction. Not to confer in each case a
+ degree of power commensurate to the end, would be to violate the
+ most obvious rules of prudence and propriety, and improvidently to
+ trust the great interests of the nation to hands which are disabled
+ from managing them with vigor and success.
+Who is likely to make suitable provisions for the public
+ defense, as that body to which the guardianship of the public safety
+ is confided; which, as the centre of information, will best
+ understand the extent and urgency of the dangers that threaten; as
+ the representative of the WHOLE, will feel itself most deeply
+ interested in the preservation of every part; which, from the
+ responsibility implied in the duty assigned to it, will be most
+ sensibly impressed with the necessity of proper exertions; and
+ which, by the extension of its authority throughout the States, can
+ alone establish uniformity and concert in the plans and measures by
+ which the common safety is to be secured? Is there not a manifest
+ inconsistency in devolving upon the federal government the care of
+ the general defense, and leaving in the State governments the
+ EFFECTIVE powers by which it is to be provided for? Is not a want
+ of co-operation the infallible consequence of such a system? And
+ will not weakness, disorder, an undue distribution of the burdens
+ and calamities of war, an unnecessary and intolerable increase of
+ expense, be its natural and inevitable concomitants? Have we not
+ had unequivocal experience of its effects in the course of the
+ revolution which we have just accomplished?
+Every view we may take of the subject, as candid inquirers after
+ truth, will serve to convince us, that it is both unwise and
+ dangerous to deny the federal government an unconfined authority, as
+ to all those objects which are intrusted to its management. It will
+ indeed deserve the most vigilant and careful attention of the
+ people, to see that it be modeled in such a manner as to admit of
+ its being safely vested with the requisite powers. If any plan
+ which has been, or may be, offered to our consideration, should not,
+ upon a dispassionate inspection, be found to answer this
+ description, it ought to be rejected. A government, the
+ constitution of which renders it unfit to be trusted with all the
+ powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT,
+ would be an unsafe and improper depositary of the NATIONAL INTERESTS.
+ Wherever THESE can with propriety be confided, the coincident
+ powers may safely accompany them. This is the true result of all
+ just reasoning upon the subject. And the adversaries of the plan
+ promulgated by the convention ought to have confined themselves to
+ showing, that the internal structure of the proposed government was
+ such as to render it unworthy of the confidence of the people. They
+ ought not to have wandered into inflammatory declamations and
+ unmeaning cavils about the extent of the powers. The POWERS are not
+ too extensive for the OBJECTS of federal administration, or, in
+ other words, for the management of our NATIONAL INTERESTS; nor can
+ any satisfactory argument be framed to show that they are chargeable
+ with such an excess. If it be true, as has been insinuated by some
+ of the writers on the other side, that the difficulty arises from
+ the nature of the thing, and that the extent of the country will not
+ permit us to form a government in which such ample powers can safely
+ be reposed, it would prove that we ought to contract our views, and
+ resort to the expedient of separate confederacies, which will move
+ within more practicable spheres. For the absurdity must continually
+ stare us in the face of confiding to a government the direction of
+ the most essential national interests, without daring to trust it to
+ the authorities which are indispensible to their proper and
+ efficient management. Let us not attempt to reconcile
+ contradictions, but firmly embrace a rational alternative.
+I trust, however, that the impracticability of one general
+ system cannot be shown. I am greatly mistaken, if any thing of
+ weight has yet been advanced of this tendency; and I flatter
+ myself, that the observations which have been made in the course of
+ these papers have served to place the reverse of that position in as
+ clear a light as any matter still in the womb of time and experience
+ can be susceptible of. This, at all events, must be evident, that
+ the very difficulty itself, drawn from the extent of the country, is
+ the strongest argument in favor of an energetic government; for any
+ other can certainly never preserve the Union of so large an empire.
+ If we embrace the tenets of those who oppose the adoption of the
+ proposed Constitution, as the standard of our political creed, we
+ cannot fail to verify the gloomy doctrines which predict the
+ impracticability of a national system pervading entire limits of the
+ present Confederacy.
+PUBLIUS.
+
+
+FEDERALIST No. 24
+
+The Powers Necessary to the Common Defense Further Considered
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+To THE powers proposed to be conferred upon the federal
+ government, in respect to the creation and direction of the national
+ forces, I have met with but one specific objection, which, if I
+ understand it right, is this, that proper provision has not been
+ made against the existence of standing armies in time of peace; an
+ objection which, I shall now endeavor to show, rests on weak and
+ unsubstantial foundations.
+It has indeed been brought forward in the most vague and general
+ form, supported only by bold assertions, without the appearance of
+ argument; without even the sanction of theoretical opinions; in
+ contradiction to the practice of other free nations, and to the
+ general sense of America, as expressed in most of the existing
+ constitutions. The proprietory of this remark will appear, the
+ moment it is recollected that the objection under consideration
+ turns upon a supposed necessity of restraining the LEGISLATIVE
+ authority of the nation, in the article of military establishments;
+ a principle unheard of, except in one or two of our State
+ constitutions, and rejected in all the rest.
+A stranger to our politics, who was to read our newspapers at
+ the present juncture, without having previously inspected the plan
+ reported by the convention, would be naturally led to one of two
+ conclusions: either that it contained a positive injunction, that
+ standing armies should be kept up in time of peace; or that it
+ vested in the EXECUTIVE the whole power of levying troops, without
+ subjecting his discretion, in any shape, to the control of the
+ legislature.
+If he came afterwards to peruse the plan itself, he would be
+ surprised to discover, that neither the one nor the other was the
+ case; that the whole power of raising armies was lodged in the
+ LEGISLATURE, not in the EXECUTIVE; that this legislature was to be
+ a popular body, consisting of the representatives of the people
+ periodically elected; and that instead of the provision he had
+ supposed in favor of standing armies, there was to be found, in
+ respect to this object, an important qualification even of the
+ legislative discretion, in that clause which forbids the
+ appropriation of money for the support of an army for any longer
+ period than two years a precaution which, upon a nearer view of it,
+ will appear to be a great and real security against the keeping up
+ of troops without evident necessity.
+Disappointed in his first surmise, the person I have supposed
+ would be apt to pursue his conjectures a little further. He would
+ naturally say to himself, it is impossible that all this vehement
+ and pathetic declamation can be without some colorable pretext. It
+ must needs be that this people, so jealous of their liberties, have,
+ in all the preceding models of the constitutions which they have
+ established, inserted the most precise and rigid precautions on this
+ point, the omission of which, in the new plan, has given birth to
+ all this apprehension and clamor.
+If, under this impression, he proceeded to pass in review the
+ several State constitutions, how great would be his disappointment
+ to find that TWO ONLY of them [1] contained an interdiction of
+ standing armies in time of peace; that the other eleven had either
+ observed a profound silence on the subject, or had in express terms
+ admitted the right of the Legislature to authorize their existence.
+Still, however he would be persuaded that there must be some
+ plausible foundation for the cry raised on this head. He would
+ never be able to imagine, while any source of information remained
+ unexplored, that it was nothing more than an experiment upon the
+ public credulity, dictated either by a deliberate intention to
+ deceive, or by the overflowings of a zeal too intemperate to be
+ ingenuous. It would probably occur to him, that he would be likely
+ to find the precautions he was in search of in the primitive compact
+ between the States. Here, at length, he would expect to meet with a
+ solution of the enigma. No doubt, he would observe to himself, the
+ existing Confederation must contain the most explicit provisions
+ against military establishments in time of peace; and a departure
+ from this model, in a favorite point, has occasioned the discontent
+ which appears to influence these political champions.
+If he should now apply himself to a careful and critical survey
+ of the articles of Confederation, his astonishment would not only be
+ increased, but would acquire a mixture of indignation, at the
+ unexpected discovery, that these articles, instead of containing the
+ prohibition he looked for, and though they had, with jealous
+ circumspection, restricted the authority of the State legislatures
+ in this particular, had not imposed a single restraint on that of
+ the United States. If he happened to be a man of quick sensibility,
+ or ardent temper, he could now no longer refrain from regarding
+ these clamors as the dishonest artifices of a sinister and
+ unprincipled opposition to a plan which ought at least to receive a
+ fair and candid examination from all sincere lovers of their
+ country! How else, he would say, could the authors of them have
+ been tempted to vent such loud censures upon that plan, about a
+ point in which it seems to have conformed itself to the general
+ sense of America as declared in its different forms of government,
+ and in which it has even superadded a new and powerful guard unknown
+ to any of them? If, on the contrary, he happened to be a man of
+ calm and dispassionate feelings, he would indulge a sigh for the
+ frailty of human nature, and would lament, that in a matter so
+ interesting to the happiness of millions, the true merits of the
+ question should be perplexed and entangled by expedients so
+ unfriendly to an impartial and right determination. Even such a man
+ could hardly forbear remarking, that a conduct of this kind has too
+ much the appearance of an intention to mislead the people by
+ alarming their passions, rather than to convince them by arguments
+ addressed to their understandings.
+But however little this objection may be countenanced, even by
+ precedents among ourselves, it may be satisfactory to take a nearer
+ view of its intrinsic merits. From a close examination it will
+ appear that restraints upon the discretion of the legislature in
+ respect to military establishments in time of peace, would be
+ improper to be imposed, and if imposed, from the necessities of
+ society, would be unlikely to be observed.
+Though a wide ocean separates the United States from Europe, yet
+ there are various considerations that warn us against an excess of
+ confidence or security. On one side of us, and stretching far into
+ our rear, are growing settlements subject to the dominion of Britain.
+ On the other side, and extending to meet the British settlements,
+ are colonies and establishments subject to the dominion of Spain.
+ This situation and the vicinity of the West India Islands,
+ belonging to these two powers create between them, in respect to
+ their American possessions and in relation to us, a common interest.
+ The savage tribes on our Western frontier ought to be regarded as
+ our natural enemies, their natural allies, because they have most to
+ fear from us, and most to hope from them. The improvements in the
+ art of navigation have, as to the facility of communication,
+ rendered distant nations, in a great measure, neighbors. Britain
+ and Spain are among the principal maritime powers of Europe. A
+ future concert of views between these nations ought not to be
+ regarded as improbable. The increasing remoteness of consanguinity
+ is every day diminishing the force of the family compact between
+ France and Spain. And politicians have ever with great reason
+ considered the ties of blood as feeble and precarious links of
+ political connection. These circumstances combined, admonish us not
+ to be too sanguine in considering ourselves as entirely out of the
+ reach of danger.
+Previous to the Revolution, and ever since the peace, there has
+ been a constant necessity for keeping small garrisons on our Western
+ frontier. No person can doubt that these will continue to be
+ indispensable, if it should only be against the ravages and
+ depredations of the Indians. These garrisons must either be
+ furnished by occasional detachments from the militia, or by
+ permanent corps in the pay of the government. The first is
+ impracticable; and if practicable, would be pernicious. The
+ militia would not long, if at all, submit to be dragged from their
+ occupations and families to perform that most disagreeable duty in
+ times of profound peace. And if they could be prevailed upon or
+ compelled to do it, the increased expense of a frequent rotation of
+ service, and the loss of labor and disconcertion of the industrious
+ pursuits of individuals, would form conclusive objections to the
+ scheme. It would be as burdensome and injurious to the public as
+ ruinous to private citizens. The latter resource of permanent corps
+ in the pay of the government amounts to a standing army in time of
+ peace; a small one, indeed, but not the less real for being small.
+ Here is a simple view of the subject, that shows us at once the
+ impropriety of a constitutional interdiction of such establishments,
+ and the necessity of leaving the matter to the discretion and
+ prudence of the legislature.
+In proportion to our increase in strength, it is probable, nay,
+ it may be said certain, that Britain and Spain would augment their
+ military establishments in our neighborhood. If we should not be
+ willing to be exposed, in a naked and defenseless condition, to
+ their insults and encroachments, we should find it expedient to
+ increase our frontier garrisons in some ratio to the force by which
+ our Western settlements might be annoyed. There are, and will be,
+ particular posts, the possession of which will include the command
+ of large districts of territory, and facilitate future invasions of
+ the remainder. It may be added that some of those posts will be
+ keys to the trade with the Indian nations. Can any man think it
+ would be wise to leave such posts in a situation to be at any
+ instant seized by one or the other of two neighboring and formidable
+ powers? To act this part would be to desert all the usual maxims of
+ prudence and policy.
+If we mean to be a commercial people, or even to be secure on
+ our Atlantic side, we must endeavor, as soon as possible, to have a
+ navy. To this purpose there must be dock-yards and arsenals; and
+ for the defense of these, fortifications, and probably garrisons.
+ When a nation has become so powerful by sea that it can protect its
+ dock-yards by its fleets, this supersedes the necessity of garrisons
+ for that purpose; but where naval establishments are in their
+ infancy, moderate garrisons will, in all likelihood, be found an
+ indispensable security against descents for the destruction of the
+ arsenals and dock-yards, and sometimes of the fleet itself.
+PUBLIUS.
+FNA1-@1 This statement of the matter is taken from the printed
+ collection of State constitutions. Pennsylvania and North Carolina
+ are the two which contain the interdiction in these words: ``As
+ standing armies in time of peace are dangerous to liberty, THEY
+ OUGHT NOT to be kept up.'' This is, in truth, rather a CAUTION than
+ a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland
+ have, in each of their bils of rights, a clause to this effect:
+ ``Standing armies are dangerous to liberty, and ought not to be
+ raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE''; which
+ is a formal admission of the authority of the Legislature. New York
+ has no bills of rights, and her constitution says not a word about
+ the matter. No bills of rights appear annexed to the constitutions
+ of the other States, except the foregoing, and their constitutions
+ are equally silent. I am told, however that one or two States have
+ bills of rights which do not appear in this collection; but that
+ those also recognize the right of the legislative authority in this
+ respect.
+
+
+FEDERALIST No. 25
+
+The Same Subject Continued
+(The Powers Necessary to the Common Defense Further Considered)
+From the New York Packet.
+Friday, December 21, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+IT MAY perhaps be urged that the objects enumerated in the
+ preceding number ought to be provided for by the State governments,
+ under the direction of the Union. But this would be, in reality, an
+ inversion of the primary principle of our political association, as
+ it would in practice transfer the care of the common defense from
+ the federal head to the individual members: a project oppressive to
+ some States, dangerous to all, and baneful to the Confederacy.
+The territories of Britain, Spain, and of the Indian nations in
+ our neighborhood do not border on particular States, but encircle
+ the Union from Maine to Georgia. The danger, though in different
+ degrees, is therefore common. And the means of guarding against it
+ ought, in like manner, to be the objects of common councils and of a
+ common treasury. It happens that some States, from local situation,
+ are more directly exposed. New York is of this class. Upon the
+ plan of separate provisions, New York would have to sustain the
+ whole weight of the establishments requisite to her immediate
+ safety, and to the mediate or ultimate protection of her neighbors.
+ This would neither be equitable as it respected New York nor safe
+ as it respected the other States. Various inconveniences would
+ attend such a system. The States, to whose lot it might fall to
+ support the necessary establishments, would be as little able as
+ willing, for a considerable time to come, to bear the burden of
+ competent provisions. The security of all would thus be subjected
+ to the parsimony, improvidence, or inability of a part. If the
+ resources of such part becoming more abundant and extensive, its
+ provisions should be proportionally enlarged, the other States would
+ quickly take the alarm at seeing the whole military force of the
+ Union in the hands of two or three of its members, and those
+ probably amongst the most powerful. They would each choose to have
+ some counterpoise, and pretenses could easily be contrived. In this
+ situation, military establishments, nourished by mutual jealousy,
+ would be apt to swell beyond their natural or proper size; and
+ being at the separate disposal of the members, they would be engines
+ for the abridgment or demolition of the national authority.
+Reasons have been already given to induce a supposition that the
+ State governments will too naturally be prone to a rivalship with
+ that of the Union, the foundation of which will be the love of
+ power; and that in any contest between the federal head and one of
+ its members the people will be most apt to unite with their local
+ government. If, in addition to this immense advantage, the ambition
+ of the members should be stimulated by the separate and independent
+ possession of military forces, it would afford too strong a
+ temptation and too great a facility to them to make enterprises
+ upon, and finally to subvert, the constitutional authority of the
+ Union. On the other hand, the liberty of the people would be less
+ safe in this state of things than in that which left the national
+ forces in the hands of the national government. As far as an army
+ may be considered as a dangerous weapon of power, it had better be
+ in those hands of which the people are most likely to be jealous
+ than in those of which they are least likely to be jealous. For it
+ is a truth, which the experience of ages has attested, that the
+ people are always most in danger when the means of injuring their
+ rights are in the possession of those of whom they entertain the
+ least suspicion.
+The framers of the existing Confederation, fully aware of the
+ danger to the Union from the separate possession of military forces
+ by the States, have, in express terms, prohibited them from having
+ either ships or troops, unless with the consent of Congress. The
+ truth is, that the existence of a federal government and military
+ establishments under State authority are not less at variance with
+ each other than a due supply of the federal treasury and the system
+ of quotas and requisitions.
+There are other lights besides those already taken notice of, in
+ which the impropriety of restraints on the discretion of the
+ national legislature will be equally manifest. The design of the
+ objection, which has been mentioned, is to preclude standing armies
+ in time of peace, though we have never been informed how far it is
+ designed the prohibition should extend; whether to raising armies
+ as well as to KEEPING THEM UP in a season of tranquillity or not.
+ If it be confined to the latter it will have no precise
+ signification, and it will be ineffectual for the purpose intended.
+ When armies are once raised what shall be denominated ``keeping
+ them up,'' contrary to the sense of the Constitution? What time
+ shall be requisite to ascertain the violation? Shall it be a week,
+ a month, a year? Or shall we say they may be continued as long as
+ the danger which occasioned their being raised continues? This
+ would be to admit that they might be kept up IN TIME OF PEACE,
+ against threatening or impending danger, which would be at once to
+ deviate from the literal meaning of the prohibition, and to
+ introduce an extensive latitude of construction. Who shall judge of
+ the continuance of the danger? This must undoubtedly be submitted
+ to the national government, and the matter would then be brought to
+ this issue, that the national government, to provide against
+ apprehended danger, might in the first instance raise troops, and
+ might afterwards keep them on foot as long as they supposed the
+ peace or safety of the community was in any degree of jeopardy. It
+ is easy to perceive that a discretion so latitudinary as this would
+ afford ample room for eluding the force of the provision.
+The supposed utility of a provision of this kind can only be
+ founded on the supposed probability, or at least possibility, of a
+ combination between the executive and the legislative, in some
+ scheme of usurpation. Should this at any time happen, how easy
+ would it be to fabricate pretenses of approaching danger! Indian
+ hostilities, instigated by Spain or Britain, would always be at hand.
+ Provocations to produce the desired appearances might even be
+ given to some foreign power, and appeased again by timely
+ concessions. If we can reasonably presume such a combination to
+ have been formed, and that the enterprise is warranted by a
+ sufficient prospect of success, the army, when once raised, from
+ whatever cause, or on whatever pretext, may be applied to the
+ execution of the project.
+If, to obviate this consequence, it should be resolved to extend
+ the prohibition to the RAISING of armies in time of peace, the
+ United States would then exhibit the most extraordinary spectacle
+ which the world has yet seen, that of a nation incapacitated by its
+ Constitution to prepare for defense, before it was actually invaded.
+ As the ceremony of a formal denunciation of war has of late fallen
+ into disuse, the presence of an enemy within our territories must be
+ waited for, as the legal warrant to the government to begin its
+ levies of men for the protection of the State. We must receive the
+ blow, before we could even prepare to return it. All that kind of
+ policy by which nations anticipate distant danger, and meet the
+ gathering storm, must be abstained from, as contrary to the genuine
+ maxims of a free government. We must expose our property and
+ liberty to the mercy of foreign invaders, and invite them by our
+ weakness to seize the naked and defenseless prey, because we are
+ afraid that rulers, created by our choice, dependent on our will,
+ might endanger that liberty, by an abuse of the means necessary to
+ its preservation.
+Here I expect we shall be told that the militia of the country
+ is its natural bulwark, and would be at all times equal to the
+ national defense. This doctrine, in substance, had like to have
+ lost us our independence. It cost millions to the United States
+ that might have been saved. The facts which, from our own
+ experience, forbid a reliance of this kind, are too recent to permit
+ us to be the dupes of such a suggestion. The steady operations of
+ war against a regular and disciplined army can only be successfully
+ conducted by a force of the same kind. Considerations of economy,
+ not less than of stability and vigor, confirm this position. The
+ American militia, in the course of the late war, have, by their
+ valor on numerous occasions, erected eternal monuments to their
+ fame; but the bravest of them feel and know that the liberty of
+ their country could not have been established by their efforts
+ alone, however great and valuable they were. War, like most other
+ things, is a science to be acquired and perfected by diligence, by
+ perserverance, by time, and by practice.
+All violent policy, as it is contrary to the natural and
+ experienced course of human affairs, defeats itself. Pennsylvania,
+ at this instant, affords an example of the truth of this remark.
+ The Bill of Rights of that State declares that standing armies are
+ dangerous to liberty, and ought not to be kept up in time of peace.
+ Pennsylvania, nevertheless, in a time of profound peace, from the
+ existence of partial disorders in one or two of her counties, has
+ resolved to raise a body of troops; and in all probability will
+ keep them up as long as there is any appearance of danger to the
+ public peace. The conduct of Massachusetts affords a lesson on the
+ same subject, though on different ground. That State (without
+ waiting for the sanction of Congress, as the articles of the
+ Confederation require) was compelled to raise troops to quell a
+ domestic insurrection, and still keeps a corps in pay to prevent a
+ revival of the spirit of revolt. The particular constitution of
+ Massachusetts opposed no obstacle to the measure; but the instance
+ is still of use to instruct us that cases are likely to occur under
+ our government, as well as under those of other nations, which will
+ sometimes render a military force in time of peace essential to the
+ security of the society, and that it is therefore improper in this
+ respect to control the legislative discretion. It also teaches us,
+ in its application to the United States, how little the rights of a
+ feeble government are likely to be respected, even by its own
+ constituents. And it teaches us, in addition to the rest, how
+ unequal parchment provisions are to a struggle with public necessity.
+It was a fundamental maxim of the Lacedaemonian commonwealth,
+ that the post of admiral should not be conferred twice on the same
+ person. The Peloponnesian confederates, having suffered a severe
+ defeat at sea from the Athenians, demanded Lysander, who had before
+ served with success in that capacity, to command the combined fleets.
+ The Lacedaemonians, to gratify their allies, and yet preserve the
+ semblance of an adherence to their ancient institutions, had
+ recourse to the flimsy subterfuge of investing Lysander with the
+ real power of admiral, under the nominal title of vice-admiral.
+ This instance is selected from among a multitude that might be
+ cited to confirm the truth already advanced and illustrated by
+ domestic examples; which is, that nations pay little regard to
+ rules and maxims calculated in their very nature to run counter to
+ the necessities of society. Wise politicians will be cautious about
+ fettering the government with restrictions that cannot be observed,
+ because they know that every breach of the fundamental laws, though
+ dictated by necessity, impairs that sacred reverence which ought to
+ be maintained in the breast of rulers towards the constitution of a
+ country, and forms a precedent for other breaches where the same
+ plea of necessity does not exist at all, or is less urgent and
+ palpable.
+PUBLIUS.
+
+
+FEDERALIST No. 26
+
+The Idea of Restraining the Legislative Authority in Regard to the
+ Common Defense Considered
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+IT WAS a thing hardly to be expected that in a popular
+ revolution the minds of men should stop at that happy mean which
+ marks the salutary boundary between POWER and PRIVILEGE, and
+ combines the energy of government with the security of private
+ rights. A failure in this delicate and important point is the great
+ source of the inconveniences we experience, and if we are not
+ cautious to avoid a repetition of the error, in our future attempts
+ to rectify and ameliorate our system, we may travel from one
+ chimerical project to another; we may try change after change; but
+ we shall never be likely to make any material change for the better.
+The idea of restraining the legislative authority, in the means
+ of providing for the national defense, is one of those refinements
+ which owe their origin to a zeal for liberty more ardent than
+ enlightened. We have seen, however, that it has not had thus far an
+ extensive prevalency; that even in this country, where it made its
+ first appearance, Pennsylvania and North Carolina are the only two
+ States by which it has been in any degree patronized; and that all
+ the others have refused to give it the least countenance; wisely
+ judging that confidence must be placed somewhere; that the
+ necessity of doing it, is implied in the very act of delegating
+ power; and that it is better to hazard the abuse of that confidence
+ than to embarrass the government and endanger the public safety by
+ impolitic restrictions on the legislative authority. The opponents
+ of the proposed Constitution combat, in this respect, the general
+ decision of America; and instead of being taught by experience the
+ propriety of correcting any extremes into which we may have
+ heretofore run, they appear disposed to conduct us into others still
+ more dangerous, and more extravagant. As if the tone of government
+ had been found too high, or too rigid, the doctrines they teach are
+ calculated to induce us to depress or to relax it, by expedients
+ which, upon other occasions, have been condemned or forborne. It
+ may be affirmed without the imputation of invective, that if the
+ principles they inculcate, on various points, could so far obtain as
+ to become the popular creed, they would utterly unfit the people of
+ this country for any species of government whatever. But a danger
+ of this kind is not to be apprehended. The citizens of America have
+ too much discernment to be argued into anarchy. And I am much
+ mistaken, if experience has not wrought a deep and solemn conviction
+ in the public mind, that greater energy of government is essential
+ to the welfare and prosperity of the community.
+It may not be amiss in this place concisely to remark the origin
+ and progress of the idea, which aims at the exclusion of military
+ establishments in time of peace. Though in speculative minds it may
+ arise from a contemplation of the nature and tendency of such
+ institutions, fortified by the events that have happened in other
+ ages and countries, yet as a national sentiment, it must be traced
+ to those habits of thinking which we derive from the nation from
+ whom the inhabitants of these States have in general sprung.
+In England, for a long time after the Norman Conquest, the
+ authority of the monarch was almost unlimited. Inroads were
+ gradually made upon the prerogative, in favor of liberty, first by
+ the barons, and afterwards by the people, till the greatest part of
+ its most formidable pretensions became extinct. But it was not till
+ the revolution in 1688, which elevated the Prince of Orange to the
+ throne of Great Britain, that English liberty was completely
+ triumphant. As incident to the undefined power of making war, an
+ acknowledged prerogative of the crown, Charles II. had, by his own
+ authority, kept on foot in time of peace a body of 5,000 regular
+ troops. And this number James II. increased to 30,000; who were
+ paid out of his civil list. At the revolution, to abolish the
+ exercise of so dangerous an authority, it became an article of the
+ Bill of Rights then framed, that ``the raising or keeping a standing
+ army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF
+ PARLIAMENT, was against law.''
+In that kingdom, when the pulse of liberty was at its highest
+ pitch, no security against the danger of standing armies was thought
+ requisite, beyond a prohibition of their being raised or kept up by
+ the mere authority of the executive magistrate. The patriots, who
+ effected that memorable revolution, were too temperate, too
+ wellinformed, to think of any restraint on the legislative
+ discretion. They were aware that a certain number of troops for
+ guards and garrisons were indispensable; that no precise bounds
+ could be set to the national exigencies; that a power equal to
+ every possible contingency must exist somewhere in the government:
+ and that when they referred the exercise of that power to the
+ judgment of the legislature, they had arrived at the ultimate point
+ of precaution which was reconcilable with the safety of the
+ community.
+From the same source, the people of America may be said to have
+ derived an hereditary impression of danger to liberty, from standing
+ armies in time of peace. The circumstances of a revolution
+ quickened the public sensibility on every point connected with the
+ security of popular rights, and in some instances raise the warmth
+ of our zeal beyond the degree which consisted with the due
+ temperature of the body politic. The attempts of two of the States
+ to restrict the authority of the legislature in the article of
+ military establishments, are of the number of these instances. The
+ principles which had taught us to be jealous of the power of an
+ hereditary monarch were by an injudicious excess extended to the
+ representatives of the people in their popular assemblies. Even in
+ some of the States, where this error was not adopted, we find
+ unnecessary declarations that standing armies ought not to be kept
+ up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I
+ call them unnecessary, because the reason which had introduced a
+ similar provision into the English Bill of Rights is not applicable
+ to any of the State constitutions. The power of raising armies at
+ all, under those constitutions, can by no construction be deemed to
+ reside anywhere else, than in the legislatures themselves; and it
+ was superfluous, if not absurd, to declare that a matter should not
+ be done without the consent of a body, which alone had the power of
+ doing it. Accordingly, in some of these constitutions, and among
+ others, in that of this State of New York, which has been justly
+ celebrated, both in Europe and America, as one of the best of the
+ forms of government established in this country, there is a total
+ silence upon the subject.
+It is remarkable, that even in the two States which seem to have
+ meditated an interdiction of military establishments in time of
+ peace, the mode of expression made use of is rather cautionary than
+ prohibitory. It is not said, that standing armies SHALL NOT BE kept
+ up, but that they OUGHT NOT to be kept up, in time of peace. This
+ ambiguity of terms appears to have been the result of a conflict
+ between jealousy and conviction; between the desire of excluding
+ such establishments at all events, and the persuasion that an
+ absolute exclusion would be unwise and unsafe.
+Can it be doubted that such a provision, whenever the situation
+ of public affairs was understood to require a departure from it,
+ would be interpreted by the legislature into a mere admonition, and
+ would be made to yield to the necessities or supposed necessities of
+ the State? Let the fact already mentioned, with respect to
+ Pennsylvania, decide. What then (it may be asked) is the use of
+ such a provision, if it cease to operate the moment there is an
+ inclination to disregard it?
+Let us examine whether there be any comparison, in point of
+ efficacy, between the provision alluded to and that which is
+ contained in the new Constitution, for restraining the
+ appropriations of money for military purposes to the period of two
+ years. The former, by aiming at too much, is calculated to effect
+ nothing; the latter, by steering clear of an imprudent extreme, and
+ by being perfectly compatible with a proper provision for the
+ exigencies of the nation, will have a salutary and powerful
+ operation.
+The legislature of the United States will be OBLIGED, by this
+ provision, once at least in every two years, to deliberate upon the
+ propriety of keeping a military force on foot; to come to a new
+ resolution on the point; and to declare their sense of the matter,
+ by a formal vote in the face of their constituents. They are not AT
+ LIBERTY to vest in the executive department permanent funds for the
+ support of an army, if they were even incautious enough to be
+ willing to repose in it so improper a confidence. As the spirit of
+ party, in different degrees, must be expected to infect all
+ political bodies, there will be, no doubt, persons in the national
+ legislature willing enough to arraign the measures and criminate the
+ views of the majority. The provision for the support of a military
+ force will always be a favorable topic for declamation. As often as
+ the question comes forward, the public attention will be roused and
+ attracted to the subject, by the party in opposition; and if the
+ majority should be really disposed to exceed the proper limits, the
+ community will be warned of the danger, and will have an opportunity
+ of taking measures to guard against it. Independent of parties in
+ the national legislature itself, as often as the period of
+ discussion arrived, the State legislatures, who will always be not
+ only vigilant but suspicious and jealous guardians of the rights of
+ the citizens against encroachments from the federal government, will
+ constantly have their attention awake to the conduct of the national
+ rulers, and will be ready enough, if any thing improper appears, to
+ sound the alarm to the people, and not only to be the VOICE, but, if
+ necessary, the ARM of their discontent.
+Schemes to subvert the liberties of a great community REQUIRE
+ TIME to mature them for execution. An army, so large as seriously
+ to menace those liberties, could only be formed by progressive
+ augmentations; which would suppose, not merely a temporary
+ combination between the legislature and executive, but a continued
+ conspiracy for a series of time. Is it probable that such a
+ combination would exist at all? Is it probable that it would be
+ persevered in, and transmitted along through all the successive
+ variations in a representative body, which biennial elections would
+ naturally produce in both houses? Is it presumable, that every man,
+ the instant he took his seat in the national Senate or House of
+ Representatives, would commence a traitor to his constituents and to
+ his country? Can it be supposed that there would not be found one
+ man, discerning enough to detect so atrocious a conspiracy, or bold
+ or honest enough to apprise his constituents of their danger? If
+ such presumptions can fairly be made, there ought at once to be an
+ end of all delegated authority. The people should resolve to recall
+ all the powers they have heretofore parted with out of their own
+ hands, and to divide themselves into as many States as there are
+ counties, in order that they may be able to manage their own
+ concerns in person.
+If such suppositions could even be reasonably made, still the
+ concealment of the design, for any duration, would be impracticable.
+ It would be announced, by the very circumstance of augmenting the
+ army to so great an extent in time of profound peace. What
+ colorable reason could be assigned, in a country so situated, for
+ such vast augmentations of the military force? It is impossible
+ that the people could be long deceived; and the destruction of the
+ project, and of the projectors, would quickly follow the discovery.
+It has been said that the provision which limits the
+ appropriation of money for the support of an army to the period of
+ two years would be unavailing, because the Executive, when once
+ possessed of a force large enough to awe the people into submission,
+ would find resources in that very force sufficient to enable him to
+ dispense with supplies from the acts of the legislature. But the
+ question again recurs, upon what pretense could he be put in
+ possession of a force of that magnitude in time of peace? If we
+ suppose it to have been created in consequence of some domestic
+ insurrection or foreign war, then it becomes a case not within the
+ principles of the objection; for this is levelled against the power
+ of keeping up troops in time of peace. Few persons will be so
+ visionary as seriously to contend that military forces ought not to
+ be raised to quell a rebellion or resist an invasion; and if the
+ defense of the community under such circumstances should make it
+ necessary to have an army so numerous as to hazard its liberty, this
+ is one of those calamaties for which there is neither preventative
+ nor cure. It cannot be provided against by any possible form of
+ government; it might even result from a simple league offensive and
+ defensive, if it should ever be necessary for the confederates or
+ allies to form an army for common defense.
+But it is an evil infinitely less likely to attend us in a
+ united than in a disunited state; nay, it may be safely asserted
+ that it is an evil altogether unlikely to attend us in the latter
+ situation. It is not easy to conceive a possibility that dangers so
+ formidable can assail the whole Union, as to demand a force
+ considerable enough to place our liberties in the least jeopardy,
+ especially if we take into our view the aid to be derived from the
+ militia, which ought always to be counted upon as a valuable and
+ powerful auxiliary. But in a state of disunion (as has been fully
+ shown in another place), the contrary of this supposition would
+ become not only probable, but almost unavoidable.
+PUBLIUS.
+
+
+FEDERALIST No. 27
+
+The Same Subject Continued
+(The Idea of Restraining the Legislative Authority in Regard to
+ the Common Defense Considered)
+From the New York Packet.
+Tuesday, December 25, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+IT HAS been urged, in different shapes, that a Constitution of
+ the kind proposed by the convention cannot operate without the aid
+ of a military force to execute its laws. This, however, like most
+ other things that have been alleged on that side, rests on mere
+ general assertion, unsupported by any precise or intelligible
+ designation of the reasons upon which it is founded. As far as I
+ have been able to divine the latent meaning of the objectors, it
+ seems to originate in a presupposition that the people will be
+ disinclined to the exercise of federal authority in any matter of an
+ internal nature. Waiving any exception that might be taken to the
+ inaccuracy or inexplicitness of the distinction between internal and
+ external, let us inquire what ground there is to presuppose that
+ disinclination in the people. Unless we presume at the same time
+ that the powers of the general government will be worse administered
+ than those of the State government, there seems to be no room for
+ the presumption of ill-will, disaffection, or opposition in the
+ people. I believe it may be laid down as a general rule that their
+ confidence in and obedience to a government will commonly be
+ proportioned to the goodness or badness of its administration. It
+ must be admitted that there are exceptions to this rule; but these
+ exceptions depend so entirely on accidental causes, that they cannot
+ be considered as having any relation to the intrinsic merits or
+ demerits of a constitution. These can only be judged of by general
+ principles and maxims.
+Various reasons have been suggested, in the course of these
+ papers, to induce a probability that the general government will be
+ better administered than the particular governments; the principal
+ of which reasons are that the extension of the spheres of election
+ will present a greater option, or latitude of choice, to the people;
+ that through the medium of the State legislatures which are select
+ bodies of men, and which are to appoint the members of the national
+ Senate there is reason to expect that this branch will generally be
+ composed with peculiar care and judgment; that these circumstances
+ promise greater knowledge and more extensive information in the
+ national councils, and that they will be less apt to be tainted by
+ the spirit of faction, and more out of the reach of those occasional
+ ill-humors, or temporary prejudices and propensities, which, in
+ smaller societies, frequently contaminate the public councils, beget
+ injustice and oppression of a part of the community, and engender
+ schemes which, though they gratify a momentary inclination or
+ desire, terminate in general distress, dissatisfaction, and disgust.
+ Several additional reasons of considerable force, to fortify that
+ probability, will occur when we come to survey, with a more critical
+ eye, the interior structure of the edifice which we are invited to
+ erect. It will be sufficient here to remark, that until
+ satisfactory reasons can be assigned to justify an opinion, that the
+ federal government is likely to be administered in such a manner as
+ to render it odious or contemptible to the people, there can be no
+ reasonable foundation for the supposition that the laws of the Union
+ will meet with any greater obstruction from them, or will stand in
+ need of any other methods to enforce their execution, than the laws
+ of the particular members.
+The hope of impunity is a strong incitement to sedition; the
+ dread of punishment, a proportionably strong discouragement to it.
+ Will not the government of the Union, which, if possessed of a due
+ degree of power, can call to its aid the collective resources of the
+ whole Confederacy, be more likely to repress the FORMER sentiment
+ and to inspire the LATTER, than that of a single State, which can
+ only command the resources within itself? A turbulent faction in a
+ State may easily suppose itself able to contend with the friends to
+ the government in that State; but it can hardly be so infatuated as
+ to imagine itself a match for the combined efforts of the Union. If
+ this reflection be just, there is less danger of resistance from
+ irregular combinations of individuals to the authority of the
+ Confederacy than to that of a single member.
+I will, in this place, hazard an observation, which will not be
+ the less just because to some it may appear new; which is, that the
+ more the operations of the national authority are intermingled in
+ the ordinary exercise of government, the more the citizens are
+ accustomed to meet with it in the common occurrences of their
+ political life, the more it is familiarized to their sight and to
+ their feelings, the further it enters into those objects which touch
+ the most sensible chords and put in motion the most active springs
+ of the human heart, the greater will be the probability that it will
+ conciliate the respect and attachment of the community. Man is very
+ much a creature of habit. A thing that rarely strikes his senses
+ will generally have but little influence upon his mind. A
+ government continually at a distance and out of sight can hardly be
+ expected to interest the sensations of the people. The inference
+ is, that the authority of the Union, and the affections of the
+ citizens towards it, will be strengthened, rather than weakened, by
+ its extension to what are called matters of internal concern; and
+ will have less occasion to recur to force, in proportion to the
+ familiarity and comprehensiveness of its agency. The more it
+ circulates through those channels and currents in which the passions
+ of mankind naturally flow, the less will it require the aid of the
+ violent and perilous expedients of compulsion.
+One thing, at all events, must be evident, that a government
+ like the one proposed would bid much fairer to avoid the necessity
+ of using force, than that species of league contend for by most of
+ its opponents; the authority of which should only operate upon the
+ States in their political or collective capacities. It has been
+ shown that in such a Confederacy there can be no sanction for the
+ laws but force; that frequent delinquencies in the members are the
+ natural offspring of the very frame of the government; and that as
+ often as these happen, they can only be redressed, if at all, by war
+ and violence.
+The plan reported by the convention, by extending the authority
+ of the federal head to the individual citizens of the several
+ States, will enable the government to employ the ordinary magistracy
+ of each, in the execution of its laws. It is easy to perceive that
+ this will tend to destroy, in the common apprehension, all
+ distinction between the sources from which they might proceed; and
+ will give the federal government the same advantage for securing a
+ due obedience to its authority which is enjoyed by the government of
+ each State, in addition to the influence on public opinion which
+ will result from the important consideration of its having power to
+ call to its assistance and support the resources of the whole Union.
+ It merits particular attention in this place, that the laws of the
+ Confederacy, as to the ENUMERATED and LEGITIMATE objects of its
+ jurisdiction, will become the SUPREME LAW of the land; to the
+ observance of which all officers, legislative, executive, and
+ judicial, in each State, will be bound by the sanctity of an oath.
+ Thus the legislatures, courts, and magistrates, of the respective
+ members, will be incorporated into the operations of the national
+ government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS;
+ and will be rendered auxiliary to the enforcement of its laws. [1%]
+ Any man who will pursue, by his own reflections, the consequences
+ of this situation, will perceive that there is good ground to
+ calculate upon a regular and peaceable execution of the laws of the
+ Union, if its powers are administered with a common share of
+ prudence. If we will arbitrarily suppose the contrary, we may
+ deduce any inferences we please from the supposition; for it is
+ certainly possible, by an injudicious exercise of the authorities of
+ the best government that ever was, or ever can be instituted, to
+ provoke and precipitate the people into the wildest excesses. But
+ though the adversaries of the proposed Constitution should presume
+ that the national rulers would be insensible to the motives of
+ public good, or to the obligations of duty, I would still ask them
+ how the interests of ambition, or the views of encroachment, can be
+ promoted by such a conduct?
+PUBLIUS.
+FNA1-@1 The sophistry which has been employed to show that this will
+ tend to the destruction of the State governments, will, in its will,
+ in its proper place, be fully detected.
+
+
+FEDERALIST No. 28
+
+The Same Subject Continued
+(The Idea of Restraining the Legislative Authority in Regard to
+ the Common Defense Considered)
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+THAT there may happen cases in which the national government may
+ be necessitated to resort to force, cannot be denied. Our own
+ experience has corroborated the lessons taught by the examples of
+ other nations; that emergencies of this sort will sometimes arise
+ in all societies, however constituted; that seditions and
+ insurrections are, unhappily, maladies as inseparable from the body
+ politic as tumors and eruptions from the natural body; that the
+ idea of governing at all times by the simple force of law (which we
+ have been told is the only admissible principle of republican
+ government), has no place but in the reveries of those political
+ doctors whose sagacity disdains the admonitions of experimental
+ instruction.
+Should such emergencies at any time happen under the national
+ government, there could be no remedy but force. The means to be
+ employed must be proportioned to the extent of the mischief. If it
+ should be a slight commotion in a small part of a State, the militia
+ of the residue would be adequate to its suppression; and the
+ national presumption is that they would be ready to do their duty.
+ An insurrection, whatever may be its immediate cause, eventually
+ endangers all government. Regard to the public peace, if not to the
+ rights of the Union, would engage the citizens to whom the contagion
+ had not communicated itself to oppose the insurgents; and if the
+ general government should be found in practice conducive to the
+ prosperity and felicity of the people, it were irrational to believe
+ that they would be disinclined to its support.
+If, on the contrary, the insurrection should pervade a whole
+ State, or a principal part of it, the employment of a different kind
+ of force might become unavoidable. It appears that Massachusetts
+ found it necessary to raise troops for repressing the disorders
+ within that State; that Pennsylvania, from the mere apprehension of
+ commotions among a part of her citizens, has thought proper to have
+ recourse to the same measure. Suppose the State of New York had
+ been inclined to re-establish her lost jurisdiction over the
+ inhabitants of Vermont, could she have hoped for success in such an
+ enterprise from the efforts of the militia alone? Would she not
+ have been compelled to raise and to maintain a more regular force
+ for the execution of her design? If it must then be admitted that
+ the necessity of recurring to a force different from the militia, in
+ cases of this extraordinary nature, is applicable to the State
+ governments themselves, why should the possibility, that the
+ national government might be under a like necessity, in similar
+ extremities, be made an objection to its existence? Is it not
+ surprising that men who declare an attachment to the Union in the
+ abstract, should urge as an objection to the proposed Constitution
+ what applies with tenfold weight to the plan for which they contend;
+ and what, as far as it has any foundation in truth, is an
+ inevitable consequence of civil society upon an enlarged scale? Who
+ would not prefer that possibility to the unceasing agitations and
+ frequent revolutions which are the continual scourges of petty
+ republics?
+Let us pursue this examination in another light. Suppose, in
+ lieu of one general system, two, or three, or even four
+ Confederacies were to be formed, would not the same difficulty
+ oppose itself to the operations of either of these Confederacies?
+ Would not each of them be exposed to the same casualties; and when
+ these happened, be obliged to have recourse to the same expedients
+ for upholding its authority which are objected to in a government
+ for all the States? Would the militia, in this supposition, be more
+ ready or more able to support the federal authority than in the case
+ of a general union? All candid and intelligent men must, upon due
+ consideration, acknowledge that the principle of the objection is
+ equally applicable to either of the two cases; and that whether we
+ have one government for all the States, or different governments for
+ different parcels of them, or even if there should be an entire
+ separation of the States, there might sometimes be a necessity to
+ make use of a force constituted differently from the militia, to
+ preserve the peace of the community and to maintain the just
+ authority of the laws against those violent invasions of them which
+ amount to insurrections and rebellions.
+Independent of all other reasonings upon the subject, it is a
+ full answer to those who require a more peremptory provision against
+ military establishments in time of peace, to say that the whole
+ power of the proposed government is to be in the hands of the
+ representatives of the people. This is the essential, and, after
+ all, only efficacious security for the rights and privileges of the
+ people, which is attainable in civil society. [1]
+If the representatives of the people betray their constituents,
+ there is then no resource left but in the exertion of that original
+ right of self-defense which is paramount to all positive forms of
+ government, and which against the usurpations of the national
+ rulers, may be exerted with infinitely better prospect of success
+ than against those of the rulers of an individual state. In a
+ single state, if the persons intrusted with supreme power become
+ usurpers, the different parcels, subdivisions, or districts of which
+ it consists, having no distinct government in each, can take no
+ regular measures for defense. The citizens must rush tumultuously
+ to arms, without concert, without system, without resource; except
+ in their courage and despair. The usurpers, clothed with the forms
+ of legal authority, can too often crush the opposition in embryo.
+ The smaller the extent of the territory, the more difficult will it
+ be for the people to form a regular or systematic plan of
+ opposition, and the more easy will it be to defeat their early
+ efforts. Intelligence can be more speedily obtained of their
+ preparations and movements, and the military force in the possession
+ of the usurpers can be more rapidly directed against the part where
+ the opposition has begun. In this situation there must be a
+ peculiar coincidence of circumstances to insure success to the
+ popular resistance.
+The obstacles to usurpation and the facilities of resistance
+ increase with the increased extent of the state, provided the
+ citizens understand their rights and are disposed to defend them.
+ The natural strength of the people in a large community, in
+ proportion to the artificial strength of the government, is greater
+ than in a small, and of course more competent to a struggle with the
+ attempts of the government to establish a tyranny. But in a
+ confederacy the people, without exaggeration, may be said to be
+ entirely the masters of their own fate. Power being almost always
+ the rival of power, the general government will at all times stand
+ ready to check the usurpations of the state governments, and these
+ will have the same disposition towards the general government. The
+ people, by throwing themselves into either scale, will infallibly
+ make it preponderate. If their rights are invaded by either, they
+ can make use of the other as the instrument of redress. How wise
+ will it be in them by cherishing the union to preserve to themselves
+ an advantage which can never be too highly prized!
+It may safely be received as an axiom in our political system,
+ that the State governments will, in all possible contingencies,
+ afford complete security against invasions of the public liberty by
+ the national authority. Projects of usurpation cannot be masked
+ under pretenses so likely to escape the penetration of select bodies
+ of men, as of the people at large. The legislatures will have
+ better means of information. They can discover the danger at a
+ distance; and possessing all the organs of civil power, and the
+ confidence of the people, they can at once adopt a regular plan of
+ opposition, in which they can combine all the resources of the
+ community. They can readily communicate with each other in the
+ different States, and unite their common forces for the protection
+ of their common liberty.
+The great extent of the country is a further security. We have
+ already experienced its utility against the attacks of a foreign
+ power. And it would have precisely the same effect against the
+ enterprises of ambitious rulers in the national councils. If the
+ federal army should be able to quell the resistance of one State,
+ the distant States would have it in their power to make head with
+ fresh forces. The advantages obtained in one place must be
+ abandoned to subdue the opposition in others; and the moment the
+ part which had been reduced to submission was left to itself, its
+ efforts would be renewed, and its resistance revive.
+We should recollect that the extent of the military force must,
+ at all events, be regulated by the resources of the country. For a
+ long time to come, it will not be possible to maintain a large army;
+ and as the means of doing this increase, the population and natural
+ strength of the community will proportionably increase. When will
+ the time arrive that the federal government can raise and maintain
+ an army capable of erecting a despotism over the great body of the
+ people of an immense empire, who are in a situation, through the
+ medium of their State governments, to take measures for their own
+ defense, with all the celerity, regularity, and system of
+ independent nations? The apprehension may be considered as a
+ disease, for which there can be found no cure in the resources of
+ argument and reasoning.
+PUBLIUS.
+FNA1-@1 Its full efficacy will be examined hereafter.
+
+
+FEDERALIST No. 29
+
+Concerning the Militia
+From the Daily Advertiser.
+Thursday, January 10, 1788
+
+HAMILTON
+
+To the People of the State of New York:
+THE power of regulating the militia, and of commanding its
+ services in times of insurrection and invasion are natural incidents
+ to the duties of superintending the common defense, and of watching
+ over the internal peace of the Confederacy.
+It requires no skill in the science of war to discern that
+ uniformity in the organization and discipline of the militia would
+ be attended with the most beneficial effects, whenever they were
+ called into service for the public defense. It would enable them to
+ discharge the duties of the camp and of the field with mutual
+ intelligence and concert an advantage of peculiar moment in the
+ operations of an army; and it would fit them much sooner to acquire
+ the degree of proficiency in military functions which would be
+ essential to their usefulness. This desirable uniformity can only
+ be accomplished by confiding the regulation of the militia to the
+ direction of the national authority. It is, therefore, with the
+ most evident propriety, that the plan of the convention proposes to
+ empower the Union ``to provide for organizing, arming, and
+ disciplining the militia, and for governing such part of them as may
+ be employed in the service of the United States, RESERVING TO THE
+ STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE
+ AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE
+ PRESCRIBED BY CONGRESS.''
+Of the different grounds which have been taken in opposition to
+ the plan of the convention, there is none that was so little to have
+ been expected, or is so untenable in itself, as the one from which
+ this particular provision has been attacked. If a well-regulated
+ militia be the most natural defense of a free country, it ought
+ certainly to be under the regulation and at the disposal of that
+ body which is constituted the guardian of the national security. If
+ standing armies are dangerous to liberty, an efficacious power over
+ the militia, in the body to whose care the protection of the State
+ is committed, ought, as far as possible, to take away the inducement
+ and the pretext to such unfriendly institutions. If the federal
+ government can command the aid of the militia in those emergencies
+ which call for the military arm in support of the civil magistrate,
+ it can the better dispense with the employment of a different kind
+ of force. If it cannot avail itself of the former, it will be
+ obliged to recur to the latter. To render an army unnecessary, will
+ be a more certain method of preventing its existence than a thousand
+ prohibitions upon paper.
+In order to cast an odium upon the power of calling forth the
+ militia to execute the laws of the Union, it has been remarked that
+ there is nowhere any provision in the proposed Constitution for
+ calling out the POSSE COMITATUS, to assist the magistrate in the
+ execution of his duty, whence it has been inferred, that military
+ force was intended to be his only auxiliary. There is a striking
+ incoherence in the objections which have appeared, and sometimes
+ even from the same quarter, not much calculated to inspire a very
+ favorable opinion of the sincerity or fair dealing of their authors.
+ The same persons who tell us in one breath, that the powers of the
+ federal government will be despotic and unlimited, inform us in the
+ next, that it has not authority sufficient even to call out the
+ POSSE COMITATUS. The latter, fortunately, is as much short of the
+ truth as the former exceeds it. It would be as absurd to doubt,
+ that a right to pass all laws NECESSARY AND PROPER to execute its
+ declared powers, would include that of requiring the assistance of
+ the citizens to the officers who may be intrusted with the execution
+ of those laws, as it would be to believe, that a right to enact laws
+ necessary and proper for the imposition and collection of taxes
+ would involve that of varying the rules of descent and of the
+ alienation of landed property, or of abolishing the trial by jury in
+ cases relating to it. It being therefore evident that the
+ supposition of a want of power to require the aid of the POSSE
+ COMITATUS is entirely destitute of color, it will follow, that the
+ conclusion which has been drawn from it, in its application to the
+ authority of the federal government over the militia, is as uncandid
+ as it is illogical. What reason could there be to infer, that force
+ was intended to be the sole instrument of authority, merely because
+ there is a power to make use of it when necessary? What shall we
+ think of the motives which could induce men of sense to reason in
+ this manner? How shall we prevent a conflict between charity and
+ judgment?
+By a curious refinement upon the spirit of republican jealousy,
+ we are even taught to apprehend danger from the militia itself, in
+ the hands of the federal government. It is observed that select
+ corps may be formed, composed of the young and ardent, who may be
+ rendered subservient to the views of arbitrary power. What plan for
+ the regulation of the militia may be pursued by the national
+ government, is impossible to be foreseen. But so far from viewing
+ the matter in the same light with those who object to select corps
+ as dangerous, were the Constitution ratified, and were I to deliver
+ my sentiments to a member of the federal legislature from this State
+ on the subject of a militia establishment, I should hold to him, in
+ substance, the following discourse:
+``The project of disciplining all the militia of the United
+ States is as futile as it would be injurious, if it were capable of
+ being carried into execution. A tolerable expertness in military
+ movements is a business that requires time and practice. It is not
+ a day, or even a week, that will suffice for the attainment of it.
+ To oblige the great body of the yeomanry, and of the other classes
+ of the citizens, to be under arms for the purpose of going through
+ military exercises and evolutions, as often as might be necessary to
+ acquire the degree of perfection which would entitle them to the
+ character of a well-regulated militia, would be a real grievance to
+ the people, and a serious public inconvenience and loss. It would
+ form an annual deduction from the productive labor of the country,
+ to an amount which, calculating upon the present numbers of the
+ people, would not fall far short of the whole expense of the civil
+ establishments of all the States. To attempt a thing which would
+ abridge the mass of labor and industry to so considerable an extent,
+ would be unwise: and the experiment, if made, could not succeed,
+ because it would not long be endured. Little more can reasonably be
+ aimed at, with respect to the people at large, than to have them
+ properly armed and equipped; and in order to see that this be not
+ neglected, it will be necessary to assemble them once or twice in
+ the course of a year.
+``But though the scheme of disciplining the whole nation must be
+ abandoned as mischievous or impracticable; yet it is a matter of
+ the utmost importance that a well-digested plan should, as soon as
+ possible, be adopted for the proper establishment of the militia.
+ The attention of the government ought particularly to be directed
+ to the formation of a select corps of moderate extent, upon such
+ principles as will really fit them for service in case of need. By
+ thus circumscribing the plan, it will be possible to have an
+ excellent body of well-trained militia, ready to take the field
+ whenever the defense of the State shall require it. This will not
+ only lessen the call for military establishments, but if
+ circumstances should at any time oblige the government to form an
+ army of any magnitude that army can never be formidable to the
+ liberties of the people while there is a large body of citizens,
+ little, if at all, inferior to them in discipline and the use of
+ arms, who stand ready to defend their own rights and those of their
+ fellow-citizens. This appears to me the only substitute that can be
+ devised for a standing army, and the best possible security against
+ it, if it should exist.''
+Thus differently from the adversaries of the proposed
+ Constitution should I reason on the same subject, deducing arguments
+ of safety from the very sources which they represent as fraught with
+ danger and perdition. But how the national legislature may reason
+ on the point, is a thing which neither they nor I can foresee.
+There is something so far-fetched and so extravagant in the idea
+ of danger to liberty from the militia, that one is at a loss whether
+ to treat it with gravity or with raillery; whether to consider it
+ as a mere trial of skill, like the paradoxes of rhetoricians; as a
+ disingenuous artifice to instil prejudices at any price; or as the
+ serious offspring of political fanaticism. Where in the name of
+ common-sense, are our fears to end if we may not trust our sons, our
+ brothers, our neighbors, our fellow-citizens? What shadow of danger
+ can there be from men who are daily mingling with the rest of their
+ countrymen and who participate with them in the same feelings,
+ sentiments, habits and interests? What reasonable cause of
+ apprehension can be inferred from a power in the Union to prescribe
+ regulations for the militia, and to command its services when
+ necessary, while the particular States are to have the SOLE AND
+ EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible
+ seriously to indulge a jealousy of the militia upon any conceivable
+ establishment under the federal government, the circumstance of the
+ officers being in the appointment of the States ought at once to
+ extinguish it. There can be no doubt that this circumstance will
+ always secure to them a preponderating influence over the militia.
+In reading many of the publications against the Constitution, a
+ man is apt to imagine that he is perusing some ill-written tale or
+ romance, which instead of natural and agreeable images, exhibits to
+ the mind nothing but frightful and distorted shapes ``Gorgons, hydras,
+ and chimeras dire''; discoloring and disfiguring whatever it represents,
+ and transforming everything it touches into a monster.
+A sample of this is to be observed in the exaggerated and
+ improbable suggestions which have taken place respecting the power
+ of calling for the services of the militia. That of New Hampshire
+ is to be marched to Georgia, of Georgia to New Hampshire, of New
+ York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts
+ due to the French and Dutch are to be paid in militiamen instead of
+ louis d'ors and ducats. At one moment there is to be a large army
+ to lay prostrate the liberties of the people; at another moment the
+ militia of Virginia are to be dragged from their homes five or six
+ hundred miles, to tame the republican contumacy of Massachusetts;
+ and that of Massachusetts is to be transported an equal distance to
+ subdue the refractory haughtiness of the aristocratic Virginians.
+ Do the persons who rave at this rate imagine that their art or
+ their eloquence can impose any conceits or absurdities upon the
+ people of America for infallible truths?
+If there should be an army to be made use of as the engine of
+ despotism, what need of the militia? If there should be no army,
+ whither would the militia, irritated by being called upon to
+ undertake a distant and hopeless expedition, for the purpose of
+ riveting the chains of slavery upon a part of their countrymen,
+ direct their course, but to the seat of the tyrants, who had
+ meditated so foolish as well as so wicked a project, to crush them
+ in their imagined intrenchments of power, and to make them an
+ example of the just vengeance of an abused and incensed people? Is
+ this the way in which usurpers stride to dominion over a numerous
+ and enlightened nation? Do they begin by exciting the detestation
+ of the very instruments of their intended usurpations? Do they
+ usually commence their career by wanton and disgustful acts of
+ power, calculated to answer no end, but to draw upon themselves
+ universal hatred and execration? Are suppositions of this sort the
+ sober admonitions of discerning patriots to a discerning people? Or
+ are they the inflammatory ravings of incendiaries or distempered
+ enthusiasts? If we were even to suppose the national rulers
+ actuated by the most ungovernable ambition, it is impossible to
+ believe that they would employ such preposterous means to accomplish
+ their designs.
+In times of insurrection, or invasion, it would be natural and
+ proper that the militia of a neighboring State should be marched
+ into another, to resist a common enemy, or to guard the republic
+ against the violence of faction or sedition. This was frequently
+ the case, in respect to the first object, in the course of the late
+ war; and this mutual succor is, indeed, a principal end of our
+ political association. If the power of affording it be placed under
+ the direction of the Union, there will be no danger of a supine and
+ listless inattention to the dangers of a neighbor, till its near
+ approach had superadded the incitements of selfpreservation to the
+ too feeble impulses of duty and sympathy.
+PUBLIUS.
+
+
+FEDERALIST No. 30
+
+Concerning the General Power of Taxation
+From the New York Packet.
+Friday, December 28, 1787.
+
+HAMILTON
+
+To the People of the State of New York:
+IT HAS been already observed that the federal government ought
+ to possess the power of providing for the support of the national
+ forces; in which proposition was intended to be included the
+ expense of raising troops, of building and equipping fleets, and all
+ other expenses in any wise connected with military arrangements and
+ operations. But these are not the only objects to which the
+ jurisdiction of the Union, in respect to revenue, must necessarily
+ be empowered to extend. It must embrace a provision for the support
+ of the national civil list; for the payment of the national debts
+ contracted, or that may be contracted; and, in general, for all
+ those matters which will call for disbursements out of the national
+ treasury. The conclusion is, that there must be interwoven, in the
+ frame of the government, a general power of taxation, in one shape
+ or another.
+Money is, with propriety, considered as the vital principle of
+ the body politic; as that which sustains its life and motion, and
+ enables it to perform its most essential functions. A complete
+ power, therefore, to procure a regular and adequate supply of it, as
+ far as the resources of the community will permit, may be regarded
+ as an indispensable ingredient in every constitution. From a
+ deficiency in this particular, one of two evils must ensue; either
+ the people must be subjected to continual plunder, as a substitute
+ for a more eligible mode of supplying the public wants, or the
+ government must sink into a fatal atrophy, and, in a short course of
+ time, perish.
+In the Ottoman or Turkish empire, the sovereign, though in other
+ respects absolute master of the lives and fortunes of his subjects,
+ has no right to impose a new tax. The consequence is that he
+ permits the bashaws or governors of provinces to pillage the people
+ without mercy; and, in turn, squeezes out of them the sums of which
+ he stands in need, to satisfy his own exigencies and those of the
+ state. In America, from a like cause, the government of the Union
+ has gradually dwindled into a state of decay, approaching nearly to
+ annihilation. Who can doubt, that the happiness of the people in
+ both countries would be promoted by competent authorities in the
+ proper hands, to provide the revenues which the necessities of the
+ public might require?
+The present Confederation, feeble as it is intended to repose in
+ the United States, an unlimited power of providing for the pecuniary
+ wants of the Union. But proceeding upon an erroneous principle, it
+ has been done in such a manner as entirely to have frustrated the
+ intention. Congress, by the articles which compose that compact (as
+ has already been stated), are authorized to ascertain and call for
+ any sums of money necessary, in their judgment, to the service of
+ the United States; and their requisitions, if conformable to the
+ rule of apportionment, are in every constitutional sense obligatory
+ upon the States. These have no right to question the propriety of
+ the demand; no discretion beyond that of devising the ways and
+ means of furnishing the sums demanded. But though this be strictly
+ and truly the case; though the assumption of such a right would be
+ an infringement of the articles of Union; though it may seldom or
+ never have been avowedly claimed, yet in practice it has been
+ constantly exercised, and would continue to be so, as long as the
+ revenues of the Confederacy should remain dependent on the
+ intermediate agency of its members. What the consequences of this
+ system have been, is within the knowledge of every man the least
+ conversant in our public affairs, and has been amply unfolded in
+ different parts of these inquiries. It is this which has chiefly
+ contributed to reduce us to a situation, which affords ample cause
+ both of mortification to ourselves, and of triumph to our enemies.
+What remedy can there be for this situation, but in a change of
+ the system which has produced it in a change of the fallacious and
+ delusive system of quotas and requisitions? What substitute can
+ there be imagined for this ignis fatuus in finance, but that of
+ permitting the national government to raise its own revenues by the
+ ordinary methods of taxation authorized in every well-ordered
+ constitution of civil government? Ingenious men may declaim with
+ plausibility on any subject; but no human ingenuity can point out
+ any other expedient to rescue us from the inconveniences and
+ embarrassments naturally resulting from defective supplies of the
+ public treasury.
+The more intelligent adversaries of the new Constitution admit
+ the force of this reasoning; but they qualify their admission by a
+ distinction between what they call INTERNAL and EXTERNAL taxation.
+ The former they would reserve to the State governments; the
+ latter, which they explain into commercial imposts, or rather duties
+ on imported articles, they declare themselves willing to concede to
+ the federal head. This distinction, however, would violate the
+ maxim of good sense and sound policy, which dictates that every
+ POWER ought to be in proportion to its OBJECT; and would still
+ leave the general government in a kind of tutelage to the State
+ governments, inconsistent with every idea of vigor or efficiency.
+ Who can pretend that commercial imposts are, or would be, alone
+ equal to the present and future exigencies of the Union? Taking
+ into the account the existing debt, foreign and domestic, upon any
+ plan of extinguishment which a man moderately impressed with the
+ importance of public justice and public credit could approve, in
+ addition to the establishments which all parties will acknowledge to
+ be necessary, we could not reasonably flatter ourselves, that this
+ resource alone, upon the most improved scale, would even suffice for
+ its present necessities. Its future necessities admit not of
+ calculation or limitation; and upon the principle, more than once
+ adverted to, the power of making provision for them as they arise
+ ought to be equally unconfined. I believe it may be regarded as a
+ position warranted by the history of mankind, that, IN THE USUAL
+ PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF
+ ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.
+To say that deficiencies may be provided for by requisitions
+ upon the States, is on the one hand to acknowledge that this system
+ cannot be depended upon, and on the other hand to depend upon it for
+ every thing beyond a certain limit. Those who have carefully
+ attended to its vices and deformities as they have been exhibited by
+ experience or delineated in the course of these papers, must feel
+ invincible repugnancy to trusting the national interests in any
+ degree to its operation. Its inevitable tendency, whenever it is
+ brought into activity, must be to enfeeble the Union, and sow the
+ seeds of discord and contention between the federal head and its
+ members, and between the members themselves. Can it be expected
+ that the deficiencies would be better supplied in this mode than the
+ total wants of the Union have heretofore been supplied in the same
+ mode? It ought to be recollected that if less will be required from
+ the States, they will have proportionably less means to answer the
+ demand. If the opinions of those who contend for the distinction
+ which has been mentioned were to be received as evidence of truth,
+ one would be led to conclude that there was some known point in the
+ economy of national affairs at which it would be safe to stop and to
+ say: Thus far the ends of public happiness will be promoted by
+ supplying the wants of government, and all beyond this is unworthy
+ of our care or anxiety. How is it possible that a government half
+ supplied and always necessitous, can fulfill the purposes of its
+ institution, can provide for the security, advance the prosperity,
+ or support the reputation of the commonwealth? How can it ever
+ possess either energy or stability, dignity or credit, confidence at
+ home or respectability abroad? How can its administration be any
+ thing else than a succession of expedients temporizing, impotent,
+ disgraceful? How will it be able to avoid a frequent sacrifice of
+ its engagements to immediate necessity? How can it undertake or
+ execute any liberal or enlarged plans of public good?
+Let us attend to what would be the effects of this situation in
+ the very first war in which we should happen to be engaged. We will
+ presume, for argument's sake, that the revenue arising from the
+ impost duties answers the purposes of a provision for the public
+ debt and of a peace establishment for the Union. Thus
+ circumstanced, a war breaks out. What would be the probable conduct
+ of the government in such an emergency? Taught by experience that
+ proper dependence could not be placed on the success of
+ requisitions, unable by its own authority to lay hold of fresh
+ resources, and urged by considerations of national danger, would it
+ not be driven to the expedient of diverting the funds already
+ appropriated from their proper objects to the defense of the State?
+ It is not easy to see how a step of this kind could be avoided;
+ and if it should be taken, it is evident that it would prove the
+ destruction of public credit at the very moment that it was becoming
+ essential to the public safety. To imagine that at such a crisis
+ credit might be dispensed with, would be the extreme of infatuation.
+ In the modern system of war, nations the most wealthy are obliged
+ to have recourse to large loans. A country so little opulent as
+ ours must feel this necessity in a much stronger degree. But who
+ would lend to a government that prefaced its overtures for borrowing
+ by an act which demonstrated that no reliance could be placed on the
+ steadiness of its measures for paying? The loans it might be able
+ to procure would be as limited in their extent as burdensome in
+ their conditions. They would be made upon the same principles that
+ usurers commonly lend to bankrupt and fraudulent debtors, with a
+ sparing hand and at enormous premiums.
+It may perhaps be imagined that, from the scantiness of the
+ resources of the country, the necessity of diverting the established
+ funds in the case supposed would exist, though the national
+ government should possess an unrestrained power of taxation. But
+ two considerations will serve to quiet all apprehension on this
+ head: one is, that we are sure the resources of the community, in
+ their full extent, will be brought into activity for the benefit of
+ the Union; the other is, that whatever deficiences there may be,
+ can without difficulty be supplied by loans.
+The power of creating new funds upon new objects of taxation, by
+ its own authority, would enable the national government to borrow as
+ far as its necessities might require. Foreigners, as well as the
+ citizens of America, could then reasonably repose confidence in its
+ engagements; but to depend upon a government that must itself
+ depend upon thirteen other governments for the means of fulfilling
+ its contracts, when once its situation is clearly understood, would
+ require a degree of credulity not often to be met with in the
+ pecuniary transactions of mankind, and little reconcilable with the
+ usual sharp-sightedness of avarice.
+Reflections of this kind may have trifling weight with men who
+ hope to see realized in America the halcyon scenes of the poetic or
+ fabulous age; but to those who believe we are likely to experience
+ a common portion of the vicissitudes and calamities which have
+ fallen to the lot of other nations, they must appear entitled to
+ serious attention. Such men must behold the actual situation of
+ their country with painful solicitude, and deprecate the evils which
+ ambition or revenge might, with too much facility, inflict upon it.
+PUBLIUS.
+
+
+FEDERALIST No. 31
+
+The Same Subject Continued
+(Concerning the General Power of Taxation)
+From the New York Packet.
+Tuesday, January 1, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+IN DISQUISITIONS of every kind, there are certain primary
+ truths, or first principles, upon which all subsequent reasonings
+ must depend. These contain an internal evidence which, antecedent
+ to all reflection or combination, commands the assent of the mind.
+ Where it produces not this effect, it must proceed either from some
+ defect or disorder in the organs of perception, or from the
+ influence of some strong interest, or passion, or prejudice. Of
+ this nature are the maxims in geometry, that ``the whole is greater
+ than its part; things equal to the same are equal to one another;
+ two straight lines cannot enclose a space; and all right angles
+ are equal to each other.'' Of the same nature are these other
+ maxims in ethics and politics, that there cannot be an effect
+ without a cause; that the means ought to be proportioned to the
+ end; that every power ought to be commensurate with its object;
+ that there ought to be no limitation of a power destined to effect
+ a purpose which is itself incapable of limitation. And there are
+ other truths in the two latter sciences which, if they cannot
+ pretend to rank in the class of axioms, are yet such direct
+ inferences from them, and so obvious in themselves, and so agreeable
+ to the natural and unsophisticated dictates of common-sense, that
+ they challenge the assent of a sound and unbiased mind, with a
+ degree of force and conviction almost equally irresistible.
+The objects of geometrical inquiry are so entirely abstracted
+ from those pursuits which stir up and put in motion the unruly
+ passions of the human heart, that mankind, without difficulty, adopt
+ not only the more simple theorems of the science, but even those
+ abstruse paradoxes which, however they may appear susceptible of
+ demonstration, are at variance with the natural conceptions which
+ the mind, without the aid of philosophy, would be led to entertain
+ upon the subject. The INFINITE DIVISIBILITY of matter, or, in other
+ words, the INFINITE divisibility of a FINITE thing, extending even
+ to the minutest atom, is a point agreed among geometricians, though
+ not less incomprehensible to common-sense than any of those
+ mysteries in religion, against which the batteries of infidelity
+ have been so industriously leveled.
+But in the sciences of morals and politics, men are found far
+ less tractable. To a certain degree, it is right and useful that
+ this should be the case. Caution and investigation are a necessary
+ armor against error and imposition. But this untractableness may be
+ carried too far, and may degenerate into obstinacy, perverseness, or
+ disingenuity. Though it cannot be pretended that the principles of
+ moral and political knowledge have, in general, the same degree of
+ certainty with those of the mathematics, yet they have much better
+ claims in this respect than, to judge from the conduct of men in
+ particular situations, we should be disposed to allow them. The
+ obscurity is much oftener in the passions and prejudices of the
+ reasoner than in the subject. Men, upon too many occasions, do not
+ give their own understandings fair play; but, yielding to some
+ untoward bias, they entangle themselves in words and confound
+ themselves in subtleties.
+How else could it happen (if we admit the objectors to be
+ sincere in their opposition), that positions so clear as those which
+ manifest the necessity of a general power of taxation in the
+ government of the Union, should have to encounter any adversaries
+ among men of discernment? Though these positions have been
+ elsewhere fully stated, they will perhaps not be improperly
+ recapitulated in this place, as introductory to an examination of
+ what may have been offered by way of objection to them. They are in
+ substance as follows:
+A government ought to contain in itself every power requisite to
+ the full accomplishment of the objects committed to its care, and to
+ the complete execution of the trusts for which it is responsible,
+ free from every other control but a regard to the public good and to
+ the sense of the people.
+As the duties of superintending the national defense and of
+ securing the public peace against foreign or domestic violence
+ involve a provision for casualties and dangers to which no possible
+ limits can be assigned, the power of making that provision ought to
+ know no other bounds than the exigencies of the nation and the
+ resources of the community.
+As revenue is the essential engine by which the means of
+ answering the national exigencies must be procured, the power of
+ procuring that article in its full extent must necessarily be
+ comprehended in that of providing for those exigencies.
+As theory and practice conspire to prove that the power of
+ procuring revenue is unavailing when exercised over the States in
+ their collective capacities, the federal government must of
+ necessity be invested with an unqualified power of taxation in the
+ ordinary modes.
+Did not experience evince the contrary, it would be natural to
+ conclude that the propriety of a general power of taxation in the
+ national government might safely be permitted to rest on the
+ evidence of these propositions, unassisted by any additional
+ arguments or illustrations. But we find, in fact, that the
+ antagonists of the proposed Constitution, so far from acquiescing in
+ their justness or truth, seem to make their principal and most
+ zealous effort against this part of the plan. It may therefore be
+ satisfactory to analyze the arguments with which they combat it.
+Those of them which have been most labored with that view, seem
+ in substance to amount to this: ``It is not true, because the
+ exigencies of the Union may not be susceptible of limitation, that
+ its power of laying taxes ought to be unconfined. Revenue is as
+ requisite to the purposes of the local administrations as to those
+ of the Union; and the former are at least of equal importance with
+ the latter to the happiness of the people. It is, therefore, as
+ necessary that the State governments should be able to command the
+ means of supplying their wants, as that the national government
+ should possess the like faculty in respect to the wants of the Union.
+ But an indefinite power of taxation in the LATTER might, and
+ probably would in time, deprive the FORMER of the means of providing
+ for their own necessities; and would subject them entirely to the
+ mercy of the national legislature. As the laws of the Union are to
+ become the supreme law of the land, as it is to have power to pass
+ all laws that may be NECESSARY for carrying into execution the
+ authorities with which it is proposed to vest it, the national
+ government might at any time abolish the taxes imposed for State
+ objects upon the pretense of an interference with its own. It might
+ allege a necessity of doing this in order to give efficacy to the
+ national revenues. And thus all the resources of taxation might by
+ degrees become the subjects of federal monopoly, to the entire
+ exclusion and destruction of the State governments.''
+This mode of reasoning appears sometimes to turn upon the
+ supposition of usurpation in the national government; at other
+ times it seems to be designed only as a deduction from the
+ constitutional operation of its intended powers. It is only in the
+ latter light that it can be admitted to have any pretensions to
+ fairness. The moment we launch into conjectures about the
+ usurpations of the federal government, we get into an unfathomable
+ abyss, and fairly put ourselves out of the reach of all reasoning.
+ Imagination may range at pleasure till it gets bewildered amidst
+ the labyrinths of an enchanted castle, and knows not on which side
+ to turn to extricate itself from the perplexities into which it has
+ so rashly adventured. Whatever may be the limits or modifications
+ of the powers of the Union, it is easy to imagine an endless train
+ of possible dangers; and by indulging an excess of jealousy and
+ timidity, we may bring ourselves to a state of absolute scepticism
+ and irresolution. I repeat here what I have observed in substance
+ in another place, that all observations founded upon the danger of
+ usurpation ought to be referred to the composition and structure of
+ the government, not to the nature or extent of its powers. The
+ State governments, by their original constitutions, are invested
+ with complete sovereignty. In what does our security consist
+ against usurpation from that quarter? Doubtless in the manner of
+ their formation, and in a due dependence of those who are to
+ administer them upon the people. If the proposed construction of
+ the federal government be found, upon an impartial examination of
+ it, to be such as to afford, to a proper extent, the same species of
+ security, all apprehensions on the score of usurpation ought to be
+ discarded.
+It should not be forgotten that a disposition in the State
+ governments to encroach upon the rights of the Union is quite as
+ probable as a disposition in the Union to encroach upon the rights
+ of the State governments. What side would be likely to prevail in
+ such a conflict, must depend on the means which the contending
+ parties could employ toward insuring success. As in republics
+ strength is always on the side of the people, and as there are
+ weighty reasons to induce a belief that the State governments will
+ commonly possess most influence over them, the natural conclusion is
+ that such contests will be most apt to end to the disadvantage of
+ the Union; and that there is greater probability of encroachments
+ by the members upon the federal head, than by the federal head upon
+ the members. But it is evident that all conjectures of this kind
+ must be extremely vague and fallible: and that it is by far the
+ safest course to lay them altogether aside, and to confine our
+ attention wholly to the nature and extent of the powers as they are
+ delineated in the Constitution. Every thing beyond this must be
+ left to the prudence and firmness of the people; who, as they will
+ hold the scales in their own hands, it is to be hoped, will always
+ take care to preserve the constitutional equilibrium between the
+ general and the State governments. Upon this ground, which is
+ evidently the true one, it will not be difficult to obviate the
+ objections which have been made to an indefinite power of taxation
+ in the United States.
+PUBLIUS.
+
+
+FEDERALIST No. 32
+
+The Same Subject Continued
+(Concerning the General Power of Taxation)
+From the Daily Advertiser.
+Thursday, January 3, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+ALTHOUGH I am of opinion that there would be no real danger of
+ the consequences which seem to be apprehended to the State
+ governments from a power in the Union to control them in the levies
+ of money, because I am persuaded that the sense of the people, the
+ extreme hazard of provoking the resentments of the State
+ governments, and a conviction of the utility and necessity of local
+ administrations for local purposes, would be a complete barrier
+ against the oppressive use of such a power; yet I am willing here
+ to allow, in its full extent, the justness of the reasoning which
+ requires that the individual States should possess an independent
+ and uncontrollable authority to raise their own revenues for the
+ supply of their own wants. And making this concession, I affirm
+ that (with the sole exception of duties on imports and exports) they
+ would, under the plan of the convention, retain that authority in
+ the most absolute and unqualified sense; and that an attempt on the
+ part of the national government to abridge them in the exercise of
+ it, would be a violent assumption of power, unwarranted by any
+ article or clause of its Constitution.
+An entire consolidation of the States into one complete national
+ sovereignty would imply an entire subordination of the parts; and
+ whatever powers might remain in them, would be altogether dependent
+ on the general will. But as the plan of the convention aims only at
+ a partial union or consolidation, the State governments would
+ clearly retain all the rights of sovereignty which they before had,
+ and which were not, by that act, EXCLUSIVELY delegated to the United
+ States. This exclusive delegation, or rather this alienation, of
+ State sovereignty, would only exist in three cases: where the
+ Constitution in express terms granted an exclusive authority to the
+ Union; where it granted in one instance an authority to the Union,
+ and in another prohibited the States from exercising the like
+ authority; and where it granted an authority to the Union, to which
+ a similar authority in the States would be absolutely and totally
+ CONTRADICTORY and REPUGNANT. I use these terms to distinguish this
+ last case from another which might appear to resemble it, but which
+ would, in fact, be essentially different; I mean where the exercise
+ of a concurrent jurisdiction might be productive of occasional
+ interferences in the POLICY of any branch of administration, but
+ would not imply any direct contradiction or repugnancy in point of
+ constitutional authority. These three cases of exclusive
+ jurisdiction in the federal government may be exemplified by the
+ following instances: The last clause but one in the eighth section
+ of the first article provides expressly that Congress shall exercise
+ ``EXCLUSIVE LEGISLATION'' over the district to be appropriated as
+ the seat of government. This answers to the first case. The first
+ clause of the same section empowers Congress ``TO LAY AND COLLECT
+ TAXES, DUTIES, IMPOSTS AND EXCISES''; and the second clause of the
+ tenth section of the same article declares that, ``NO STATE SHALL,
+ without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON
+ IMPORTS OR EXPORTS, except for the purpose of executing its
+ inspection laws.'' Hence would result an exclusive power in the
+ Union to lay duties on imports and exports, with the particular
+ exception mentioned; but this power is abridged by another clause,
+ which declares that no tax or duty shall be laid on articles
+ exported from any State; in consequence of which qualification, it
+ now only extends to the DUTIES ON IMPORTS. This answers to the
+ second case. The third will be found in that clause which declares
+ that Congress shall have power ``to establish an UNIFORM RULE of
+ naturalization throughout the United States.'' This must
+ necessarily be exclusive; because if each State had power to
+ prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
+A case which may perhaps be thought to resemble the latter, but
+ which is in fact widely different, affects the question immediately
+ under consideration. I mean the power of imposing taxes on all
+ articles other than exports and imports. This, I contend, is
+ manifestly a concurrent and coequal authority in the United States
+ and in the individual States. There is plainly no expression in the
+ granting clause which makes that power EXCLUSIVE in the Union.
+ There is no independent clause or sentence which prohibits the
+ States from exercising it. So far is this from being the case, that
+ a plain and conclusive argument to the contrary is to be deduced
+ from the restraint laid upon the States in relation to duties on
+ imports and exports. This restriction implies an admission that, if
+ it were not inserted, the States would possess the power it
+ excludes; and it implies a further admission, that as to all other
+ taxes, the authority of the States remains undiminished. In any
+ other view it would be both unnecessary and dangerous; it would be
+ unnecessary, because if the grant to the Union of the power of
+ laying such duties implied the exclusion of the States, or even
+ their subordination in this particular, there could be no need of
+ such a restriction; it would be dangerous, because the introduction
+ of it leads directly to the conclusion which has been mentioned, and
+ which, if the reasoning of the objectors be just, could not have
+ been intended; I mean that the States, in all cases to which the
+ restriction did not apply, would have a concurrent power of taxation
+ with the Union. The restriction in question amounts to what lawyers
+ call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an
+ AFFIRMANCE of another; a negation of the authority of the States to
+ impose taxes on imports and exports, and an affirmance of their
+ authority to impose them on all other articles. It would be mere
+ sophistry to argue that it was meant to exclude them ABSOLUTELY from
+ the imposition of taxes of the former kind, and to leave them at
+ liberty to lay others SUBJECT TO THE CONTROL of the national
+ legislature. The restraining or prohibitory clause only says, that
+ they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties;
+ and if we are to understand this in the sense last mentioned, the
+ Constitution would then be made to introduce a formal provision for
+ the sake of a very absurd conclusion; which is, that the States,
+ WITH THE CONSENT of the national legislature, might tax imports and
+ exports; and that they might tax every other article, UNLESS
+ CONTROLLED by the same body. If this was the intention, why not
+ leave it, in the first instance, to what is alleged to be the
+ natural operation of the original clause, conferring a general power
+ of taxation upon the Union? It is evident that this could not have
+ been the intention, and that it will not bear a construction of the
+ kind.
+As to a supposition of repugnancy between the power of taxation
+ in the States and in the Union, it cannot be supported in that sense
+ which would be requisite to work an exclusion of the States. It is,
+ indeed, possible that a tax might be laid on a particular article by
+ a State which might render it INEXPEDIENT that thus a further tax
+ should be laid on the same article by the Union; but it would not
+ imply a constitutional inability to impose a further tax. The
+ quantity of the imposition, the expediency or inexpediency of an
+ increase on either side, would be mutually questions of prudence;
+ but there would be involved no direct contradiction of power. The
+ particular policy of the national and of the State systems of
+ finance might now and then not exactly coincide, and might require
+ reciprocal forbearances. It is not, however a mere possibility of
+ inconvenience in the exercise of powers, but an immediate
+ constitutional repugnancy that can by implication alienate and
+ extinguish a pre-existing right of sovereignty.
+The necessity of a concurrent jurisdiction in certain cases
+ results from the division of the sovereign power; and the rule that
+ all authorities, of which the States are not explicitly divested in
+ favor of the Union, remain with them in full vigor, is not a
+ theoretical consequence of that division, but is clearly admitted by
+ the whole tenor of the instrument which contains the articles of the
+ proposed Constitution. We there find that, notwithstanding the
+ affirmative grants of general authorities, there has been the most
+ pointed care in those cases where it was deemed improper that the
+ like authorities should reside in the States, to insert negative
+ clauses prohibiting the exercise of them by the States. The tenth
+ section of the first article consists altogether of such provisions.
+ This circumstance is a clear indication of the sense of the
+ convention, and furnishes a rule of interpretation out of the body
+ of the act, which justifies the position I have advanced and refutes
+ every hypothesis to the contrary.
+PUBLIUS.
+
+
+FEDERALIST No. 33
+
+The Same Subject Continued
+(Concerning the General Power of Taxation)
+From the Daily Advertiser.
+January 3, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE residue of the argument against the provisions of the
+ Constitution in respect to taxation is ingrafted upon the following
+ clause. The last clause of the eighth section of the first article
+ of the plan under consideration authorizes the national legislature
+ ``to make all laws which shall be NECESSARY and PROPER for carrying
+ into execution THE POWERS by that Constitution vested in the
+ government of the United States, or in any department or officer
+ thereof''; and the second clause of the sixth article declares,
+ ``that the Constitution and the laws of the United States made IN
+ PURSUANCE THEREOF, and the treaties made by their authority shall be
+ the SUPREME LAW of the land, any thing in the constitution or laws
+ of any State to the contrary notwithstanding.''
+These two clauses have been the source of much virulent
+ invective and petulant declamation against the proposed Constitution.
+ They have been held up to the people in all the exaggerated colors
+ of misrepresentation as the pernicious engines by which their local
+ governments were to be destroyed and their liberties exterminated;
+ as the hideous monster whose devouring jaws would spare neither sex
+ nor age, nor high nor low, nor sacred nor profane; and yet, strange
+ as it may appear, after all this clamor, to those who may not have
+ happened to contemplate them in the same light, it may be affirmed
+ with perfect confidence that the constitutional operation of the
+ intended government would be precisely the same, if these clauses
+ were entirely obliterated, as if they were repeated in every article.
+ They are only declaratory of a truth which would have resulted by
+ necessary and unavoidable implication from the very act of
+ constituting a federal government, and vesting it with certain
+ specified powers. This is so clear a proposition, that moderation
+ itself can scarcely listen to the railings which have been so
+ copiously vented against this part of the plan, without emotions
+ that disturb its equanimity.
+What is a power, but the ability or faculty of doing a thing?
+ What is the ability to do a thing, but the power of employing the
+ MEANS necessary to its execution? What is a LEGISLATIVE power, but
+ a power of making LAWS? What are the MEANS to execute a LEGISLATIVE
+ power but LAWS? What is the power of laying and collecting taxes,
+ but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and
+ collect taxes? What are the proper means of executing such a power,
+ but NECESSARY and PROPER laws?
+This simple train of inquiry furnishes us at once with a test by
+ which to judge of the true nature of the clause complained of. It
+ conducts us to this palpable truth, that a power to lay and collect
+ taxes must be a power to pass all laws NECESSARY and PROPER for the
+ execution of that power; and what does the unfortunate and
+ culumniated provision in question do more than declare the same
+ truth, to wit, that the national legislature, to whom the power of
+ laying and collecting taxes had been previously given, might, in the
+ execution of that power, pass all laws NECESSARY and PROPER to carry
+ it into effect? I have applied these observations thus particularly
+ to the power of taxation, because it is the immediate subject under
+ consideration, and because it is the most important of the
+ authorities proposed to be conferred upon the Union. But the same
+ process will lead to the same result, in relation to all other
+ powers declared in the Constitution. And it is EXPRESSLY to execute
+ these powers that the sweeping clause, as it has been affectedly
+ called, authorizes the national legislature to pass all NECESSARY
+ and PROPER laws. If there is any thing exceptionable, it must be
+ sought for in the specific powers upon which this general
+ declaration is predicated. The declaration itself, though it may be
+ chargeable with tautology or redundancy, is at least perfectly
+ harmless.
+But SUSPICION may ask, Why then was it introduced? The answer
+ is, that it could only have been done for greater caution, and to
+ guard against all cavilling refinements in those who might hereafter
+ feel a disposition to curtail and evade the legitimate authorities
+ of the Union. The Convention probably foresaw, what it has been a
+ principal aim of these papers to inculcate, that the danger which
+ most threatens our political welfare is that the State governments
+ will finally sap the foundations of the Union; and might therefore
+ think it necessary, in so cardinal a point, to leave nothing to
+ construction. Whatever may have been the inducement to it, the
+ wisdom of the precaution is evident from the cry which has been
+ raised against it; as that very cry betrays a disposition to
+ question the great and essential truth which it is manifestly the
+ object of that provision to declare.
+But it may be again asked, Who is to judge of the NECESSITY and
+ PROPRIETY of the laws to be passed for executing the powers of the
+ Union? I answer, first, that this question arises as well and as
+ fully upon the simple grant of those powers as upon the declaratory
+ clause; and I answer, in the second place, that the national
+ government, like every other, must judge, in the first instance, of
+ the proper exercise of its powers, and its constituents in the last.
+ If the federal government should overpass the just bounds of its
+ authority and make a tyrannical use of its powers, the people, whose
+ creature it is, must appeal to the standard they have formed, and
+ take such measures to redress the injury done to the Constitution as
+ the exigency may suggest and prudence justify. The propriety of a
+ law, in a constitutional light, must always be determined by the
+ nature of the powers upon which it is founded. Suppose, by some
+ forced constructions of its authority (which, indeed, cannot easily
+ be imagined), the Federal legislature should attempt to vary the law
+ of descent in any State, would it not be evident that, in making
+ such an attempt, it had exceeded its jurisdiction, and infringed
+ upon that of the State? Suppose, again, that upon the pretense of
+ an interference with its revenues, it should undertake to abrogate a
+ landtax imposed by the authority of a State; would it not be
+ equally evident that this was an invasion of that concurrent
+ jurisdiction in respect to this species of tax, which its
+ Constitution plainly supposes to exist in the State governments? If
+ there ever should be a doubt on this head, the credit of it will be
+ entirely due to those reasoners who, in the imprudent zeal of their
+ animosity to the plan of the convention, have labored to envelop it
+ in a cloud calculated to obscure the plainest and simplest truths.
+But it is said that the laws of the Union are to be the SUPREME
+ LAW of the land. But what inference can be drawn from this, or what
+ would they amount to, if they were not to be supreme? It is evident
+ they would amount to nothing. A LAW, by the very meaning of the
+ term, includes supremacy. It is a rule which those to whom it is
+ prescribed are bound to observe. This results from every political
+ association. If individuals enter into a state of society, the laws
+ of that society must be the supreme regulator of their conduct. If
+ a number of political societies enter into a larger political
+ society, the laws which the latter may enact, pursuant to the powers
+ intrusted to it by its constitution, must necessarily be supreme
+ over those societies, and the individuals of whom they are composed.
+ It would otherwise be a mere treaty, dependent on the good faith of
+ the parties, and not a government, which is only another word for
+ POLITICAL POWER AND SUPREMACY. But it will not follow from this
+ doctrine that acts of the large society which are NOT PURSUANT to
+ its constitutional powers, but which are invasions of the residuary
+ authorities of the smaller societies, will become the supreme law of
+ the land. These will be merely acts of usurpation, and will deserve
+ to be treated as such. Hence we perceive that the clause which
+ declares the supremacy of the laws of the Union, like the one we
+ have just before considered, only declares a truth, which flows
+ immediately and necessarily from the institution of a federal
+ government. It will not, I presume, have escaped observation, that
+ it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
+ CONSTITUTION; which I mention merely as an instance of caution in
+ the convention; since that limitation would have been to be
+ understood, though it had not been expressed.
+Though a law, therefore, laying a tax for the use of the United
+ States would be supreme in its nature, and could not legally be
+ opposed or controlled, yet a law for abrogating or preventing the
+ collection of a tax laid by the authority of the State, (unless upon
+ imports and exports), would not be the supreme law of the land, but
+ a usurpation of power not granted by the Constitution. As far as an
+ improper accumulation of taxes on the same object might tend to
+ render the collection difficult or precarious, this would be a
+ mutual inconvenience, not arising from a superiority or defect of
+ power on either side, but from an injudicious exercise of power by
+ one or the other, in a manner equally disadvantageous to both. It
+ is to be hoped and presumed, however, that mutual interest would
+ dictate a concert in this respect which would avoid any material
+ inconvenience. The inference from the whole is, that the individual
+ States would, under the proposed Constitution, retain an independent
+ and uncontrollable authority to raise revenue to any extent of which
+ they may stand in need, by every kind of taxation, except duties on
+ imports and exports. It will be shown in the next paper that this
+ CONCURRENT JURISDICTION in the article of taxation was the only
+ admissible substitute for an entire subordination, in respect to
+ this branch of power, of the State authority to that of the Union.
+PUBLIUS.
+
+
+FEDERALIST No. 34
+
+The Same Subject Continued
+(Concerning the General Power of Taxation)
+From the New York Packet.
+Friday, January 4, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+I FLATTER myself it has been clearly shown in my last number
+ that the particular States, under the proposed Constitution, would
+ have COEQUAL authority with the Union in the article of revenue,
+ except as to duties on imports. As this leaves open to the States
+ far the greatest part of the resources of the community, there can
+ be no color for the assertion that they would not possess means as
+ abundant as could be desired for the supply of their own wants,
+ independent of all external control. That the field is sufficiently
+ wide will more fully appear when we come to advert to the
+ inconsiderable share of the public expenses for which it will fall
+ to the lot of the State governments to provide.
+To argue upon abstract principles that this co-ordinate
+ authority cannot exist, is to set up supposition and theory against
+ fact and reality. However proper such reasonings might be to show
+ that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when
+ they are made use of to prove that it does not exist contrary to the
+ evidence of the fact itself. It is well known that in the Roman
+ republic the legislative authority, in the last resort, resided for
+ ages in two different political bodies not as branches of the same
+ legislature, but as distinct and independent legislatures, in each
+ of which an opposite interest prevailed: in one the patrician; in
+ the other, the plebian. Many arguments might have been adduced to
+ prove the unfitness of two such seemingly contradictory authorities,
+ each having power to ANNUL or REPEAL the acts of the other. But a
+ man would have been regarded as frantic who should have attempted at
+ Rome to disprove their existence. It will be readily understood
+ that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA.
+ The former, in which the people voted by centuries, was so arranged
+ as to give a superiority to the patrician interest; in the latter,
+ in which numbers prevailed, the plebian interest had an entire
+ predominancy. And yet these two legislatures coexisted for ages,
+ and the Roman republic attained to the utmost height of human
+ greatness.
+In the case particularly under consideration, there is no such
+ contradiction as appears in the example cited; there is no power on
+ either side to annul the acts of the other. And in practice there
+ is little reason to apprehend any inconvenience; because, in a
+ short course of time, the wants of the States will naturally reduce
+ themselves within A VERY NARROW COMPASS; and in the interim, the
+ United States will, in all probability, find it convenient to
+ abstain wholly from those objects to which the particular States
+ would be inclined to resort.
+To form a more precise judgment of the true merits of this
+ question, it will be well to advert to the proportion between the
+ objects that will require a federal provision in respect to revenue,
+ and those which will require a State provision. We shall discover
+ that the former are altogether unlimited, and that the latter are
+ circumscribed within very moderate bounds. In pursuing this
+ inquiry, we must bear in mind that we are not to confine our view to
+ the present period, but to look forward to remote futurity.
+ Constitutions of civil government are not to be framed upon a
+ calculation of existing exigencies, but upon a combination of these
+ with the probable exigencies of ages, according to the natural and
+ tried course of human affairs. Nothing, therefore, can be more
+ fallacious than to infer the extent of any power, proper to be
+ lodged in the national government, from an estimate of its immediate
+ necessities. There ought to be a CAPACITY to provide for future
+ contingencies as they may happen; and as these are illimitable in
+ their nature, it is impossible safely to limit that capacity. It is
+ true, perhaps, that a computation might be made with sufficient
+ accuracy to answer the purpose of the quantity of revenue requisite
+ to discharge the subsisting engagements of the Union, and to
+ maintain those establishments which, for some time to come, would
+ suffice in time of peace. But would it be wise, or would it not
+ rather be the extreme of folly, to stop at this point, and to leave
+ the government intrusted with the care of the national defense in a
+ state of absolute incapacity to provide for the protection of the
+ community against future invasions of the public peace, by foreign
+ war or domestic convulsions? If, on the contrary, we ought to
+ exceed this point, where can we stop, short of an indefinite power
+ of providing for emergencies as they may arise? Though it is easy
+ to assert, in general terms, the possibility of forming a rational
+ judgment of a due provision against probable dangers, yet we may
+ safely challenge those who make the assertion to bring forward their
+ data, and may affirm that they would be found as vague and uncertain
+ as any that could be produced to establish the probable duration of
+ the world. Observations confined to the mere prospects of internal
+ attacks can deserve no weight; though even these will admit of no
+ satisfactory calculation: but if we mean to be a commercial people,
+ it must form a part of our policy to be able one day to defend that
+ commerce. The support of a navy and of naval wars would involve
+ contingencies that must baffle all the efforts of political
+ arithmetic.
+Admitting that we ought to try the novel and absurd experiment
+ in politics of tying up the hands of government from offensive war
+ founded upon reasons of state, yet certainly we ought not to disable
+ it from guarding the community against the ambition or enmity of
+ other nations. A cloud has been for some time hanging over the
+ European world. If it should break forth into a storm, who can
+ insure us that in its progress a part of its fury would not be spent
+ upon us? No reasonable man would hastily pronounce that we are
+ entirely out of its reach. Or if the combustible materials that now
+ seem to be collecting should be dissipated without coming to
+ maturity, or if a flame should be kindled without extending to us,
+ what security can we have that our tranquillity will long remain
+ undisturbed from some other cause or from some other quarter? Let
+ us recollect that peace or war will not always be left to our
+ option; that however moderate or unambitious we may be, we cannot
+ count upon the moderation, or hope to extinguish the ambition of
+ others. Who could have imagined at the conclusion of the last war
+ that France and Britain, wearied and exhausted as they both were,
+ would so soon have looked with so hostile an aspect upon each other?
+ To judge from the history of mankind, we shall be compelled to
+ conclude that the fiery and destructive passions of war reign in the
+ human breast with much more powerful sway than the mild and
+ beneficent sentiments of peace; and that to model our political
+ systems upon speculations of lasting tranquillity, is to calculate
+ on the weaker springs of the human character.
+What are the chief sources of expense in every government? What
+ has occasioned that enormous accumulation of debts with which
+ several of the European nations are oppressed? The answers plainly
+ is, wars and rebellions; the support of those institutions which
+ are necessary to guard the body politic against these two most
+ mortal diseases of society. The expenses arising from those
+ institutions which are relative to the mere domestic police of a
+ state, to the support of its legislative, executive, and judicial
+ departments, with their different appendages, and to the
+ encouragement of agriculture and manufactures (which will comprehend
+ almost all the objects of state expenditure), are insignificant in
+ comparison with those which relate to the national defense.
+In the kingdom of Great Britain, where all the ostentatious
+ apparatus of monarchy is to be provided for, not above a fifteenth
+ part of the annual income of the nation is appropriated to the class
+ of expenses last mentioned; the other fourteen fifteenths are
+ absorbed in the payment of the interest of debts contracted for
+ carrying on the wars in which that country has been engaged, and in
+ the maintenance of fleets and armies. If, on the one hand, it
+ should be observed that the expenses incurred in the prosecution of
+ the ambitious enterprises and vainglorious pursuits of a monarchy
+ are not a proper standard by which to judge of those which might be
+ necessary in a republic, it ought, on the other hand, to be remarked
+ that there should be as great a disproportion between the profusion
+ and extravagance of a wealthy kingdom in its domestic
+ administration, and the frugality and economy which in that
+ particular become the modest simplicity of republican government.
+ If we balance a proper deduction from one side against that which
+ it is supposed ought to be made from the other, the proportion may
+ still be considered as holding good.
+But let us advert to the large debt which we have ourselves
+ contracted in a single war, and let us only calculate on a common
+ share of the events which disturb the peace of nations, and we shall
+ instantly perceive, without the aid of any elaborate illustration,
+ that there must always be an immense disproportion between the
+ objects of federal and state expenditures. It is true that several
+ of the States, separately, are encumbered with considerable debts,
+ which are an excrescence of the late war. But this cannot happen
+ again, if the proposed system be adopted; and when these debts are
+ discharged, the only call for revenue of any consequence, which the
+ State governments will continue to experience, will be for the mere
+ support of their respective civil list; to which, if we add all
+ contingencies, the total amount in every State ought to fall
+ considerably short of two hundred thousand pounds.
+In framing a government for posterity as well as ourselves, we
+ ought, in those provisions which are designed to be permanent, to
+ calculate, not on temporary, but on permanent causes of expense. If
+ this principle be a just one our attention would be directed to a
+ provision in favor of the State governments for an annual sum of
+ about two hundred thousand pounds; while the exigencies of the
+ Union could be susceptible of no limits, even in imagination. In
+ this view of the subject, by what logic can it be maintained that
+ the local governments ought to command, in perpetuity, an EXCLUSIVE
+ source of revenue for any sum beyond the extent of two hundred
+ thousand pounds? To extend its power further, in EXCLUSION of the
+ authority of the Union, would be to take the resources of the
+ community out of those hands which stood in need of them for the
+ public welfare, in order to put them into other hands which could
+ have no just or proper occasion for them.
+Suppose, then, the convention had been inclined to proceed upon
+ the principle of a repartition of the objects of revenue, between
+ the Union and its members, in PROPORTION to their comparative
+ necessities; what particular fund could have been selected for the
+ use of the States, that would not either have been too much or too
+ little too little for their present, too much for their future
+ wants? As to the line of separation between external and internal
+ taxes, this would leave to the States, at a rough computation, the
+ command of two thirds of the resources of the community to defray
+ from a tenth to a twentieth part of its expenses; and to the Union,
+ one third of the resources of the community, to defray from nine
+ tenths to nineteen twentieths of its expenses. If we desert this
+ boundary and content ourselves with leaving to the States an
+ exclusive power of taxing houses and lands, there would still be a
+ great disproportion between the MEANS and the END; the possession
+ of one third of the resources of the community to supply, at most,
+ one tenth of its wants. If any fund could have been selected and
+ appropriated, equal to and not greater than the object, it would
+ have been inadequate to the discharge of the existing debts of the
+ particular States, and would have left them dependent on the Union
+ for a provision for this purpose.
+The preceding train of observation will justify the position
+ which has been elsewhere laid down, that ``A CONCURRENT JURISDICTION
+ in the article of taxation was the only admissible substitute for an
+ entire subordination, in respect to this branch of power, of State
+ authority to that of the Union.'' Any separation of the objects of
+ revenue that could have been fallen upon, would have amounted to a
+ sacrifice of the great INTERESTS of the Union to the POWER of the
+ individual States. The convention thought the concurrent
+ jurisdiction preferable to that subordination; and it is evident
+ that it has at least the merit of reconciling an indefinite
+ constitutional power of taxation in the Federal government with an
+ adequate and independent power in the States to provide for their
+ own necessities. There remain a few other lights, in which this
+ important subject of taxation will claim a further consideration.
+PUBLIUS.
+
+
+FEDERALIST No. 35
+
+The Same Subject Continued
+(Concerning the General Power of Taxation)
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+BEFORE we proceed to examine any other objections to an
+ indefinite power of taxation in the Union, I shall make one general
+ remark; which is, that if the jurisdiction of the national
+ government, in the article of revenue, should be restricted to
+ particular objects, it would naturally occasion an undue proportion
+ of the public burdens to fall upon those objects. Two evils would
+ spring from this source: the oppression of particular branches of
+ industry; and an unequal distribution of the taxes, as well among
+ the several States as among the citizens of the same State.
+Suppose, as has been contended for, the federal power of
+ taxation were to be confined to duties on imports, it is evident
+ that the government, for want of being able to command other
+ resources, would frequently be tempted to extend these duties to an
+ injurious excess. There are persons who imagine that they can never
+ be carried to too great a length; since the higher they are, the
+ more it is alleged they will tend to discourage an extravagant
+ consumption, to produce a favorable balance of trade, and to promote
+ domestic manufactures. But all extremes are pernicious in various
+ ways. Exorbitant duties on imported articles would beget a general
+ spirit of smuggling; which is always prejudicial to the fair
+ trader, and eventually to the revenue itself: they tend to render
+ other classes of the community tributary, in an improper degree, to
+ the manufacturing classes, to whom they give a premature monopoly of
+ the markets; they sometimes force industry out of its more natural
+ channels into others in which it flows with less advantage; and in
+ the last place, they oppress the merchant, who is often obliged to
+ pay them himself without any retribution from the consumer. When
+ the demand is equal to the quantity of goods at market, the consumer
+ generally pays the duty; but when the markets happen to be
+ overstocked, a great proportion falls upon the merchant, and
+ sometimes not only exhausts his profits, but breaks in upon his
+ capital. I am apt to think that a division of the duty, between the
+ seller and the buyer, more often happens than is commonly imagined.
+ It is not always possible to raise the price of a commodity in
+ exact proportion to every additional imposition laid upon it. The
+ merchant, especially in a country of small commercial capital, is
+ often under a necessity of keeping prices down in order to a more
+ expeditious sale.
+The maxim that the consumer is the payer, is so much oftener
+ true than the reverse of the proposition, that it is far more
+ equitable that the duties on imports should go into a common stock,
+ than that they should redound to the exclusive benefit of the
+ importing States. But it is not so generally true as to render it
+ equitable, that those duties should form the only national fund.
+ When they are paid by the merchant they operate as an additional
+ tax upon the importing State, whose citizens pay their proportion of
+ them in the character of consumers. In this view they are
+ productive of inequality among the States; which inequality would
+ be increased with the increased extent of the duties. The
+ confinement of the national revenues to this species of imposts
+ would be attended with inequality, from a different cause, between
+ the manufacturing and the non-manufacturing States. The States
+ which can go farthest towards the supply of their own wants, by
+ their own manufactures, will not, according to their numbers or
+ wealth, consume so great a proportion of imported articles as those
+ States which are not in the same favorable situation. They would
+ not, therefore, in this mode alone contribute to the public treasury
+ in a ratio to their abilities. To make them do this it is necessary
+ that recourse be had to excises, the proper objects of which are
+ particular kinds of manufactures. New York is more deeply
+ interested in these considerations than such of her citizens as
+ contend for limiting the power of the Union to external taxation may
+ be aware of. New York is an importing State, and is not likely
+ speedily to be, to any great extent, a manufacturing State. She
+ would, of course, suffer in a double light from restraining the
+ jurisdiction of the Union to commercial imposts.
+So far as these observations tend to inculcate a danger of the
+ import duties being extended to an injurious extreme it may be
+ observed, conformably to a remark made in another part of these
+ papers, that the interest of the revenue itself would be a
+ sufficient guard against such an extreme. I readily admit that this
+ would be the case, as long as other resources were open; but if the
+ avenues to them were closed, HOPE, stimulated by necessity, would
+ beget experiments, fortified by rigorous precautions and additional
+ penalties, which, for a time, would have the intended effect, till
+ there had been leisure to contrive expedients to elude these new
+ precautions. The first success would be apt to inspire false
+ opinions, which it might require a long course of subsequent
+ experience to correct. Necessity, especially in politics, often
+ occasions false hopes, false reasonings, and a system of measures
+ correspondingly erroneous. But even if this supposed excess should
+ not be a consequence of the limitation of the federal power of
+ taxation, the inequalities spoken of would still ensue, though not
+ in the same degree, from the other causes that have been noticed.
+ Let us now return to the examination of objections.
+One which, if we may judge from the frequency of its repetition,
+ seems most to be relied on, is, that the House of Representatives is
+ not sufficiently numerous for the reception of all the different
+ classes of citizens, in order to combine the interests and feelings
+ of every part of the community, and to produce a due sympathy
+ between the representative body and its constituents. This argument
+ presents itself under a very specious and seducing form; and is
+ well calculated to lay hold of the prejudices of those to whom it is
+ addressed. But when we come to dissect it with attention, it will
+ appear to be made up of nothing but fair-sounding words. The object
+ it seems to aim at is, in the first place, impracticable, and in the
+ sense in which it is contended for, is unnecessary. I reserve for
+ another place the discussion of the question which relates to the
+ sufficiency of the representative body in respect to numbers, and
+ shall content myself with examining here the particular use which
+ has been made of a contrary supposition, in reference to the
+ immediate subject of our inquiries.
+The idea of an actual representation of all classes of the
+ people, by persons of each class, is altogether visionary. Unless
+ it were expressly provided in the Constitution, that each different
+ occupation should send one or more members, the thing would never
+ take place in practice. Mechanics and manufacturers will always be
+ inclined, with few exceptions, to give their votes to merchants, in
+ preference to persons of their own professions or trades. Those
+ discerning citizens are well aware that the mechanic and
+ manufacturing arts furnish the materials of mercantile enterprise
+ and industry. Many of them, indeed, are immediately connected with
+ the operations of commerce. They know that the merchant is their
+ natural patron and friend; and they are aware, that however great
+ the confidence they may justly feel in their own good sense, their
+ interests can be more effectually promoted by the merchant than by
+ themselves. They are sensible that their habits in life have not
+ been such as to give them those acquired endowments, without which,
+ in a deliberative assembly, the greatest natural abilities are for
+ the most part useless; and that the influence and weight, and
+ superior acquirements of the merchants render them more equal to a
+ contest with any spirit which might happen to infuse itself into the
+ public councils, unfriendly to the manufacturing and trading
+ interests. These considerations, and many others that might be
+ mentioned prove, and experience confirms it, that artisans and
+ manufacturers will commonly be disposed to bestow their votes upon
+ merchants and those whom they recommend. We must therefore consider
+ merchants as the natural representatives of all these classes of the
+ community.
+With regard to the learned professions, little need be observed;
+ they truly form no distinct interest in society, and according to
+ their situation and talents, will be indiscriminately the objects of
+ the confidence and choice of each other, and of other parts of the
+ community.
+Nothing remains but the landed interest; and this, in a
+ political view, and particularly in relation to taxes, I take to be
+ perfectly united, from the wealthiest landlord down to the poorest
+ tenant. No tax can be laid on land which will not affect the
+ proprietor of millions of acres as well as the proprietor of a
+ single acre. Every landholder will therefore have a common interest
+ to keep the taxes on land as low as possible; and common interest
+ may always be reckoned upon as the surest bond of sympathy. But if
+ we even could suppose a distinction of interest between the opulent
+ landholder and the middling farmer, what reason is there to
+ conclude, that the first would stand a better chance of being
+ deputed to the national legislature than the last? If we take fact
+ as our guide, and look into our own senate and assembly, we shall
+ find that moderate proprietors of land prevail in both; nor is this
+ less the case in the senate, which consists of a smaller number,
+ than in the assembly, which is composed of a greater number. Where
+ the qualifications of the electors are the same, whether they have
+ to choose a small or a large number, their votes will fall upon
+ those in whom they have most confidence; whether these happen to be
+ men of large fortunes, or of moderate property, or of no property at
+ all.
+It is said to be necessary, that all classes of citizens should
+ have some of their own number in the representative body, in order
+ that their feelings and interests may be the better understood and
+ attended to. But we have seen that this will never happen under any
+ arrangement that leaves the votes of the people free. Where this is
+ the case, the representative body, with too few exceptions to have
+ any influence on the spirit of the government, will be composed of
+ landholders, merchants, and men of the learned professions. But
+ where is the danger that the interests and feelings of the different
+ classes of citizens will not be understood or attended to by these
+ three descriptions of men? Will not the landholder know and feel
+ whatever will promote or insure the interest of landed property?
+ And will he not, from his own interest in that species of property,
+ be sufficiently prone to resist every attempt to prejudice or
+ encumber it? Will not the merchant understand and be disposed to
+ cultivate, as far as may be proper, the interests of the mechanic
+ and manufacturing arts, to which his commerce is so nearly allied?
+ Will not the man of the learned profession, who will feel a
+ neutrality to the rivalships between the different branches of
+ industry, be likely to prove an impartial arbiter between them,
+ ready to promote either, so far as it shall appear to him conducive
+ to the general interests of the society?
+If we take into the account the momentary humors or dispositions
+ which may happen to prevail in particular parts of the society, and
+ to which a wise administration will never be inattentive, is the man
+ whose situation leads to extensive inquiry and information less
+ likely to be a competent judge of their nature, extent, and
+ foundation than one whose observation does not travel beyond the
+ circle of his neighbors and acquaintances? Is it not natural that a
+ man who is a candidate for the favor of the people, and who is
+ dependent on the suffrages of his fellow-citizens for the
+ continuance of his public honors, should take care to inform himself
+ of their dispositions and inclinations, and should be willing to
+ allow them their proper degree of influence upon his conduct? This
+ dependence, and the necessity of being bound himself, and his
+ posterity, by the laws to which he gives his assent, are the true,
+ and they are the strong chords of sympathy between the
+ representative and the constituent.
+There is no part of the administration of government that
+ requires extensive information and a thorough knowledge of the
+ principles of political economy, so much as the business of taxation.
+ The man who understands those principles best will be least likely
+ to resort to oppressive expedients, or sacrifice any particular
+ class of citizens to the procurement of revenue. It might be
+ demonstrated that the most productive system of finance will always
+ be the least burdensome. There can be no doubt that in order to a
+ judicious exercise of the power of taxation, it is necessary that
+ the person in whose hands it should be acquainted with the general
+ genius, habits, and modes of thinking of the people at large, and
+ with the resources of the country. And this is all that can be
+ reasonably meant by a knowledge of the interests and feelings of the
+ people. In any other sense the proposition has either no meaning,
+ or an absurd one. And in that sense let every considerate citizen
+ judge for himself where the requisite qualification is most likely
+ to be found.
+PUBLIUS.
+
+
+FEDERALIST No. 36
+
+The Same Subject Continued
+(Concerning the General Power of Taxation)
+From the New York Packet.
+Tuesday January 8, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+WE HAVE seen that the result of the observations, to which the
+ foregoing number has been principally devoted, is, that from the
+ natural operation of the different interests and views of the
+ various classes of the community, whether the representation of the
+ people be more or less numerous, it will consist almost entirely of
+ proprietors of land, of merchants, and of members of the learned
+ professions, who will truly represent all those different interests
+ and views. If it should be objected that we have seen other
+ descriptions of men in the local legislatures, I answer that it is
+ admitted there are exceptions to the rule, but not in sufficient
+ number to influence the general complexion or character of the
+ government. There are strong minds in every walk of life that will
+ rise superior to the disadvantages of situation, and will command
+ the tribute due to their merit, not only from the classes to which
+ they particularly belong, but from the society in general. The door
+ ought to be equally open to all; and I trust, for the credit of
+ human nature, that we shall see examples of such vigorous plants
+ flourishing in the soil of federal as well as of State legislation;
+ but occasional instances of this sort will not render the reasoning
+ founded upon the general course of things, less conclusive.
+The subject might be placed in several other lights that would
+ all lead to the same result; and in particular it might be asked,
+ What greater affinity or relation of interest can be conceived
+ between the carpenter and blacksmith, and the linen manufacturer or
+ stocking weaver, than between the merchant and either of them? It
+ is notorious that there are often as great rivalships between
+ different branches of the mechanic or manufacturing arts as there
+ are between any of the departments of labor and industry; so that,
+ unless the representative body were to be far more numerous than
+ would be consistent with any idea of regularity or wisdom in its
+ deliberations, it is impossible that what seems to be the spirit of
+ the objection we have been considering should ever be realized in
+ practice. But I forbear to dwell any longer on a matter which has
+ hitherto worn too loose a garb to admit even of an accurate
+ inspection of its real shape or tendency.
+There is another objection of a somewhat more precise nature
+ that claims our attention. It has been asserted that a power of
+ internal taxation in the national legislature could never be
+ exercised with advantage, as well from the want of a sufficient
+ knowledge of local circumstances, as from an interference between
+ the revenue laws of the Union and of the particular States. The
+ supposition of a want of proper knowledge seems to be entirely
+ destitute of foundation. If any question is depending in a State
+ legislature respecting one of the counties, which demands a
+ knowledge of local details, how is it acquired? No doubt from the
+ information of the members of the county. Cannot the like knowledge
+ be obtained in the national legislature from the representatives of
+ each State? And is it not to be presumed that the men who will
+ generally be sent there will be possessed of the necessary degree of
+ intelligence to be able to communicate that information? Is the
+ knowledge of local circumstances, as applied to taxation, a minute
+ topographical acquaintance with all the mountains, rivers, streams,
+ highways, and bypaths in each State; or is it a general
+ acquaintance with its situation and resources, with the state of its
+ agriculture, commerce, manufactures, with the nature of its products
+ and consumptions, with the different degrees and kinds of its
+ wealth, property, and industry?
+Nations in general, even under governments of the more popular
+ kind, usually commit the administration of their finances to single
+ men or to boards composed of a few individuals, who digest and
+ prepare, in the first instance, the plans of taxation, which are
+ afterwards passed into laws by the authority of the sovereign or
+ legislature.
+Inquisitive and enlightened statesmen are deemed everywhere best
+ qualified to make a judicious selection of the objects proper for
+ revenue; which is a clear indication, as far as the sense of
+ mankind can have weight in the question, of the species of knowledge
+ of local circumstances requisite to the purposes of taxation.
+The taxes intended to be comprised under the general
+ denomination of internal taxes may be subdivided into those of the
+ DIRECT and those of the INDIRECT kind. Though the objection be made
+ to both, yet the reasoning upon it seems to be confined to the
+ former branch. And indeed, as to the latter, by which must be
+ understood duties and excises on articles of consumption, one is at
+ a loss to conceive what can be the nature of the difficulties
+ apprehended. The knowledge relating to them must evidently be of a
+ kind that will either be suggested by the nature of the article
+ itself, or can easily be procured from any well-informed man,
+ especially of the mercantile class. The circumstances that may
+ distinguish its situation in one State from its situation in another
+ must be few, simple, and easy to be comprehended. The principal
+ thing to be attended to, would be to avoid those articles which had
+ been previously appropriated to the use of a particular State; and
+ there could be no difficulty in ascertaining the revenue system of
+ each. This could always be known from the respective codes of laws,
+ as well as from the information of the members from the several
+ States.
+The objection, when applied to real property or to houses and
+ lands, appears to have, at first sight, more foundation, but even in
+ this view it will not bear a close examination. Land taxes are co
+ monly laid in one of two modes, either by ACTUAL valuations,
+ permanent or periodical, or by OCCASIONAL assessments, at the
+ discretion, or according to the best judgment, of certain officers
+ whose duty it is to make them. In either case, the EXECUTION of the
+ business, which alone requires the knowledge of local details, must
+ be devolved upon discreet persons in the character of commissioners
+ or assessors, elected by the people or appointed by the government
+ for the purpose. All that the law can do must be to name the
+ persons or to prescribe the manner of their election or appointment,
+ to fix their numbers and qualifications and to draw the general
+ outlines of their powers and duties. And what is there in all this
+ that cannot as well be performed by the national legislature as by a
+ State legislature? The attention of either can only reach to
+ general principles; local details, as already observed, must be
+ referred to those who are to execute the plan.
+But there is a simple point of view in which this matter may be
+ placed that must be altogether satisfactory. The national
+ legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT
+ STATE. The method of laying and collecting this species of taxes in
+ each State can, in all its parts, be adopted and employed by the
+ federal government.
+Let it be recollected that the proportion of these taxes is not
+ to be left to the discretion of the national legislature, but is to
+ be determined by the numbers of each State, as described in the
+ second section of the first article. An actual census or
+ enumeration of the people must furnish the rule, a circumstance
+ which effectually shuts the door to partiality or oppression. The
+ abuse of this power of taxation seems to have been provided against
+ with guarded circumspection. In addition to the precaution just
+ mentioned, there is a provision that ``all duties, imposts, and
+ excises shall be UNIFORM throughout the United States.''
+It has been very properly observed by different speakers and
+ writers on the side of the Constitution, that if the exercise of the
+ power of internal taxation by the Union should be discovered on
+ experiment to be really inconvenient, the federal government may
+ then forbear the use of it, and have recourse to requisitions in its
+ stead. By way of answer to this, it has been triumphantly asked,
+ Why not in the first instance omit that ambiguous power, and rely
+ upon the latter resource? Two solid answers may be given. The
+ first is, that the exercise of that power, if convenient, will be
+ preferable, because it will be more effectual; and it is impossible
+ to prove in theory, or otherwise than by the experiment, that it
+ cannot be advantageously exercised. The contrary, indeed, appears
+ most probable. The second answer is, that the existence of such a
+ power in the Constitution will have a strong influence in giving
+ efficacy to requisitions. When the States know that the Union can
+ apply itself without their agency, it will be a powerful motive for
+ exertion on their part.
+As to the interference of the revenue laws of the Union, and of
+ its members, we have already seen that there can be no clashing or
+ repugnancy of authority. The laws cannot, therefore, in a legal
+ sense, interfere with each other; and it is far from impossible to
+ avoid an interference even in the policy of their different systems.
+ An effectual expedient for this purpose will be, mutually, to
+ abstain from those objects which either side may have first had
+ recourse to. As neither can CONTROL the other, each will have an
+ obvious and sensible interest in this reciprocal forbearance. And
+ where there is an IMMEDIATE common interest, we may safely count
+ upon its operation. When the particular debts of the States are
+ done away, and their expenses come to be limited within their
+ natural compass, the possibility almost of interference will vanish.
+ A small land tax will answer the purpose of the States, and will be
+ their most simple and most fit resource.
+Many spectres have been raised out of this power of internal
+ taxation, to excite the apprehensions of the people: double sets of
+ revenue officers, a duplication of their burdens by double
+ taxations, and the frightful forms of odious and oppressive
+ poll-taxes, have been played off with all the ingenious dexterity of
+ political legerdemain.
+As to the first point, there are two cases in which there can be
+ no room for double sets of officers: one, where the right of
+ imposing the tax is exclusively vested in the Union, which applies
+ to the duties on imports; the other, where the object has not
+ fallen under any State regulation or provision, which may be
+ applicable to a variety of objects. In other cases, the probability
+ is that the United States will either wholly abstain from the
+ objects preoccupied for local purposes, or will make use of the
+ State officers and State regulations for collecting the additional
+ imposition. This will best answer the views of revenue, because it
+ will save expense in the collection, and will best avoid any
+ occasion of disgust to the State governments and to the people. At
+ all events, here is a practicable expedient for avoiding such an
+ inconvenience; and nothing more can be required than to show that
+ evils predicted to not necessarily result from the plan.
+As to any argument derived from a supposed system of influence,
+ it is a sufficient answer to say that it ought not to be presumed;
+ but the supposition is susceptible of a more precise answer. If
+ such a spirit should infest the councils of the Union, the most
+ certain road to the accomplishment of its aim would be to employ the
+ State officers as much as possible, and to attach them to the Union
+ by an accumulation of their emoluments. This would serve to turn
+ the tide of State influence into the channels of the national
+ government, instead of making federal influence flow in an opposite
+ and adverse current. But all suppositions of this kind are
+ invidious, and ought to be banished from the consideration of the
+ great question before the people. They can answer no other end than
+ to cast a mist over the truth.
+As to the suggestion of double taxation, the answer is plain.
+ The wants of the Union are to be supplied in one way or another;
+ if to be done by the authority of the federal government, it will
+ not be to be done by that of the State government. The quantity of
+ taxes to be paid by the community must be the same in either case;
+ with this advantage, if the provision is to be made by the
+ Union that the capital resource of commercial imposts, which is the
+ most convenient branch of revenue, can be prudently improved to a
+ much greater extent under federal than under State regulation, and
+ of course will render it less necessary to recur to more
+ inconvenient methods; and with this further advantage, that as far
+ as there may be any real difficulty in the exercise of the power of
+ internal taxation, it will impose a disposition to greater care in
+ the choice and arrangement of the means; and must naturally tend to
+ make it a fixed point of policy in the national administration to go
+ as far as may be practicable in making the luxury of the rich
+ tributary to the public treasury, in order to diminish the necessity
+ of those impositions which might create dissatisfaction in the
+ poorer and most numerous classes of the society. Happy it is when
+ the interest which the government has in the preservation of its own
+ power, coincides with a proper distribution of the public burdens,
+ and tends to guard the least wealthy part of the community from
+ oppression!
+As to poll taxes, I, without scruple, confess my disapprobation
+ of them; and though they have prevailed from an early period in
+ those States [1] which have uniformly been the most tenacious of
+ their rights, I should lament to see them introduced into practice
+ under the national government. But does it follow because there is
+ a power to lay them that they will actually be laid? Every State in
+ the Union has power to impose taxes of this kind; and yet in
+ several of them they are unknown in practice. Are the State
+ governments to be stigmatized as tyrannies, because they possess
+ this power? If they are not, with what propriety can the like power
+ justify such a charge against the national government, or even be
+ urged as an obstacle to its adoption? As little friendly as I am to
+ the species of imposition, I still feel a thorough conviction that
+ the power of having recourse to it ought to exist in the federal
+ government. There are certain emergencies of nations, in which
+ expedients, that in the ordinary state of things ought to be
+ forborne, become essential to the public weal. And the government,
+ from the possibility of such emergencies, ought ever to have the
+ option of making use of them. The real scarcity of objects in this
+ country, which may be considered as productive sources of revenue,
+ is a reason peculiar to itself, for not abridging the discretion of
+ the national councils in this respect. There may exist certain
+ critical and tempestuous conjunctures of the State, in which a poll
+ tax may become an inestimable resource. And as I know nothing to
+ exempt this portion of the globe from the common calamities that
+ have befallen other parts of it, I acknowledge my aversion to every
+ project that is calculated to disarm the government of a single
+ weapon, which in any possible contingency might be usefully employed
+ for the general defense and security.
+I have now gone through the examination of such of the powers
+ proposed to be vested in the United States, which may be considered
+ as having an immediate relation to the energy of the government;
+ and have endeavored to answer the principal objections which have
+ been made to them. I have passed over in silence those minor
+ authorities, which are either too inconsiderable to have been
+ thought worthy of the hostilities of the opponents of the
+ Constitution, or of too manifest propriety to admit of controversy.
+ The mass of judiciary power, however, might have claimed an
+ investigation under this head, had it not been for the consideration
+ that its organization and its extent may be more advantageously
+ considered in connection. This has determined me to refer it to the
+ branch of our inquiries upon which we shall next enter.
+PUBLIUS.
+FNA1-@1 The New England States.
+
+
+FEDERALIST No. 37
+
+Concerning the Difficulties of the Convention in Devising a Proper
+ Form of Government
+From the Daily Advertiser.
+Friday, January 11, 1788.
+
+MADISON
+
+To the People of the State of New York:
+IN REVIEWING the defects of the existing Confederation, and
+ showing that they cannot be supplied by a government of less energy
+ than that before the public, several of the most important
+ principles of the latter fell of course under consideration. But as
+ the ultimate object of these papers is to determine clearly and
+ fully the merits of this Constitution, and the expediency of
+ adopting it, our plan cannot be complete without taking a more
+ critical and thorough survey of the work of the convention, without
+ examining it on all its sides, comparing it in all its parts, and
+ calculating its probable effects.
+That this remaining task may be executed under impressions
+ conducive to a just and fair result, some reflections must in this
+ place be indulged, which candor previously suggests.
+It is a misfortune, inseparable from human affairs, that public
+ measures are rarely investigated with that spirit of moderation
+ which is essential to a just estimate of their real tendency to
+ advance or obstruct the public good; and that this spirit is more
+ apt to be diminished than promoted, by those occasions which require
+ an unusual exercise of it. To those who have been led by experience
+ to attend to this consideration, it could not appear surprising,
+ that the act of the convention, which recommends so many important
+ changes and innovations, which may be viewed in so many lights and
+ relations, and which touches the springs of so many passions and
+ interests, should find or excite dispositions unfriendly, both on
+ one side and on the other, to a fair discussion and accurate
+ judgment of its merits. In some, it has been too evident from their
+ own publications, that they have scanned the proposed Constitution,
+ not only with a predisposition to censure, but with a
+ predetermination to condemn; as the language held by others betrays
+ an opposite predetermination or bias, which must render their
+ opinions also of little moment in the question. In placing,
+ however, these different characters on a level, with respect to the
+ weight of their opinions, I wish not to insinuate that there may not
+ be a material difference in the purity of their intentions. It is
+ but just to remark in favor of the latter description, that as our
+ situation is universally admitted to be peculiarly critical, and to
+ require indispensably that something should be done for our relief,
+ the predetermined patron of what has been actually done may have
+ taken his bias from the weight of these considerations, as well as
+ from considerations of a sinister nature. The predetermined
+ adversary, on the other hand, can have been governed by no venial
+ motive whatever. The intentions of the first may be upright, as
+ they may on the contrary be culpable. The views of the last cannot
+ be upright, and must be culpable. But the truth is, that these
+ papers are not addressed to persons falling under either of these
+ characters. They solicit the attention of those only, who add to a
+ sincere zeal for the happiness of their country, a temper favorable
+ to a just estimate of the means of promoting it.
+Persons of this character will proceed to an examination of the
+ plan submitted by the convention, not only without a disposition to
+ find or to magnify faults; but will see the propriety of
+ reflecting, that a faultless plan was not to be expected. Nor will
+ they barely make allowances for the errors which may be chargeable
+ on the fallibility to which the convention, as a body of men, were
+ liable; but will keep in mind, that they themselves also are but
+ men, and ought not to assume an infallibility in rejudging the
+ fallible opinions of others.
+With equal readiness will it be perceived, that besides these
+ inducements to candor, many allowances ought to be made for the
+ difficulties inherent in the very nature of the undertaking referred
+ to the convention.
+The novelty of the undertaking immediately strikes us. It has
+ been shown in the course of these papers, that the existing
+ Confederation is founded on principles which are fallacious; that
+ we must consequently change this first foundation, and with it the
+ superstructure resting upon it. It has been shown, that the other
+ confederacies which could be consulted as precedents have been
+ vitiated by the same erroneous principles, and can therefore furnish
+ no other light than that of beacons, which give warning of the
+ course to be shunned, without pointing out that which ought to be
+ pursued. The most that the convention could do in such a situation,
+ was to avoid the errors suggested by the past experience of other
+ countries, as well as of our own; and to provide a convenient mode
+ of rectifying their own errors, as future experiences may unfold
+ them.
+Among the difficulties encountered by the convention, a very
+ important one must have lain in combining the requisite stability
+ and energy in government, with the inviolable attention due to
+ liberty and to the republican form. Without substantially
+ accomplishing this part of their undertaking, they would have very
+ imperfectly fulfilled the object of their appointment, or the
+ expectation of the public; yet that it could not be easily
+ accomplished, will be denied by no one who is unwilling to betray
+ his ignorance of the subject. Energy in government is essential to
+ that security against external and internal danger, and to that
+ prompt and salutary execution of the laws which enter into the very
+ definition of good government. Stability in government is essential
+ to national character and to the advantages annexed to it, as well
+ as to that repose and confidence in the minds of the people, which
+ are among the chief blessings of civil society. An irregular and
+ mutable legislation is not more an evil in itself than it is odious
+ to the people; and it may be pronounced with assurance that the
+ people of this country, enlightened as they are with regard to the
+ nature, and interested, as the great body of them are, in the
+ effects of good government, will never be satisfied till some remedy
+ be applied to the vicissitudes and uncertainties which characterize
+ the State administrations. On comparing, however, these valuable
+ ingredients with the vital principles of liberty, we must perceive
+ at once the difficulty of mingling them together in their due
+ proportions. The genius of republican liberty seems to demand on
+ one side, not only that all power should be derived from the people,
+ but that those intrusted with it should be kept in independence on
+ the people, by a short duration of their appointments; and that
+ even during this short period the trust should be placed not in a
+ few, but a number of hands. Stability, on the contrary, requires
+ that the hands in which power is lodged should continue for a length
+ of time the same. A frequent change of men will result from a
+ frequent return of elections; and a frequent change of measures
+ from a frequent change of men: whilst energy in government requires
+ not only a certain duration of power, but the execution of it by a
+ single hand.
+How far the convention may have succeeded in this part of their
+ work, will better appear on a more accurate view of it. From the
+ cursory view here taken, it must clearly appear to have been an
+ arduous part.
+Not less arduous must have been the task of marking the proper
+ line of partition between the authority of the general and that of
+ the State governments. Every man will be sensible of this
+ difficulty, in proportion as he has been accustomed to contemplate
+ and discriminate objects extensive and complicated in their nature.
+ The faculties of the mind itself have never yet been distinguished
+ and defined, with satisfactory precision, by all the efforts of the
+ most acute and metaphysical philosophers. Sense, perception,
+ judgment, desire, volition, memory, imagination, are found to be
+ separated by such delicate shades and minute gradations that their
+ boundaries have eluded the most subtle investigations, and remain a
+ pregnant source of ingenious disquisition and controversy. The
+ boundaries between the great kingdom of nature, and, still more,
+ between the various provinces, and lesser portions, into which they
+ are subdivided, afford another illustration of the same important
+ truth. The most sagacious and laborious naturalists have never yet
+ succeeded in tracing with certainty the line which separates the
+ district of vegetable life from the neighboring region of
+ unorganized matter, or which marks the termination of the former and
+ the commencement of the animal empire. A still greater obscurity
+ lies in the distinctive characters by which the objects in each of
+ these great departments of nature have been arranged and assorted.
+When we pass from the works of nature, in which all the
+ delineations are perfectly accurate, and appear to be otherwise only
+ from the imperfection of the eye which surveys them, to the
+ institutions of man, in which the obscurity arises as well from the
+ object itself as from the organ by which it is contemplated, we must
+ perceive the necessity of moderating still further our expectations
+ and hopes from the efforts of human sagacity. Experience has
+ instructed us that no skill in the science of government has yet
+ been able to discriminate and define, with sufficient certainty, its
+ three great provinces the legislative, executive, and judiciary; or
+ even the privileges and powers of the different legislative branches.
+ Questions daily occur in the course of practice, which prove the
+ obscurity which reins in these subjects, and which puzzle the
+ greatest adepts in political science.
+The experience of ages, with the continued and combined labors
+ of the most enlightened legislatures and jurists, has been equally
+ unsuccessful in delineating the several objects and limits of
+ different codes of laws and different tribunals of justice. The
+ precise extent of the common law, and the statute law, the maritime
+ law, the ecclesiastical law, the law of corporations, and other
+ local laws and customs, remains still to be clearly and finally
+ established in Great Britain, where accuracy in such subjects has
+ been more industriously pursued than in any other part of the world.
+ The jurisdiction of her several courts, general and local, of law,
+ of equity, of admiralty, etc., is not less a source of frequent and
+ intricate discussions, sufficiently denoting the indeterminate
+ limits by which they are respectively circumscribed. All new laws,
+ though penned with the greatest technical skill, and passed on the
+ fullest and most mature deliberation, are considered as more or less
+ obscure and equivocal, until their meaning be liquidated and
+ ascertained by a series of particular discussions and adjudications.
+ Besides the obscurity arising from the complexity of objects, and
+ the imperfection of the human faculties, the medium through which
+ the conceptions of men are conveyed to each other adds a fresh
+ embarrassment. The use of words is to express ideas. Perspicuity,
+ therefore, requires not only that the ideas should be distinctly
+ formed, but that they should be expressed by words distinctly and
+ exclusively appropriate to them. But no language is so copious as
+ to supply words and phrases for every complex idea, or so correct as
+ not to include many equivocally denoting different ideas. Hence it
+ must happen that however accurately objects may be discriminated in
+ themselves, and however accurately the discrimination may be
+ considered, the definition of them may be rendered inaccurate by the
+ inaccuracy of the terms in which it is delivered. And this
+ unavoidable inaccuracy must be greater or less, according to the
+ complexity and novelty of the objects defined. When the Almighty
+ himself condescends to address mankind in their own language, his
+ meaning, luminous as it must be, is rendered dim and doubtful by the
+ cloudy medium through which it is communicated.
+Here, then, are three sources of vague and incorrect
+ definitions: indistinctness of the object, imperfection of the
+ organ of conception, inadequateness of the vehicle of ideas. Any
+ one of these must produce a certain degree of obscurity. The
+ convention, in delineating the boundary between the federal and
+ State jurisdictions, must have experienced the full effect of them
+ all.
+To the difficulties already mentioned may be added the
+ interfering pretensions of the larger and smaller States. We cannot
+ err in supposing that the former would contend for a participation
+ in the government, fully proportioned to their superior wealth and
+ importance; and that the latter would not be less tenacious of the
+ equality at present enjoyed by them. We may well suppose that
+ neither side would entirely yield to the other, and consequently
+ that the struggle could be terminated only by compromise. It is
+ extremely probable, also, that after the ratio of representation had
+ been adjusted, this very compromise must have produced a fresh
+ struggle between the same parties, to give such a turn to the
+ organization of the government, and to the distribution of its
+ powers, as would increase the importance of the branches, in forming
+ which they had respectively obtained the greatest share of influence.
+ There are features in the Constitution which warrant each of these
+ suppositions; and as far as either of them is well founded, it
+ shows that the convention must have been compelled to sacrifice
+ theoretical propriety to the force of extraneous considerations.
+Nor could it have been the large and small States only, which
+ would marshal themselves in opposition to each other on various
+ points. Other combinations, resulting from a difference of local
+ position and policy, must have created additional difficulties. As
+ every State may be divided into different districts, and its
+ citizens into different classes, which give birth to contending
+ interests and local jealousies, so the different parts of the United
+ States are distinguished from each other by a variety of
+ circumstances, which produce a like effect on a larger scale. And
+ although this variety of interests, for reasons sufficiently
+ explained in a former paper, may have a salutary influence on the
+ administration of the government when formed, yet every one must be
+ sensible of the contrary influence, which must have been experienced
+ in the task of forming it.
+Would it be wonderful if, under the pressure of all these
+ difficulties, the convention should have been forced into some
+ deviations from that artificial structure and regular symmetry which
+ an abstract view of the subject might lead an ingenious theorist to
+ bestow on a Constitution planned in his closet or in his
+ imagination? The real wonder is that so many difficulties should
+ have been surmounted, and surmounted with a unanimity almost as
+ unprecedented as it must have been unexpected. It is impossible for
+ any man of candor to reflect on this circumstance without partaking
+ of the astonishment. It is impossible for the man of pious
+ reflection not to perceive in it a finger of that Almighty hand
+ which has been so frequently and signally extended to our relief in
+ the critical stages of the revolution.
+We had occasion, in a former paper, to take notice of the
+ repeated trials which have been unsuccessfully made in the United
+ Netherlands for reforming the baneful and notorious vices of their
+ constitution. The history of almost all the great councils and
+ consultations held among mankind for reconciling their discordant
+ opinions, assuaging their mutual jealousies, and adjusting their
+ respective interests, is a history of factions, contentions, and
+ disappointments, and may be classed among the most dark and degraded
+ pictures which display the infirmities and depravities of the human
+ character. If, in a few scattered instances, a brighter aspect is
+ presented, they serve only as exceptions to admonish us of the
+ general truth; and by their lustre to darken the gloom of the
+ adverse prospect to which they are contrasted. In revolving the
+ causes from which these exceptions result, and applying them to the
+ particular instances before us, we are necessarily led to two
+ important conclusions. The first is, that the convention must have
+ enjoyed, in a very singular degree, an exemption from the
+ pestilential influence of party animosities the disease most
+ incident to deliberative bodies, and most apt to contaminate their
+ proceedings. The second conclusion is that all the deputations
+ composing the convention were satisfactorily accommodated by the
+ final act, or were induced to accede to it by a deep conviction of
+ the necessity of sacrificing private opinions and partial interests
+ to the public good, and by a despair of seeing this necessity
+ diminished by delays or by new experiments.
+
+
+FEDERALIST No. 38
+
+The Same Subject Continued, and the Incoherence of the Objections
+ to the New Plan Exposed
+From the New York Packet.
+Tuesday, January 15, 1788.
+
+MADISON
+
+To the People of the State of New York:
+IT IS not a little remarkable that in every case reported by
+ ancient history, in which government has been established with
+ deliberation and consent, the task of framing it has not been
+ committed to an assembly of men, but has been performed by some
+ individual citizen of preeminent wisdom and approved integrity.
+Minos, we learn, was the primitive founder of the government of
+ Crete, as Zaleucus was of that of the Locrians. Theseus first, and
+ after him Draco and Solon, instituted the government of Athens.
+ Lycurgus was the lawgiver of Sparta. The foundation of the
+ original government of Rome was laid by Romulus, and the work
+ completed by two of his elective successors, Numa and Tullius
+ Hostilius. On the abolition of royalty the consular administration
+ was substituted by Brutus, who stepped forward with a project for
+ such a reform, which, he alleged, had been prepared by Tullius
+ Hostilius, and to which his address obtained the assent and
+ ratification of the senate and people. This remark is applicable to
+ confederate governments also. Amphictyon, we are told, was the
+ author of that which bore his name. The Achaean league received its
+ first birth from Achaeus, and its second from Aratus.
+What degree of agency these reputed lawgivers might have in
+ their respective establishments, or how far they might be clothed
+ with the legitimate authority of the people, cannot in every
+ instance be ascertained. In some, however, the proceeding was
+ strictly regular. Draco appears to have been intrusted by the
+ people of Athens with indefinite powers to reform its government and
+ laws. And Solon, according to Plutarch, was in a manner compelled,
+ by the universal suffrage of his fellow-citizens, to take upon him
+ the sole and absolute power of new-modeling the constitution. The
+ proceedings under Lycurgus were less regular; but as far as the
+ advocates for a regular reform could prevail, they all turned their
+ eyes towards the single efforts of that celebrated patriot and sage,
+ instead of seeking to bring about a revolution by the intervention
+ of a deliberative body of citizens.
+Whence could it have proceeded, that a people, jealous as the
+ Greeks were of their liberty, should so far abandon the rules of
+ caution as to place their destiny in the hands of a single citizen?
+ Whence could it have proceeded, that the Athenians, a people who
+ would not suffer an army to be commanded by fewer than ten generals,
+ and who required no other proof of danger to their liberties than
+ the illustrious merit of a fellow-citizen, should consider one
+ illustrious citizen as a more eligible depositary of the fortunes of
+ themselves and their posterity, than a select body of citizens, from
+ whose common deliberations more wisdom, as well as more safety,
+ might have been expected? These questions cannot be fully answered,
+ without supposing that the fears of discord and disunion among a
+ number of counsellors exceeded the apprehension of treachery or
+ incapacity in a single individual. History informs us, likewise, of
+ the difficulties with which these celebrated reformers had to
+ contend, as well as the expedients which they were obliged to employ
+ in order to carry their reforms into effect. Solon, who seems to
+ have indulged a more temporizing policy, confessed that he had not
+ given to his countrymen the government best suited to their
+ happiness, but most tolerable to their prejudices. And Lycurgus,
+ more true to his object, was under the necessity of mixing a portion
+ of violence with the authority of superstition, and of securing his
+ final success by a voluntary renunciation, first of his country, and
+ then of his life. If these lessons teach us, on one hand, to admire
+ the improvement made by America on the ancient mode of preparing and
+ establishing regular plans of government, they serve not less, on
+ the other, to admonish us of the hazards and difficulties incident
+ to such experiments, and of the great imprudence of unnecessarily
+ multiplying them.
+Is it an unreasonable conjecture, that the errors which may be
+ contained in the plan of the convention are such as have resulted
+ rather from the defect of antecedent experience on this complicated
+ and difficult subject, than from a want of accuracy or care in the
+ investigation of it; and, consequently such as will not be
+ ascertained until an actual trial shall have pointed them out? This
+ conjecture is rendered probable, not only by many considerations of
+ a general nature, but by the particular case of the Articles of
+ Confederation. It is observable that among the numerous objections
+ and amendments suggested by the several States, when these articles
+ were submitted for their ratification, not one is found which
+ alludes to the great and radical error which on actual trial has
+ discovered itself. And if we except the observations which New
+ Jersey was led to make, rather by her local situation, than by her
+ peculiar foresight, it may be questioned whether a single suggestion
+ was of sufficient moment to justify a revision of the system. There
+ is abundant reason, nevertheless, to suppose that immaterial as
+ these objections were, they would have been adhered to with a very
+ dangerous inflexibility, in some States, had not a zeal for their
+ opinions and supposed interests been stifled by the more powerful
+ sentiment of selfpreservation. One State, we may remember,
+ persisted for several years in refusing her concurrence, although
+ the enemy remained the whole period at our gates, or rather in the
+ very bowels of our country. Nor was her pliancy in the end effected
+ by a less motive, than the fear of being chargeable with protracting
+ the public calamities, and endangering the event of the contest.
+ Every candid reader will make the proper reflections on these
+ important facts.
+A patient who finds his disorder daily growing worse, and that
+ an efficacious remedy can no longer be delayed without extreme
+ danger, after coolly revolving his situation, and the characters of
+ different physicians, selects and calls in such of them as he judges
+ most capable of administering relief, and best entitled to his
+ confidence. The physicians attend; the case of the patient is
+ carefully examined; a consultation is held; they are unanimously
+ agreed that the symptoms are critical, but that the case, with
+ proper and timely relief, is so far from being desperate, that it
+ may be made to issue in an improvement of his constitution. They
+ are equally unanimous in prescribing the remedy, by which this happy
+ effect is to be produced. The prescription is no sooner made known,
+ however, than a number of persons interpose, and, without denying
+ the reality or danger of the disorder, assure the patient that the
+ prescription will be poison to his constitution, and forbid him,
+ under pain of certain death, to make use of it. Might not the
+ patient reasonably demand, before he ventured to follow this advice,
+ that the authors of it should at least agree among themselves on
+ some other remedy to be substituted? And if he found them differing
+ as much from one another as from his first counsellors, would he not
+ act prudently in trying the experiment unanimously recommended by
+ the latter, rather than be hearkening to those who could neither
+ deny the necessity of a speedy remedy, nor agree in proposing one?
+Such a patient and in such a situation is America at this moment.
+ She has been sensible of her malady. She has obtained a regular
+ and unanimous advice from men of her own deliberate choice. And she
+ is warned by others against following this advice under pain of the
+ most fatal consequences. Do the monitors deny the reality of her
+ danger? No. Do they deny the necessity of some speedy and powerful
+ remedy? No. Are they agreed, are any two of them agreed, in their
+ objections to the remedy proposed, or in the proper one to be
+ substituted? Let them speak for themselves. This one tells us that
+ the proposed Constitution ought to be rejected, because it is not a
+ confederation of the States, but a government over individuals.
+ Another admits that it ought to be a government over individuals to
+ a certain extent, but by no means to the extent proposed. A third
+ does not object to the government over individuals, or to the extent
+ proposed, but to the want of a bill of rights. A fourth concurs in
+ the absolute necessity of a bill of rights, but contends that it
+ ought to be declaratory, not of the personal rights of individuals,
+ but of the rights reserved to the States in their political capacity.
+ A fifth is of opinion that a bill of rights of any sort would be
+ superfluous and misplaced, and that the plan would be
+ unexceptionable but for the fatal power of regulating the times and
+ places of election. An objector in a large State exclaims loudly
+ against the unreasonable equality of representation in the Senate.
+ An objector in a small State is equally loud against the dangerous
+ inequality in the House of Representatives. From this quarter, we
+ are alarmed with the amazing expense, from the number of persons who
+ are to administer the new government. From another quarter, and
+ sometimes from the same quarter, on another occasion, the cry is
+ that the Congress will be but a shadow of a representation, and that
+ the government would be far less objectionable if the number and the
+ expense were doubled. A patriot in a State that does not import or
+ export, discerns insuperable objections against the power of direct
+ taxation. The patriotic adversary in a State of great exports and
+ imports, is not less dissatisfied that the whole burden of taxes may
+ be thrown on consumption. This politician discovers in the
+ Constitution a direct and irresistible tendency to monarchy; that
+ is equally sure it will end in aristocracy. Another is puzzled to
+ say which of these shapes it will ultimately assume, but sees
+ clearly it must be one or other of them; whilst a fourth is not
+ wanting, who with no less confidence affirms that the Constitution
+ is so far from having a bias towards either of these dangers, that
+ the weight on that side will not be sufficient to keep it upright
+ and firm against its opposite propensities. With another class of
+ adversaries to the Constitution the language is that the
+ legislative, executive, and judiciary departments are intermixed in
+ such a manner as to contradict all the ideas of regular government
+ and all the requisite precautions in favor of liberty. Whilst this
+ objection circulates in vague and general expressions, there are but
+ a few who lend their sanction to it. Let each one come forward with
+ his particular explanation, and scarce any two are exactly agreed
+ upon the subject. In the eyes of one the junction of the Senate
+ with the President in the responsible function of appointing to
+ offices, instead of vesting this executive power in the Executive
+ alone, is the vicious part of the organization. To another, the
+ exclusion of the House of Representatives, whose numbers alone could
+ be a due security against corruption and partiality in the exercise
+ of such a power, is equally obnoxious. With another, the admission
+ of the President into any share of a power which ever must be a
+ dangerous engine in the hands of the executive magistrate, is an
+ unpardonable violation of the maxims of republican jealousy. No
+ part of the arrangement, according to some, is more inadmissible
+ than the trial of impeachments by the Senate, which is alternately a
+ member both of the legislative and executive departments, when this
+ power so evidently belonged to the judiciary department. ``We
+ concur fully,'' reply others, ``in the objection to this part of the
+ plan, but we can never agree that a reference of impeachments to the
+ judiciary authority would be an amendment of the error. Our
+ principal dislike to the organization arises from the extensive
+ powers already lodged in that department.'' Even among the zealous
+ patrons of a council of state the most irreconcilable variance is
+ discovered concerning the mode in which it ought to be constituted.
+ The demand of one gentleman is, that the council should consist of
+ a small number to be appointed by the most numerous branch of the
+ legislature. Another would prefer a larger number, and considers it
+ as a fundamental condition that the appointment should be made by
+ the President himself.
+As it can give no umbrage to the writers against the plan of the
+ federal Constitution, let us suppose, that as they are the most
+ zealous, so they are also the most sagacious, of those who think the
+ late convention were unequal to the task assigned them, and that a
+ wiser and better plan might and ought to be substituted. Let us
+ further suppose that their country should concur, both in this
+ favorable opinion of their merits, and in their unfavorable opinion
+ of the convention; and should accordingly proceed to form them into
+ a second convention, with full powers, and for the express purpose
+ of revising and remoulding the work of the first. Were the
+ experiment to be seriously made, though it required some effort to
+ view it seriously even in fiction, I leave it to be decided by the
+ sample of opinions just exhibited, whether, with all their enmity to
+ their predecessors, they would, in any one point, depart so widely
+ from their example, as in the discord and ferment that would mark
+ their own deliberations; and whether the Constitution, now before
+ the public, would not stand as fair a chance for immortality, as
+ Lycurgus gave to that of Sparta, by making its change to depend on
+ his own return from exile and death, if it were to be immediately
+ adopted, and were to continue in force, not until a BETTER, but
+ until ANOTHER should be agreed upon by this new assembly of
+ lawgivers.
+It is a matter both of wonder and regret, that those who raise
+ so many objections against the new Constitution should never call to
+ mind the defects of that which is to be exchanged for it. It is not
+ necessary that the former should be perfect; it is sufficient that
+ the latter is more imperfect. No man would refuse to give brass for
+ silver or gold, because the latter had some alloy in it. No man
+ would refuse to quit a shattered and tottering habitation for a firm
+ and commodious building, because the latter had not a porch to it,
+ or because some of the rooms might be a little larger or smaller, or
+ the ceilings a little higher or lower than his fancy would have
+ planned them. But waiving illustrations of this sort, is it not
+ manifest that most of the capital objections urged against the new
+ system lie with tenfold weight against the existing Confederation?
+ Is an indefinite power to raise money dangerous in the hands of the
+ federal government? The present Congress can make requisitions to
+ any amount they please, and the States are constitutionally bound to
+ furnish them; they can emit bills of credit as long as they will
+ pay for the paper; they can borrow, both abroad and at home, as
+ long as a shilling will be lent. Is an indefinite power to raise
+ troops dangerous? The Confederation gives to Congress that power
+ also; and they have already begun to make use of it. Is it
+ improper and unsafe to intermix the different powers of government
+ in the same body of men? Congress, a single body of men, are the
+ sole depositary of all the federal powers. Is it particularly
+ dangerous to give the keys of the treasury, and the command of the
+ army, into the same hands? The Confederation places them both in
+ the hands of Congress. Is a bill of rights essential to liberty?
+ The Confederation has no bill of rights. Is it an objection
+ against the new Constitution, that it empowers the Senate, with the
+ concurrence of the Executive, to make treaties which are to be the
+ laws of the land? The existing Congress, without any such control,
+ can make treaties which they themselves have declared, and most of
+ the States have recognized, to be the supreme law of the land. Is
+ the importation of slaves permitted by the new Constitution for
+ twenty years? By the old it is permitted forever.
+I shall be told, that however dangerous this mixture of powers
+ may be in theory, it is rendered harmless by the dependence of
+ Congress on the State for the means of carrying them into practice;
+ that however large the mass of powers may be, it is in fact a
+ lifeless mass. Then, say I, in the first place, that the
+ Confederation is chargeable with the still greater folly of
+ declaring certain powers in the federal government to be absolutely
+ necessary, and at the same time rendering them absolutely nugatory;
+ and, in the next place, that if the Union is to continue, and no
+ better government be substituted, effective powers must either be
+ granted to, or assumed by, the existing Congress; in either of
+ which events, the contrast just stated will hold good. But this is
+ not all. Out of this lifeless mass has already grown an excrescent
+ power, which tends to realize all the dangers that can be
+ apprehended from a defective construction of the supreme government
+ of the Union. It is now no longer a point of speculation and hope,
+ that the Western territory is a mine of vast wealth to the United
+ States; and although it is not of such a nature as to extricate
+ them from their present distresses, or for some time to come, to
+ yield any regular supplies for the public expenses, yet must it
+ hereafter be able, under proper management, both to effect a gradual
+ discharge of the domestic debt, and to furnish, for a certain
+ period, liberal tributes to the federal treasury. A very large
+ proportion of this fund has been already surrendered by individual
+ States; and it may with reason be expected that the remaining
+ States will not persist in withholding similar proofs of their
+ equity and generosity. We may calculate, therefore, that a rich and
+ fertile country, of an area equal to the inhabited extent of the
+ United States, will soon become a national stock. Congress have
+ assumed the administration of this stock. They have begun to render
+ it productive. Congress have undertaken to do more: they have
+ proceeded to form new States, to erect temporary governments, to
+ appoint officers for them, and to prescribe the conditions on which
+ such States shall be admitted into the Confederacy. All this has
+ been done; and done without the least color of constitutional
+ authority. Yet no blame has been whispered; no alarm has been
+ sounded. A GREAT and INDEPENDENT fund of revenue is passing into
+ the hands of a SINGLE BODY of men, who can RAISE TROOPS to an
+ INDEFINITE NUMBER, and appropriate money to their support for an
+ INDEFINITE PERIOD OF TIME. And yet there are men, who have not only
+ been silent spectators of this prospect, but who are advocates for
+ the system which exhibits it; and, at the same time, urge against
+ the new system the objections which we have heard. Would they not
+ act with more consistency, in urging the establishment of the
+ latter, as no less necessary to guard the Union against the future
+ powers and resources of a body constructed like the existing
+ Congress, than to save it from the dangers threatened by the present
+ impotency of that Assembly?
+I mean not, by any thing here said, to throw censure on the
+ measures which have been pursued by Congress. I am sensible they
+ could not have done otherwise. The public interest, the necessity
+ of the case, imposed upon them the task of overleaping their
+ constitutional limits. But is not the fact an alarming proof of the
+ danger resulting from a government which does not possess regular
+ powers commensurate to its objects? A dissolution or usurpation is
+ the dreadful dilemma to which it is continually exposed.
+PUBLIUS.
+
+
+FEDERALIST No. 39
+
+The Conformity of the Plan to Republican Principles
+For the Independent Journal.
+
+MADISON
+
+To the People of the State of New York:
+THE last paper having concluded the observations which were
+ meant to introduce a candid survey of the plan of government
+ reported by the convention, we now proceed to the execution of that
+ part of our undertaking.
+The first question that offers itself is, whether the general
+ form and aspect of the government be strictly republican. It is
+ evident that no other form would be reconcilable with the genius of
+ the people of America; with the fundamental principles of the
+ Revolution; or with that honorable determination which animates
+ every votary of freedom, to rest all our political experiments on
+ the capacity of mankind for self-government. If the plan of the
+ convention, therefore, be found to depart from the republican
+ character, its advocates must abandon it as no longer defensible.
+What, then, are the distinctive characters of the republican
+ form? Were an answer to this question to be sought, not by
+ recurring to principles, but in the application of the term by
+ political writers, to the constitution of different States, no
+ satisfactory one would ever be found. Holland, in which no particle
+ of the supreme authority is derived from the people, has passed
+ almost universally under the denomination of a republic. The same
+ title has been bestowed on Venice, where absolute power over the
+ great body of the people is exercised, in the most absolute manner,
+ by a small body of hereditary nobles. Poland, which is a mixture of
+ aristocracy and of monarchy in their worst forms, has been dignified
+ with the same appellation. The government of England, which has one
+ republican branch only, combined with an hereditary aristocracy and
+ monarchy, has, with equal impropriety, been frequently placed on the
+ list of republics. These examples, which are nearly as dissimilar
+ to each other as to a genuine republic, show the extreme inaccuracy
+ with which the term has been used in political disquisitions.
+If we resort for a criterion to the different principles on
+ which different forms of government are established, we may define a
+ republic to be, or at least may bestow that name on, a government
+ which derives all its powers directly or indirectly from the great
+ body of the people, and is administered by persons holding their
+ offices during pleasure, for a limited period, or during good
+ behavior. It is ESSENTIAL to such a government that it be derived
+ from the great body of the society, not from an inconsiderable
+ proportion, or a favored class of it; otherwise a handful of
+ tyrannical nobles, exercising their oppressions by a delegation of
+ their powers, might aspire to the rank of republicans, and claim for
+ their government the honorable title of republic. It is SUFFICIENT
+ for such a government that the persons administering it be
+ appointed, either directly or indirectly, by the people; and that
+ they hold their appointments by either of the tenures just
+ specified; otherwise every government in the United States, as well
+ as every other popular government that has been or can be well
+ organized or well executed, would be degraded from the republican
+ character. According to the constitution of every State in the
+ Union, some or other of the officers of government are appointed
+ indirectly only by the people. According to most of them, the chief
+ magistrate himself is so appointed. And according to one, this mode
+ of appointment is extended to one of the co-ordinate branches of the
+ legislature. According to all the constitutions, also, the tenure
+ of the highest offices is extended to a definite period, and in many
+ instances, both within the legislative and executive departments, to
+ a period of years. According to the provisions of most of the
+ constitutions, again, as well as according to the most respectable
+ and received opinions on the subject, the members of the judiciary
+ department are to retain their offices by the firm tenure of good
+ behavior.
+On comparing the Constitution planned by the convention with the
+ standard here fixed, we perceive at once that it is, in the most
+ rigid sense, conformable to it. The House of Representatives, like
+ that of one branch at least of all the State legislatures, is
+ elected immediately by the great body of the people. The Senate,
+ like the present Congress, and the Senate of Maryland, derives its
+ appointment indirectly from the people. The President is indirectly
+ derived from the choice of the people, according to the example in
+ most of the States. Even the judges, with all other officers of the
+ Union, will, as in the several States, be the choice, though a
+ remote choice, of the people themselves, the duration of the
+ appointments is equally conformable to the republican standard, and
+ to the model of State constitutions The House of Representatives is
+ periodically elective, as in all the States; and for the period of
+ two years, as in the State of South Carolina. The Senate is
+ elective, for the period of six years; which is but one year more
+ than the period of the Senate of Maryland, and but two more than
+ that of the Senates of New York and Virginia. The President is to
+ continue in office for the period of four years; as in New York and
+ Delaware, the chief magistrate is elected for three years, and in
+ South Carolina for two years. In the other States the election is
+ annual. In several of the States, however, no constitutional
+ provision is made for the impeachment of the chief magistrate. And
+ in Delaware and Virginia he is not impeachable till out of office.
+ The President of the United States is impeachable at any time
+ during his continuance in office. The tenure by which the judges
+ are to hold their places, is, as it unquestionably ought to be, that
+ of good behavior. The tenure of the ministerial offices generally,
+ will be a subject of legal regulation, conformably to the reason of
+ the case and the example of the State constitutions.
+Could any further proof be required of the republican complexion
+ of this system, the most decisive one might be found in its absolute
+ prohibition of titles of nobility, both under the federal and the
+ State governments; and in its express guaranty of the republican
+ form to each of the latter.
+``But it was not sufficient,'' say the adversaries of the
+ proposed Constitution, ``for the convention to adhere to the
+ republican form. They ought, with equal care, to have preserved the
+ FEDERAL form, which regards the Union as a CONFEDERACY of sovereign
+ states; instead of which, they have framed a NATIONAL government,
+ which regards the Union as a CONSOLIDATION of the States.'' And it
+ is asked by what authority this bold and radical innovation was
+ undertaken? The handle which has been made of this objection
+ requires that it should be examined with some precision.
+Without inquiring into the accuracy of the distinction on which
+ the objection is founded, it will be necessary to a just estimate of
+ its force, first, to ascertain the real character of the government
+ in question; secondly, to inquire how far the convention were
+ authorized to propose such a government; and thirdly, how far the
+ duty they owed to their country could supply any defect of regular
+ authority.
+First. In order to ascertain the real character of the
+ government, it may be considered in relation to the foundation on
+ which it is to be established; to the sources from which its
+ ordinary powers are to be drawn; to the operation of those powers;
+ to the extent of them; and to the authority by which future
+ changes in the government are to be introduced.
+On examining the first relation, it appears, on one hand, that
+ the Constitution is to be founded on the assent and ratification of
+ the people of America, given by deputies elected for the special
+ purpose; but, on the other, that this assent and ratification is to
+ be given by the people, not as individuals composing one entire
+ nation, but as composing the distinct and independent States to
+ which they respectively belong. It is to be the assent and
+ ratification of the several States, derived from the supreme
+ authority in each State, the authority of the people themselves.
+ The act, therefore, establishing the Constitution, will not be a
+ NATIONAL, but a FEDERAL act.
+That it will be a federal and not a national act, as these terms
+ are understood by the objectors; the act of the people, as forming
+ so many independent States, not as forming one aggregate nation, is
+ obvious from this single consideration, that it is to result neither
+ from the decision of a MAJORITY of the people of the Union, nor from
+ that of a MAJORITY of the States. It must result from the UNANIMOUS
+ assent of the several States that are parties to it, differing no
+ otherwise from their ordinary assent than in its being expressed,
+ not by the legislative authority, but by that of the people
+ themselves. Were the people regarded in this transaction as forming
+ one nation, the will of the majority of the whole people of the
+ United States would bind the minority, in the same manner as the
+ majority in each State must bind the minority; and the will of the
+ majority must be determined either by a comparison of the individual
+ votes, or by considering the will of the majority of the States as
+ evidence of the will of a majority of the people of the United
+ States. Neither of these rules have been adopted. Each State, in
+ ratifying the Constitution, is considered as a sovereign body,
+ independent of all others, and only to be bound by its own voluntary
+ act. In this relation, then, the new Constitution will, if
+ established, be a FEDERAL, and not a NATIONAL constitution.
+The next relation is, to the sources from which the ordinary
+ powers of government are to be derived. The House of
+ Representatives will derive its powers from the people of America;
+ and the people will be represented in the same proportion, and on
+ the same principle, as they are in the legislature of a particular
+ State. So far the government is NATIONAL, not FEDERAL. The Senate,
+ on the other hand, will derive its powers from the States, as
+ political and coequal societies; and these will be represented on
+ the principle of equality in the Senate, as they now are in the
+ existing Congress. So far the government is FEDERAL, not NATIONAL.
+ The executive power will be derived from a very compound source.
+ The immediate election of the President is to be made by the States
+ in their political characters. The votes allotted to them are in a
+ compound ratio, which considers them partly as distinct and coequal
+ societies, partly as unequal members of the same society. The
+ eventual election, again, is to be made by that branch of the
+ legislature which consists of the national representatives; but in
+ this particular act they are to be thrown into the form of
+ individual delegations, from so many distinct and coequal bodies
+ politic. From this aspect of the government it appears to be of a
+ mixed character, presenting at least as many FEDERAL as NATIONAL
+ features.
+The difference between a federal and national government, as it
+ relates to the OPERATION OF THE GOVERNMENT, is supposed to consist
+ in this, that in the former the powers operate on the political
+ bodies composing the Confederacy, in their political capacities; in
+ the latter, on the individual citizens composing the nation, in
+ their individual capacities. On trying the Constitution by this
+ criterion, it falls under the NATIONAL, not the FEDERAL character;
+ though perhaps not so completely as has been understood. In
+ several cases, and particularly in the trial of controversies to
+ which States may be parties, they must be viewed and proceeded
+ against in their collective and political capacities only. So far
+ the national countenance of the government on this side seems to be
+ disfigured by a few federal features. But this blemish is perhaps
+ unavoidable in any plan; and the operation of the government on the
+ people, in their individual capacities, in its ordinary and most
+ essential proceedings, may, on the whole, designate it, in this
+ relation, a NATIONAL government.
+But if the government be national with regard to the OPERATION
+ of its powers, it changes its aspect again when we contemplate it in
+ relation to the EXTENT of its powers. The idea of a national
+ government involves in it, not only an authority over the individual
+ citizens, but an indefinite supremacy over all persons and things,
+ so far as they are objects of lawful government. Among a people
+ consolidated into one nation, this supremacy is completely vested in
+ the national legislature. Among communities united for particular
+ purposes, it is vested partly in the general and partly in the
+ municipal legislatures. In the former case, all local authorities
+ are subordinate to the supreme; and may be controlled, directed, or
+ abolished by it at pleasure. In the latter, the local or municipal
+ authorities form distinct and independent portions of the supremacy,
+ no more subject, within their respective spheres, to the general
+ authority, than the general authority is subject to them, within its
+ own sphere. In this relation, then, the proposed government cannot
+ be deemed a NATIONAL one; since its jurisdiction extends to certain
+ enumerated objects only, and leaves to the several States a
+ residuary and inviolable sovereignty over all other objects. It is
+ true that in controversies relating to the boundary between the two
+ jurisdictions, the tribunal which is ultimately to decide, is to be
+ established under the general government. But this does not change
+ the principle of the case. The decision is to be impartially made,
+ according to the rules of the Constitution; and all the usual and
+ most effectual precautions are taken to secure this impartiality.
+ Some such tribunal is clearly essential to prevent an appeal to the
+ sword and a dissolution of the compact; and that it ought to be
+ established under the general rather than under the local
+ governments, or, to speak more properly, that it could be safely
+ established under the first alone, is a position not likely to be
+ combated.
+If we try the Constitution by its last relation to the authority
+ by which amendments are to be made, we find it neither wholly
+ NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme
+ and ultimate authority would reside in the MAJORITY of the people of
+ the Union; and this authority would be competent at all times, like
+ that of a majority of every national society, to alter or abolish
+ its established government. Were it wholly federal, on the other
+ hand, the concurrence of each State in the Union would be essential
+ to every alteration that would be binding on all. The mode provided
+ by the plan of the convention is not founded on either of these
+ principles. In requiring more than a majority, and principles. In
+ requiring more than a majority, and particularly in computing the
+ proportion by STATES, not by CITIZENS, it departs from the NATIONAL
+ and advances towards the FEDERAL character; in rendering the
+ concurrence of less than the whole number of States sufficient, it
+ loses again the FEDERAL and partakes of the NATIONAL character.
+The proposed Constitution, therefore, is, in strictness, neither
+ a national nor a federal Constitution, but a composition of both.
+ In its foundation it is federal, not national; in the sources from
+ which the ordinary powers of the government are drawn, it is partly
+ federal and partly national; in the operation of these powers, it
+ is national, not federal; in the extent of them, again, it is
+ federal, not national; and, finally, in the authoritative mode of
+ introducing amendments, it is neither wholly federal nor wholly
+ national.
+PUBLIUS.
+
+
+FEDERALIST No. 40
+The Powers of the Convention to Form a Mixed Government Examined
+and Sustained
+From the New York Packet.
+Friday, January 18, 1788.
+
+MADISON
+
+To the People of the State of New York:
+THE SECOND point to be examined is, whether the convention were
+authorized to frame and propose this mixed Constitution. The
+powers of the convention ought, in strictness, to be determined
+by an inspection of the commissions given to the members by their
+respective constituents. As all of these, however, had reference,
+either to the recommendation from the meeting at Annapolis, in
+September, 1786, or to that from Congress, in February, 1787, it
+will be sufficient to recur to these particular acts. The act
+from Annapolis recommends the ``appointment of commissioners to
+take into consideration the situation of the United States; to
+devise SUCH FURTHER PROVISIONS as shall appear to them necessary
+to render the Constitution of the federal government ADEQUATE TO
+THE EXIGENCIES OF THE UNION; and to report such an act for that
+purpose, to the United States in Congress assembled, as when
+agreed to by them, and afterwards confirmed by the legislature of
+every State, will effectually provide for the same. ''The
+recommendatory act of Congress is in the words
+following:``WHEREAS, There is provision in the articles of
+Confederation and perpetual Union, for making alterations
+therein, by the assent of a Congress of the United States, and of
+the legislatures of the several States; and whereas experience
+hath evinced, that there are defects in the present
+Confederation; as a mean to remedy which, several of the States,
+and PARTICULARLY THE STATE OF NEW YORK, by express instructions
+to their delegates in Congress, have suggested a convention for
+the purposes expressed in the following resolution; and such
+convention appearing to be the most probable mean of establishing
+in these States A FIRM NATIONAL GOVERNMENT:``Resolved, That in
+the opinion of Congress it is expedient, that on the second
+Monday of May next a convention of delegates, who shall have been
+appointed by the several States, be held at Philadelphia, for the
+sole and express purpose OF REVISING THE ARTICLES OF
+CONFEDERATION, and reporting to Congress and the several
+legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall,
+when agreed to in Congress, and confirmed by the States, render
+the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT
+AND THE PRESERVATION OF THE UNION. ''From these two acts, it
+appears, 1st, that the object of the convention was to establish,
+in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this
+government was to be such as would be ADEQUATE TO THE EXIGENCIES
+OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these
+purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE
+ARTICLES OF CONFEDERATION, as it is expressed in the act of
+Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR
+NECESSARY, as it stands in the recommendatory act from Annapolis;
+4th, that the alterations and provisions were to be reported to
+Congress, and to the States, in order to be agreed to by the
+former and confirmed by the latter. From a comparison and fair
+construction of these several modes of expression, is to be
+deduced the authority under which the convention acted. They were
+to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF
+GOVERNMENT, and OF THE UNION; and to reduce the articles of
+Confederation into such form as to accomplish these purposes.
+There are two rules of construction, dictated by plain reason, as
+well as founded on legal axioms. The one is, that every part of
+the expression ought, if possible, to be allowed some meaning,
+and be made to conspire to some common end. The other is, that
+where the several parts cannot be made to coincide, the less
+important should give way to the more important part; the means
+should be sacrificed to the end, rather than the end to the
+means. Suppose, then, that the expressions defining the
+authority of the convention were irreconcilably at variance with
+each other; that a NATIONAL and ADEQUATE GOVERNMENT could not
+possibly, in the judgment of the convention, be affected by
+ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION;
+which part of the definition ought to have been embraced, and
+which rejected? Which was the more important, which the less
+important part? Which the end; which the means? Let the most
+scrupulous expositors of delegated powers; let the most
+inveterate objectors against those exercised by the convention,
+answer these questions. Let them declare, whether it was of most
+importance to the happiness of the people of America, that the
+articles of Confederation should be disregarded, and an adequate
+government be provided, and the Union preserved; or that an
+adequate government should be omitted, and the articles of
+Confederation preserved. Let them declare, whether the
+preservation of these articles was the end, for securing which a
+reform of the government was to be introduced as the means; or
+whether the establishment of a government, adequate to the
+national happiness, was the end at which these articles
+themselves originally aimed, and to which they ought, as
+insufficient means, to have been sacrificed. But is it necessary
+to suppose that these expressions are absolutely irreconcilable
+to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES
+OF THE CONFEDERATION could possibly mould them into a national
+and adequate government; into such a government as has been
+proposed by the convention? No stress, it is presumed, will, in
+this case, be laid on the TITLE; a change of that could never be
+deemed an exercise of ungranted power. ALTERATIONS in the body of
+the instrument are expressly authorized. NEW PROVISIONS therein
+are also expressly authorized. Here then is a power to change the
+title; to insert new articles; to alter old ones. Must it of
+necessity be admitted that this power is infringed, so long as a
+part of the old articles remain? Those who maintain the
+affirmative ought at least to mark the boundary between
+authorized and usurped innovations; between that degree of change
+which lies within the compass of ALTERATIONS AND FURTHER
+PROVISIONS, and that which amounts to a TRANSMUTATION of the
+government. Will it be said that the alterations ought not to
+have touched the substance of the Confederation? The States
+would never have appointed a convention with so much solemnity,
+nor described its objects with so much latitude, if some
+SUBSTANTIAL reform had not been in contemplation. Will it be said
+that the FUNDAMENTAL PRINCIPLES of the Confederation were not
+within the purview of the convention, and ought not to have been
+varied? I ask, What are these principles? Do they require that,
+in the establishment of the Constitution, the States should be
+regarded as distinct and independent sovereigns? They are so
+regarded by the Constitution proposed. Do they require that the
+members of the government should derive their appointment from
+the legislatures, not from the people of the States? One branch
+of the new government is to be appointed by these legislatures;
+and under the Confederation, the delegates to Congress MAY ALL
+be appointed immediately by the people, and in two States1 are
+actually so appointed. Do they require that the powers of the
+government should act on the States, and not immediately on
+individuals? In some instances, as has been shown, the powers of
+the new government will act on the States in their collective
+characters. In some instances, also, those of the existing
+government act immediately on individuals. In cases of capture;
+of piracy; of the post office; of coins, weights, and measures;
+of trade with the Indians; of claims under grants of land by
+different States; and, above all, in the case of trials by
+courts-marshal in the army and navy, by which death may be
+inflicted without the intervention of a jury, or even of a civil
+magistrate; in all these cases the powers of the Confederation
+operate immediately on the persons and interests of individual
+citizens. Do these fundamental principles require, particularly,
+that no tax should be levied without the intermediate agency of
+the States? The Confederation itself authorizes a direct tax, to
+a certain extent, on the post office. The power of coinage has
+been so construed by Congress as to levy a tribute immediately
+from that source also. But pretermitting these instances, was it
+not an acknowledged object of the convention and the universal
+expectation of the people, that the regulation of trade should be
+submitted to the general government in such a form as would
+render it an immediate source of general revenue? Had not
+Congress repeatedly recommended this measure as not inconsistent
+with the fundamental principles of the Confederation? Had not
+every State but one; had not New York herself, so far complied
+with the plan of Congress as to recognize the PRINCIPLE of the
+innovation? Do these principles, in fine, require that the
+powers of the general government should be limited, and that,
+beyond this limit, the States should be left in possession of
+their sovereignty and independence? We have seen that in the new
+government, as in the old, the general powers are limited; and
+that the States, in all unenumerated cases, are left in the
+enjoyment of their sovereign and independent jurisdiction. The
+truth is, that the great principles of the Constitution proposed
+by the convention may be considered less as absolutely new, than
+as the expansion of principles which are found in the articles of
+Confederation. The misfortune under the latter system has been,
+that these principles are so feeble and confined as to justify
+all the charges of inefficiency which have been urged against it,
+and to require a degree of enlargement which gives to the new
+system the aspect of an entire transformation of the old. In one
+particular it is admitted that the convention have departed from
+the tenor of their commission. Instead of reporting a plan
+requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES,
+they have reported a plan which is to be confirmed by the PEOPLE,
+and may be carried into effect by NINE STATES ONLY. It is worthy
+of remark that this objection, though the most plausible, has
+been the least urged in the publications which have swarmed
+against the convention. The forbearance can only have proceeded
+from an irresistible conviction of the absurdity of subjecting
+the fate of twelve States to the perverseness or corruption of a
+thirteenth; from the example of inflexible opposition given by a
+MAJORITY of one sixtieth of the people of America to a measure
+approved and called for by the voice of twelve States, comprising
+fifty-nine sixtieths of the people an example still fresh in the
+memory and indignation of every citizen who has felt for the
+wounded honor and prosperity of his country. As this objection,
+therefore, has been in a manner waived by those who have
+criticised the powers of the convention, I dismiss it without
+further observation. The THIRD point to be inquired into is, how
+far considerations of duty arising out of the case itself could
+have supplied any defect of regular authority. In the preceding
+inquiries the powers of the convention have been analyzed and
+tried with the same rigor, and by the same rules, as if they had
+been real and final powers for the establishment of a
+Constitution for the United States. We have seen in what manner
+they have borne the trial even on that supposition. It is time
+now to recollect that the powers were merely advisory and
+recommendatory; that they were so meant by the States, and so
+understood by the convention; and that the latter have
+accordingly planned and proposed a Constitution which is to be of
+no more consequence than the paper on which it is written, unless
+it be stamped with the approbation of those to whom it is
+addressed. This reflection places the subject in a point of view
+altogether different, and will enable us to judge with propriety
+of the course taken by the convention. Let us view the ground on
+which the convention stood. It may be collected from their
+proceedings, that they were deeply and unanimously impressed with
+the crisis, which had led their country almost with one voice to
+make so singular and solemn an experiment for correcting the
+errors of a system by which this crisis had been produced; that
+they were no less deeply and unanimously convinced that such a
+reform as they have proposed was absolutely necessary to effect
+the purposes of their appointment. It could not be unknown to
+them that the hopes and expectations of the great body of
+citizens, throughout this great empire, were turned with the
+keenest anxiety to the event of their deliberations. They had
+every reason to believe that the contrary sentiments agitated the
+minds and bosoms of every external and internal foe to the
+liberty and prosperity of the United States. They had seen in the
+origin and progress of the experiment, the alacrity with which
+the PROPOSITION, made by a single State (Virginia), towards a
+partial amendment of the Confederation, had been attended to and
+promoted. They had seen the LIBERTY ASSUMED by a VERY FEW
+deputies from a VERY FEW States, convened at Annapolis, of
+recommending a great and critical object, wholly foreign to their
+commission, not only justified by the public opinion, but
+actually carried into effect by twelve out of the thirteen
+States. They had seen, in a variety of instances, assumptions by
+Congress, not only of recommendatory, but of operative, powers,
+warranted, in the public estimation, by occasions and objects
+infinitely less urgent than those by which their conduct was to
+be governed. They must have reflected, that in all great changes
+of established governments, forms ought to give way to substance;
+that a rigid adherence in such cases to the former, would render
+nominal and nugatory the transcendent and precious right of the
+people to ``abolish or alter their governments as to them shall
+seem most likely to effect their safety and happiness,''2 since
+it is impossible for the people spontaneously and universally to
+move in concert towards their object; and it is therefore
+essential that such changes be instituted by some INFORMAL AND
+UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable
+citizen or number of citizens. They must have recollected that it
+was by this irregular and assumed privilege of proposing to the
+people plans for their safety and happiness, that the States
+were first united against the danger with which they were
+threatened by their ancient government; that committees and
+congresses were formed for concentrating their efforts and
+defending their rights; and that CONVENTIONS were ELECTED in THE
+SEVERAL STATES for establishing the constitutions under which
+they are now governed; nor could it have been forgotten that no
+little ill-timed scruples, no zeal for adhering to ordinary
+forms, were anywhere seen, except in those who wished to indulge,
+under these masks, their secret enmity to the substance contended
+for. They must have borne in mind, that as the plan to be framed
+and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
+disapprobation of this supreme authority would destroy it
+forever; its approbation blot out antecedent errors and
+irregularities. It might even have occurred to them, that where a
+disposition to cavil prevailed, their neglect to execute the
+degree of power vested in them, and still more their
+recommendation of any measure whatever, not warranted by their
+commission, would not less excite animadversion, than a
+recommendation at once of a measure fully commensurate to the
+national exigencies. Had the convention, under all these
+impressions, and in the midst of all these considerations,
+instead of exercising a manly confidence in their country, by
+whose confidence they had been so peculiarly distinguished, and
+of pointing out a system capable, in their judgment, of securing
+its happiness, taken the cold and sullen resolution of
+disappointing its ardent hopes, of sacrificing substance to
+forms, of committing the dearest interests of their country to
+the uncertainties of delay and the hazard of events, let me ask
+the man who can raise his mind to one elevated conception, who
+can awaken in his bosom one patriotic emotion, what judgment
+ought to have been pronounced by the impartial world, by the
+friends of mankind, by every virtuous citizen, on the conduct and
+character of this assembly? Or if there be a man whose
+propensity to condemn is susceptible of no control, let me then
+ask what sentence he has in reserve for the twelve States who
+USURPED THE POWER of sending deputies to the convention, a body
+utterly unknown to their constitutions; for Congress, who
+recommended the appointment of this body, equally unknown to the
+Confederation; and for the State of New York, in particular,
+which first urged and then complied with this unauthorized
+interposition? But that the objectors may be disarmed of every
+pretext, it shall be granted for a moment that the convention
+were neither authorized by their commission, nor justified by
+circumstances in proposing a Constitution for their country: does
+it follow that the Constitution ought, for that reason alone, to
+be rejected? If, according to the noble precept, it be lawful to
+accept good advice even from an enemy, shall we set the ignoble
+example of refusing such advice even when it is offered by our
+friends? The prudent inquiry, in all cases, ought surely to be,
+not so much FROM WHOM the advice comes, as whether the advice be
+GOOD. The sum of what has been here advanced and proved is, that
+the charge against the convention of exceeding their powers,
+except in one instance little urged by the objectors, has no
+foundation to support it; that if they had exceeded their powers,
+they were not only warranted, but required, as the confidential
+servants of their country, by the circumstances in which they
+were placed, to exercise the liberty which they assume; and that
+finally, if they had violated both their powers and their
+obligations, in proposing a Constitution, this ought nevertheless
+to be embraced, if it be calculated to accomplish the views and
+happiness of the people of America. How far this character is due
+to the Constitution, is the subject under investigation. PUBLIUS.
+
+Connecticut and Rhode Island. Declaration of Independence.
+
+
+FEDERALIST No. 41
+General View of the Powers Conferred by The Constitution
+For the Independent Journal.
+
+MADISON
+
+To the People of the State of New York:
+THE Constitution proposed by the convention may be considered
+under two general points of view. The FIRST relates to the sum or
+quantity of power which it vests in the government, including
+the restraints imposed on the States. The SECOND, to the
+particular structure of the government, and the distribution of
+this power among its several branches. Under the FIRST view of
+the subject, two important questions arise: 1. Whether any part
+of the powers transferred to the general government be
+unnecessary or improper? 2. Whether the entire mass of them be
+dangerous to the portion of jurisdiction left in the several
+States? Is the aggregate power of the general government greater
+than ought to have been vested in it? This is the FIRST
+question. It cannot have escaped those who have attended with
+candor to the arguments employed against the extensive powers of
+the government, that the authors of them have very little
+considered how far these powers were necessary means of attaining
+a necessary end. They have chosen rather to dwell on the
+inconveniences which must be unavoidably blended with all
+political advantages; and on the possible abuses which must be
+incident to every power or trust, of which a beneficial use can
+be made. This method of handling the subject cannot impose on the
+good sense of the people of America. It may display the subtlety
+of the writer; it may open a boundless field for rhetoric and
+declamation; it may inflame the passions of the unthinking, and
+may confirm the prejudices of the misthinking: but cool and
+candid people will at once reflect, that the purest of human
+blessings must have a portion of alloy in them; that the choice
+must always be made, if not of the lesser evil, at least of the
+GREATER, not the PERFECT, good; and that in every political
+institution, a power to advance the public happiness involves a
+discretion which may be misapplied and abused. They will see,
+therefore, that in all cases where power is to be conferred, the
+point first to be decided is, whether such a power be necessary
+to the public good; as the next will be, in case of an
+affirmative decision, to guard as effectually as possible
+against a perversion of the power to the public detriment. That
+we may form a correct judgment on this subject, it will be proper
+to review the several powers conferred on the government of the
+Union; and that this may be the more conveniently done they may
+be reduced into different classes as they relate to the following
+different objects: 1. Security against foreign danger; 2.
+Regulation of the intercourse with foreign nations; 3.
+Maintenance of harmony and proper intercourse among the States;
+4. Certain miscellaneous objects of general utility; 5.
+Restraint of the States from certain injurious acts; 6.
+Provisions for giving due efficacy to all these powers. The
+powers falling within the FIRST class are those of declaring war
+and granting letters of marque; of providing armies and fleets;
+of regulating and calling forth the militia; of levying and
+borrowing money. Security against foreign danger is one of the
+primitive objects of civil society. It is an avowed and essential
+object of the American Union. The powers requisite for attaining
+it must be effectually confided to the federal councils. Is the
+power of declaring war necessary? No man will answer this
+question in the negative. It would be superfluous, therefore, to
+enter into a proof of the affirmative. The existing Confederation
+establishes this power in the most ample form. Is the power of
+raising armies and equipping fleets necessary? This is involved
+in the foregoing power. It is involved in the power of
+self-defense. But was it necessary to give an INDEFINITE POWER
+of raising TROOPS, as well as providing fleets; and of
+maintaining both in PEACE, as well as in war? The answer to these
+questions has been too far anticipated in another place to admit
+an extensive discussion of them in this place. The answer indeed
+seems to be so obvious and conclusive as scarcely to justify such
+a discussion in any place. With what color of propriety could the
+force necessary for defense be limited by those who cannot limit
+the force of offense? If a federal Constitution could chain the
+ambition or set bounds to the exertions of all other nations,
+then indeed might it prudently chain the discretion of its own
+government, and set bounds to the exertions for its own safety.
+How could a readiness for war in time of peace be safely
+prohibited, unless we could prohibit, in like manner, the
+preparations and establishments of every hostile nation? The
+means of security can only be regulated by the means and the
+danger of attack. They will, in fact, be ever determined by these
+rules, and by no others. It is in vain to oppose constitutional
+barriers to the impulse of self-preservation. It is worse than in
+vain; because it plants in the Constitution itself necessary
+usurpations of power, every precedent of which is a germ of
+unnecessary and multiplied repetitions. If one nation maintains
+constantly a disciplined army, ready for the service of ambition
+or revenge, it obliges the most pacific nations who may be within
+the reach of its enterprises to take corresponding precautions.
+The fifteenth century was the unhappy epoch of military
+establishments in the time of peace. They were introduced by
+Charles VII. of France. All Europe has followed, or been forced
+into, the example. Had the example not been followed by other
+nations, all Europe must long ago have worn the chains of a
+universal monarch. Were every nation except France now to disband
+its peace establishments, the same event might follow. The
+veteran legions of Rome were an overmatch for the undisciplined
+valor of all other nations and rendered her the mistress of the
+world. Not the less true is it, that the liberties of Rome
+proved the final victim to her military triumphs; and that the
+liberties of Europe, as far as they ever existed, have, with few
+exceptions, been the price of her military establishments. A
+standing force, therefore, is a dangerous, at the same time that
+it may be a necessary, provision. On the smallest scale it has
+its inconveniences. On an extensive scale its consequences may be
+fatal. On any scale it is an object of laudable circumspection
+and precaution. A wise nation will combine all these
+considerations; and, whilst it does not rashly preclude itself
+from any resource which may become essential to its safety, will
+exert all its prudence in diminishing both the necessity and the
+danger of resorting to one which may be inauspicious to its
+liberties. The clearest marks of this prudence are stamped on
+the proposed Constitution. The Union itself, which it cements and
+secures, destroys every pretext for a military establishment
+which could be dangerous. America united, with a handful of
+troops, or without a single soldier, exhibits a more forbidding
+posture to foreign ambition than America disunited, with a
+hundred thousand veterans ready for combat. It was remarked, on a
+former occasion, that the want of this pretext had saved the
+liberties of one nation in Europe. Being rendered by her insular
+situation and her maritime resources impregnable to the armies of
+her neighbors, the rulers of Great Britain have never been able,
+by real or artificial dangers, to cheat the public into an
+extensive peace establishment. The distance of the United States
+from the powerful nations of the world gives them the same happy
+security. A dangerous establishment can never be necessary or
+plausible, so long as they continue a united people. But let it
+never, for a moment, be forgotten that they are indebted for this
+advantage to the Union alone. The moment of its dissolution will
+be the date of a new order of things. The fears of the weaker, or
+the ambition of the stronger States, or Confederacies, will set
+the same example in the New, as Charles VII. did in the Old
+World. The example will be followed here from the same motives
+which produced universal imitation there. Instead of deriving
+from our situation the precious advantage which Great Britain has
+derived from hers, the face of America will be but a copy of that
+of the continent of Europe. It will present liberty everywhere
+crushed between standing armies and perpetual taxes. The fortunes
+of disunited America will be even more disastrous than those of
+Europe. The sources of evil in the latter are confined to her own
+limits. No superior powers of another quarter of the globe
+intrigue among her rival nations, inflame their mutual
+animosities, and render them the instruments of foreign ambition,
+jealousy, and revenge. In America the miseries springing from her
+internal jealousies, contentions, and wars, would form a part
+only of her lot. A plentiful addition of evils would have their
+source in that relation in which Europe stands to this quarter of
+the earth, and which no other quarter of the earth bears to
+Europe. This picture of the consequences of disunion cannot be
+too highly colored, or too often exhibited. Every man who loves
+peace, every man who loves his country, every man who loves
+liberty, ought to have it ever before his eyes, that he may
+cherish in his heart a due attachment to the Union of America,
+and be able to set a due value on the means of preserving it.
+Next to the effectual establishment of the Union, the best
+possible precaution against danger from standing armies is a
+limitation of the term for which revenue may be appropriated to
+their support. This precaution the Constitution has prudently
+added. I will not repeat here the observations which I flatter
+myself have placed this subject in a just and satisfactory
+light. But it may not be improper to take notice of an argument
+against this part of the Constitution, which has been drawn from
+the policy and practice of Great Britain. It is said that the
+continuance of an army in that kingdom requires an annual vote of
+the legislature; whereas the American Constitution has lengthened
+this critical period to two years. This is the form in which the
+comparison is usually stated to the public: but is it a just
+form? Is it a fair comparison? Does the British Constitution
+restrain the parliamentary discretion to one year? Does the
+American impose on the Congress appropriations for two years? On
+the contrary, it cannot be unknown to the authors of the fallacy
+themselves, that the British Constitution fixes no limit whatever
+to the discretion of the legislature, and that the American ties
+down the legislature to two years, as the longest admissible
+term. Had the argument from the British example been truly
+stated, it would have stood thus: The term for which supplies
+may be appropriated to the army establishment, though unlimited
+by the British Constitution, has nevertheless, in practice, been
+limited by parliamentary discretion to a single year. Now, if in
+Great Britain, where the House of Commons is elected for seven
+years; where so great a proportion of the members are elected by
+so small a proportion of the people; where the electors are so
+corrupted by the representatives, and the representatives so
+corrupted by the Crown, the representative body can possess a
+power to make appropriations to the army for an indefinite term,
+without desiring, or without daring, to extend the term beyond a
+single year, ought not suspicion herself to blush, in pretending
+that the representatives of the United States, elected FREELY by
+the WHOLE BODY of the people, every SECOND YEAR, cannot be safely
+intrusted with the discretion over such appropriations, expressly
+limited to the short period of TWO YEARS? A bad cause seldom
+fails to betray itself. Of this truth, the management of the
+opposition to the federal government is an unvaried
+exemplification. But among all the blunders which have been
+committed, none is more striking than the attempt to enlist on
+that side the prudent jealousy entertained by the people, of
+standing armies. The attempt has awakened fully the public
+attention to that important subject; and has led to
+investigations which must terminate in a thorough and universal
+conviction, not only that the constitution has provided the most
+effectual guards against danger from that quarter, but that
+nothing short of a Constitution fully adequate to the national
+defense and the preservation of the Union, can save America from
+as many standing armies as it may be split into States or
+Confederacies, and from such a progressive augmentation, of these
+establishments in each, as will render them as burdensome to the
+properties and ominous to the liberties of the people, as any
+establishment that can become necessary, under a united and
+efficient government, must be tolerable to the former and safe to
+the latter. The palpable necessity of the power to provide and
+maintain a navy has protected that part of the Constitution
+against a spirit of censure, which has spared few other parts. It
+must, indeed, be numbered among the greatest blessings of
+America, that as her Union will be the only source of her
+maritime strength, so this will be a principal source of her
+security against danger from abroad. In this respect our
+situation bears another likeness to the insular advantage of
+Great Britain. The batteries most capable of repelling foreign
+enterprises on our safety, are happily such as can never be
+turned by a perfidious government against our liberties. The
+inhabitants of the Atlantic frontier are all of them deeply
+interested in this provision for naval protection, and if they
+have hitherto been suffered to sleep quietly in their beds; if
+their property has remained safe against the predatory spirit of
+licentious adventurers; if their maritime towns have not yet
+been compelled to ransom themselves from the terrors of a
+conflagration, by yielding to the exactions of daring and sudden
+invaders, these instances of good fortune are not to be ascribed
+to the capacity of the existing government for the protection of
+those from whom it claims allegiance, but to causes that are
+fugitive and fallacious. If we except perhaps Virginia and
+Maryland, which are peculiarly vulnerable on their eastern
+frontiers, no part of the Union ought to feel more anxiety on
+this subject than New York. Her seacoast is extensive. A very
+important district of the State is an island. The State itself is
+penetrated by a large navigable river for more than fifty
+leagues. The great emporium of its commerce, the great reservoir
+of its wealth, lies every moment at the mercy of events, and may
+almost be regarded as a hostage for ignominious compliances with
+the dictates of a foreign enemy, or even with the rapacious
+demands of pirates and barbarians. Should a war be the result of
+the precarious situation of European affairs, and all the unruly
+passions attending it be let loose on the ocean, our escape from
+insults and depredations, not only on that element, but every
+part of the other bordering on it, will be truly miraculous. In
+the present condition of America, the States more immediately
+exposed to these calamities have nothing to hope from the phantom
+of a general government which now exists; and if their single
+resources were equal to the task of fortifying themselves against
+the danger, the object to be protected would be almost consumed
+by the means of protecting them. The power of regulating and
+calling forth the militia has been already sufficiently
+vindicated and explained. The power of levying and borrowing
+money, being the sinew of that which is to be exerted in the
+national defense, is properly thrown into the same class with
+it. This power, also, has been examined already with much
+attention, and has, I trust, been clearly shown to be necessary,
+both in the extent and form given to it by the Constitution. I
+will address one additional reflection only to those who contend
+that the power ought to have been restrained to external
+taxation by which they mean, taxes on articles imported from
+other countries. It cannot be doubted that this will always be a
+valuable source of revenue; that for a considerable time it must
+be a principal source; that at this moment it is an essential
+one. But we may form very mistaken ideas on this subject, if we
+do not call to mind in our calculations, that the extent of
+revenue drawn from foreign commerce must vary with the
+variations, both in the extent and the kind of imports; and that
+these variations do not correspond with the progress of
+population, which must be the general measure of the public
+wants. As long as agriculture continues the sole field of labor,
+the importation of manufactures must increase as the consumers
+multiply. As soon as domestic manufactures are begun by the hands
+not called for by agriculture, the imported manufactures will
+decrease as the numbers of people increase. In a more remote
+stage, the imports may consist in a considerable part of raw
+materials, which will be wrought into articles for exportation,
+and will, therefore, require rather the encouragement of
+bounties, than to be loaded with discouraging duties. A system of
+government, meant for duration, ought to contemplate these
+revolutions, and be able to accommodate itself to them. Some,
+who have not denied the necessity of the power of taxation, have
+grounded a very fierce attack against the Constitution, on the
+language in which it is defined. It has been urged and echoed,
+that the power ``to lay and collect taxes, duties, imposts, and
+excises, to pay the debts, and provide for the common defense and
+general welfare of the United States,'' amounts to an unlimited
+commission to exercise every power which may be alleged to be
+necessary for the common defense or general welfare. No stronger
+proof could be given of the distress under which these writers
+labor for objections, than their stooping to such a
+misconstruction. Had no other enumeration or definition of the
+powers of the Congress been found in the Constitution, than the
+general expressions just cited, the authors of the objection
+might have had some color for it; though it would have been
+difficult to find a reason for so awkward a form of describing an
+authority to legislate in all possible cases. A power to destroy
+the freedom of the press, the trial by jury, or even to regulate
+the course of descents, or the forms of conveyances, must be very
+singularly expressed by the terms ``to raise money for the
+general welfare. ''But what color can the objection have, when a
+specification of the objects alluded to by these general terms
+immediately follows, and is not even separated by a longer pause
+than a semicolon? If the different parts of the same instrument
+ought to be so expounded, as to give meaning to every part which
+will bear it, shall one part of the same sentence be excluded
+altogether from a share in the meaning; and shall the more
+doubtful and indefinite terms be retained in their full extent,
+and the clear and precise expressions be denied any signification
+whatsoever? For what purpose could the enumeration of particular
+powers be inserted, if these and all others were meant to be
+included in the preceding general power? Nothing is more natural
+nor common than first to use a general phrase, and then to
+explain and qualify it by a recital of particulars. But the idea
+of an enumeration of particulars which neither explain nor
+qualify the general meaning, and can have no other effect than to
+confound and mislead, is an absurdity, which, as we are reduced
+to the dilemma of charging either on the authors of the objection
+or on the authors of the Constitution, we must take the liberty
+of supposing, had not its origin with the latter. The objection
+here is the more extraordinary, as it appears that the language
+used by the convention is a copy from the articles of
+Confederation. The objects of the Union among the States, as
+described in article third, are ``their common defense, security
+of their liberties, and mutual and general welfare. '' The terms
+of article eighth are still more identical: ``All charges of war
+and all other expenses that shall be incurred for the common
+defense or general welfare, and allowed by the United States in
+Congress, shall be defrayed out of a common treasury,'' etc. A
+similar language again occurs in article ninth. Construe either
+of these articles by the rules which would justify the
+construction put on the new Constitution, and they vest in the
+existing Congress a power to legislate in all cases whatsoever.
+But what would have been thought of that assembly, if, attaching
+themselves to these general expressions, and disregarding the
+specifications which ascertain and limit their import, they had
+exercised an unlimited power of providing for the common defense
+and general welfare? I appeal to the objectors themselves,
+whether they would in that case have employed the same reasoning
+in justification of Congress as they now make use of against the
+convention. How difficult it is for error to escape its own
+condemnation! PUBLIUS.
+
+
+FEDERALIST No. 42
+The Powers Conferred by the Constitution Further Considered
+From the New York Packet. Tuesday, January 22, 1788.
+
+MADISON
+
+To the People of the State of New York:
+THE SECOND class of powers, lodged in the general government,
+consists of those which regulate the intercourse with foreign
+nations, to wit: to make treaties; to send and receive
+ambassadors, other public ministers, and consuls; to define and
+punish piracies and felonies committed on the high seas, and
+offenses against the law of nations; to regulate foreign
+commerce, including a power to prohibit, after the year 1808, the
+importation of slaves, and to lay an intermediate duty of ten
+dollars per head, as a discouragement to such importations. This
+class of powers forms an obvious and essential branch of the
+federal administration. If we are to be one nation in any
+respect, it clearly ought to be in respect to other nations. The
+powers to make treaties and to send and receive ambassadors,
+speak their own propriety. Both of them are comprised in the
+articles of Confederation, with this difference only, that the
+former is disembarrassed, by the plan of the convention, of an
+exception, under which treaties might be substantially frustrated
+by regulations of the States; and that a power of appointing and
+receiving ``other public ministers and consuls,'' is expressly
+and very properly added to the former provision concerning
+ambassadors. The term ambassador, if taken strictly, as seems to
+be required by the second of the articles of Confederation,
+comprehends the highest grade only of public ministers, and
+excludes the grades which the United States will be most likely
+to prefer, where foreign embassies may be necessary. And under no
+latitude of construction will the term comprehend consuls. Yet it
+has been found expedient, and has been the practice of Congress,
+to employ the inferior grades of public ministers, and to send
+and receive consuls. It is true, that where treaties of commerce
+stipulate for the mutual appointment of consuls, whose functions
+are connected with commerce, the admission of foreign consuls may
+fall within the power of making commercial treaties; and that
+where no such treaties exist, the mission of American consuls
+into foreign countries may PERHAPS be covered under the
+authority, given by the ninth article of the Confederation, to
+appoint all such civil officers as may be necessary for managing
+the general affairs of the United States. But the admission of
+consuls into the United States, where no previous treaty has
+stipulated it, seems to have been nowhere provided for. A supply
+of the omission is one of the lesser instances in which the
+convention have improved on the model before them. But the most
+minute provisions become important when they tend to obviate the
+necessity or the pretext for gradual and unobserved usurpations
+of power. A list of the cases in which Congress have been
+betrayed, or forced by the defects of the Confederation, into
+violations of their chartered authorities, would not a little
+surprise those who have paid no attention to the subject; and
+would be no inconsiderable argument in favor of the new
+Constitution, which seems to have provided no less studiously for
+the lesser, than the more obvious and striking defects of the
+old. The power to define and punish piracies and felonies
+committed on the high seas, and offenses against the law of
+nations, belongs with equal propriety to the general government,
+and is a still greater improvement on the articles of
+Confederation. These articles contain no provision for the case
+of offenses against the law of nations; and consequently leave
+it in the power of any indiscreet member to embroil the
+Confederacy with foreign nations. The provision of the federal
+articles on the subject of piracies and felonies extends no
+further than to the establishment of courts for the trial of
+these offenses. The definition of piracies might, perhaps,
+without inconveniency, be left to the law of nations; though a
+legislative definition of them is found in most municipal codes.
+A definition of felonies on the high seas is evidently
+requisite. Felony is a term of loose signification, even in the
+common law of England; and of various import in the statute law
+of that kingdom. But neither the common nor the statute law of
+that, or of any other nation, ought to be a standard for the
+proceedings of this, unless previously made its own by
+legislative adoption. The meaning of the term, as defined in the
+codes of the several States, would be as impracticable as the
+former would be a dishonorable and illegitimate guide. It is not
+precisely the same in any two of the States; and varies in each
+with every revision of its criminal laws. For the sake of
+certainty and uniformity, therefore, the power of defining
+felonies in this case was in every respect necessary and proper.
+The regulation of foreign commerce, having fallen within several
+views which have been taken of this subject, has been too fully
+discussed to need additional proofs here of its being properly
+submitted to the federal administration. It were doubtless to be
+wished, that the power of prohibiting the importation of slaves
+had not been postponed until the year 1808, or rather that it had
+been suffered to have immediate operation. But it is not
+difficult to account, either for this restriction on the general
+government, or for the manner in which the whole clause is
+expressed. It ought to be considered as a great point gained in
+favor of humanity, that a period of twenty years may terminate
+forever, within these States, a traffic which has so long and so
+loudly upbraided the barbarism of modern policy; that within that
+period, it will receive a considerable discouragement from the
+federal government, and may be totally abolished, by a
+concurrence of the few States which continue the unnatural
+traffic, in the prohibitory example which has been given by so
+great a majority of the Union. Happy would it be for the
+unfortunate Africans, if an equal prospect lay before them of
+being redeemed from the oppressions of their European brethren!
+Attempts have been made to pervert this clause into an objection
+against the Constitution, by representing it on one side as a
+criminal toleration of an illicit practice, and on another as
+calculated to prevent voluntary and beneficial emigrations from
+Europe to America. I mention these misconstructions, not with a
+view to give them an answer, for they deserve none, but as
+specimens of the manner and spirit in which some have thought fit
+to conduct their opposition to the proposed government. The
+powers included in the THIRD class are those which provide for
+the harmony and proper intercourse among the States. Under this
+head might be included the particular restraints imposed on the
+authority of the States, and certain powers of the judicial
+department; but the former are reserved for a distinct class, and
+the latter will be particularly examined when we arrive at the
+structure and organization of the government. I shall confine
+myself to a cursory review of the remaining powers comprehended
+under this third description, to wit: to regulate commerce among
+the several States and the Indian tribes; to coin money, regulate
+the value thereof, and of foreign coin; to provide for the
+punishment of counterfeiting the current coin and secureties of
+the United States; to fix the standard of weights and measures;
+to establish a uniform rule of naturalization, and uniform laws
+of bankruptcy, to prescribe the manner in which the public acts,
+records, and judicial proceedings of each State shall be proved,
+and the effect they shall have in other States; and to establish
+post offices and post roads. The defect of power in the existing
+Confederacy to regulate the commerce between its several members,
+is in the number of those which have been clearly pointed out by
+experience. To the proofs and remarks which former papers have
+brought into view on this subject, it may be added that without
+this supplemental provision, the great and essential power of
+regulating foreign commerce would have been incomplete and
+ineffectual. A very material object of this power was the relief
+of the States which import and export through other States, from
+the improper contributions levied on them by the latter. Were
+these at liberty to regulate the trade between State and State,
+it must be foreseen that ways would be found out to load the
+articles of import and export, during the passage through their
+jurisdiction, with duties which would fall on the makers of the
+latter and the consumers of the former. We may be assured by past
+experience, that such a practice would be introduced by future
+contrivances; and both by that and a common knowledge of human
+affairs, that it would nourish unceasing animosities, and not
+improbably terminate in serious interruptions of the public
+tranquillity. To those who do not view the question through the
+medium of passion or of interest, the desire of the commercial
+States to collect, in any form, an indirect revenue from their
+uncommercial neighbors, must appear not less impolitic than it is
+unfair; since it would stimulate the injured party, by resentment
+as well as interest, to resort to less convenient channels for
+their foreign trade. But the mild voice of reason, pleading the
+cause of an enlarged and permanent interest, is but too often
+drowned, before public bodies as well as individuals, by the
+clamors of an impatient avidity for immediate and immoderate
+gain. The necessity of a superintending authority over the
+reciprocal trade of confederated States, has been illustrated by
+other examples as well as our own. In Switzerland, where the
+Union is so very slight, each canton is obliged to allow to
+merchandises a passage through its jurisdiction into other
+cantons, without an augmentation of the tolls. In Germany it is a
+law of the empire, that the princes and states shall not lay
+tolls or customs on bridges, rivers, or passages, without the
+consent of the emperor and the diet; though it appears from a
+quotation in an antecedent paper, that the practice in this, as
+in many other instances in that confederacy, has not followed the
+law, and has produced there the mischiefs which have been
+foreseen here. Among the restraints imposed by the Union of the
+Netherlands on its members, one is, that they shall not establish
+imposts disadvantageous to their neighbors, without the general
+permission. The regulation of commerce with the Indian tribes is
+very properly unfettered from two limitations in the articles of
+Confederation, which render the provision obscure and
+contradictory. The power is there restrained to Indians, not
+members of any of the States, and is not to violate or infringe
+the legislative right of any State within its own limits. What
+description of Indians are to be deemed members of a State, is
+not yet settled, and has been a question of frequent perplexity
+and contention in the federal councils. And how the trade with
+Indians, though not members of a State, yet residing within its
+legislative jurisdiction, can be regulated by an external
+authority, without so far intruding on the internal rights of
+legislation, is absolutely incomprehensible. This is not the only
+case in which the articles of Confederation have inconsiderately
+endeavored to accomplish impossibilities; to reconcile a partial
+sovereignty in the Union, with complete sovereignty in the
+States; to subvert a mathematical axiom, by taking away a part,
+and letting the whole remain. All that need be remarked on the
+power to coin money, regulate the value thereof, and of foreign
+coin, is, that by providing for this last case, the Constitution
+has supplied a material omission in the articles of
+Confederation. The authority of the existing Congress is
+restrained to the regulation of coin STRUCK by their own
+authority, or that of the respective States. It must be seen at
+once that the proposed uniformity in the VALUE of the current
+coin might be destroyed by subjecting that of foreign coin to the
+different regulations of the different States. The punishment of
+counterfeiting the public securities, as well as the current
+coin, is submitted of course to that authority which is to secure
+the value of both. The regulation of weights and measures is
+transferred from the articles of Confederation, and is founded on
+like considerations with the preceding power of regulating coin.
+The dissimilarity in the rules of naturalization has long been
+remarked as a fault in our system, and as laying a foundation for
+intricate and delicate questions. In the fourth article of the
+Confederation, it is declared ``that the FREE INHABITANTS of each
+of these States, paupers, vagabonds, and fugitives from justice,
+excepted, shall be entitled to all privileges and immunities of
+FREE CITIZENS in the several States; and THE PEOPLE of each State
+shall, in every other, enjoy all the privileges of trade and
+commerce,'' etc. There is a confusion of language here, which is
+remarkable. Why the terms FREE INHABITANTS are used in one part
+of the article, FREE CITIZENS in another, and PEOPLE in another;
+or what was meant by superadding to ``all privileges and
+immunities of free citizens,'' ``all the privileges of trade and
+commerce,''
+cannot easily be determined. It seems to be a construction
+scarcely avoidable, however, that those who come under the
+denomination of FREE INHABITANTS of a State, although not
+citizens of such State, are entitled, in every other State, to
+all the privileges of FREE CITIZENS of the latter; that is, to
+greater privileges than they may be entitled to in their own
+State: so that it may be in the power of a particular State, or
+rather every State is laid under a necessity, not only to confer
+the rights of citizenship in other States upon any whom it may
+admit to such rights within itself, but upon any whom it may
+allow to become inhabitants within its jurisdiction. But were an
+exposition of the term ``inhabitants'' to be admitted which
+would confine the stipulated privileges to citizens alone, the
+difficulty is diminished only, not removed. The very improper
+power would still be retained by each State, of naturalizing
+aliens in every other State. In one State, residence for a short
+term confirms all the rights of citizenship: in another,
+qualifications of greater importance are required. An alien,
+therefore, legally incapacitated for certain rights in the
+latter, may, by previous residence only in the former, elude his
+incapacity; and thus the law of one State be preposterously
+rendered paramount to the law of another, within the jurisdiction
+of the other. We owe it to mere casualty, that very serious
+embarrassments on this subject have been hitherto escaped. By the
+laws of several States, certain descriptions of aliens, who had
+rendered themselves obnoxious, were laid under interdicts
+inconsistent not only with the rights of citizenship but with the
+privilege of residence. What would have been the consequence, if
+such persons, by residence or otherwise, had acquired the
+character of citizens under the laws of another State, and then
+asserted their rights as such, both to residence and citizenship,
+within the State proscribing them? Whatever the legal
+consequences might have been, other consequences would probably
+have resulted, of too serious a nature not to be provided
+against. The new Constitution has accordingly, with great
+propriety, made provision against them, and all others proceeding
+from the defect of the Confederation on this head, by authorizing
+the general government to establish a uniform rule of
+naturalization throughout the United States. The power of
+establishing uniform laws of bankruptcy is so intimately
+connected with the regulation of commerce, and will prevent so
+many frauds where the parties or their property may lie or be
+removed into different States, that the expediency of it seems
+not likely to be drawn into question. The power of prescribing
+by general laws, the manner in which the public acts, records and
+judicial proceedings of each State shall be proved, and the
+effect they shall have in other States, is an evident and
+valuable improvement on the clause relating to this subject in
+the articles of Confederation. The meaning of the latter is
+extremely indeterminate, and can be of little importance under
+any interpretation which it will bear. The power here established
+may be rendered a very convenient instrument of justice, and be
+particularly beneficial on the borders of contiguous States,
+where the effects liable to justice may be suddenly and secretly
+translated, in any stage of the process, within a foreign
+jurisdiction. The power of establishing post roads must, in
+every view, be a harmless power, and may, perhaps, by judicious
+management, become productive of great public conveniency.
+Nothing which tends to facilitate the intercourse between the
+States can be deemed unworthy of the public care. PUBLIUS.
+
+FEDERALIST No. 43
+The Same Subject Continued (The Powers Conferred by the
+Constitution Further Considered)
+For the Independent Journal.
+
+MADISON
+
+To the People of the State of New York:
+THE FOURTH class comprises the following miscellaneous powers:1.
+A power ``to promote the progress of science and useful arts, by
+securing, for a limited time, to authors and inventors, the
+exclusive right to their respective writings and discoveries.
+''The utility of this power will scarcely be questioned. The
+copyright of authors has been solemnly adjudged, in Great
+Britain, to be a right of common law. The right to useful
+inventions seems with equal reason to belong to the inventors.
+The public good fully coincides in both cases with the claims of
+individuals. The States cannot separately make effectual
+provisions for either of the cases, and most of them have
+anticipated the decision of this point, by laws passed at the
+instance of Congress. 2. ``To exercise exclusive legislation, in
+all cases whatsoever, over such district (not exceeding ten miles
+square) as may, by cession of particular States and the
+acceptance of Congress, become the seat of the government of the
+United States; and to exercise like authority over all places
+purchased by the consent of the legislatures of the States in
+which the same shall be, for the erection of forts, magazines,
+arsenals, dockyards, and other needful buildings. ''The
+indispensable necessity of complete authority at the seat of
+government, carries its own evidence with it. It is a power
+exercised by every legislature of the Union, I might say of the
+world, by virtue of its general supremacy. Without it, not only
+the public authority might be insulted and its proceedings
+interrupted with impunity; but a dependence of the members of the
+general government on the State comprehending the seat of the
+government, for protection in the exercise of their duty, might
+bring on the national councils an imputation of awe or influence,
+equally dishonorable to the government and dissatisfactory to the
+other members of the Confederacy. This consideration has the more
+weight, as the gradual accumulation of public improvements at the
+stationary residence of the government would be both too great a
+public pledge to be left in the hands of a single State, and
+would create so many obstacles to a removal of the government, as
+still further to abridge its necessary independence. The extent
+of this federal district is sufficiently circumscribed to satisfy
+every jealousy of an opposite nature. And as it is to be
+appropriated to this use with the consent of the State ceding it;
+as the State will no doubt provide in the compact for the rights
+and the consent of the citizens inhabiting it; as the inhabitants
+will find sufficient inducements of interest to become willing
+parties to the cession; as they will have had their voice in the
+election of the government which is to exercise authority over
+them; as a municipal legislature for local purposes, derived from
+their own suffrages, will of course be allowed them; and as the
+authority of the legislature of the State, and of the inhabitants
+of the ceded part of it, to concur in the cession, will be
+derived from the whole people of the State in their adoption of
+the Constitution, every imaginable objection seems to be
+obviated. The necessity of a like authority over forts,
+magazines, etc., established by the general government, is not
+less evident. The public money expended on such places, and the
+public property deposited in them, requires that they should be
+exempt from the authority of the particular State. Nor would it
+be proper for the places on which the security of the entire
+Union may depend, to be in any degree dependent on a particular
+member of it. All objections and scruples are here also obviated,
+by requiring the concurrence of the States concerned, in every
+such establishment. 3. ``To declare the punishment of treason,
+but no attainder of treason shall work corruption of blood, or
+forfeiture, except during the life of the person attained. ''As
+treason may be committed against the United States, the authority
+of the United States ought to be enabled to punish it. But as
+new-fangled and artificial treasons have been the great engines
+by which violent factions, the natural offspring of free
+government, have usually wreaked their alternate malignity on
+each other, the convention have, with great judgment, opposed a
+barrier to this peculiar danger, by inserting a constitutional
+definition of the crime, fixing the proof necessary for
+conviction of it, and restraining the Congress, even in punishing
+it, from extending the consequences of guilt beyond the person of
+its author. 4. ``To admit new States into the Union; but no new
+State shall be formed or erected within the jurisdiction of any
+other State; nor any State be formed by the junction of two or
+more States, or parts of States, without the consent of the
+legislatures of the States concerned, as well as of the Congress.
+''In the articles of Confederation, no provision is found on this
+important subject. Canada was to be admitted of right, on her
+joining in the measures of the United States; and the other
+COLONIES, by which were evidently meant the other British
+colonies, at the discretion of nine States. The eventual
+establishment of NEW STATES seems to have been overlooked by the
+compilers of that instrument. We have seen the inconvenience of
+this omission, and the assumption of power into which Congress
+have been led by it. With great propriety, therefore, has the new
+system supplied the defect. The general precaution, that no new
+States shall be formed, without the concurrence of the federal
+authority, and that of the States concerned, is consonant to the
+principles which ought to govern such transactions. The
+particular precaution against the erection of new States, by the
+partition of a State without its consent, quiets the jealousy of
+the larger States; as that of the smaller is quieted by a like
+precaution, against a junction of States without their consent.
+5. ``To dispose of and make all needful rules and regulations
+respecting the territory or other property belonging to the
+United States, with a proviso, that nothing in the Constitution
+shall be so construed as to prejudice any claims of the United
+States, or of any particular State. ''This is a power of very
+great importance, and required by considerations similar to those
+which show the propriety of the former. The proviso annexed is
+proper in itself, and was probably rendered absolutely necessary
+by jealousies and questions concerning the Western territory
+sufficiently known to the public. 6. ``To guarantee to every
+State in the Union a republican form of government; to protect
+each of them against invasion; and on application of the
+legislature, or of the executive (when the legislature cannot be
+convened), against domestic violence. ''In a confederacy founded
+on republican principles, and composed of republican members, the
+superintending government ought clearly to possess authority to
+defend the system against aristocratic or monarchial
+innovations. The more intimate the nature of such a union may be,
+the greater interest have the members in the political
+institutions of each other; and the greater right to insist that
+the forms of government under which the compact was entered into
+should be SUBSTANTIALLY maintained. But a right implies a remedy;
+and where else could the remedy be deposited, than where it is
+deposited by the Constitution? Governments of dissimilar
+principles and forms have been found less adapted to a federal
+coalition of any sort, than those of a kindred nature. ``As the
+confederate republic of Germany,'' says Montesquieu, ``consists
+of free cities and petty states, subject to different princes,
+experience shows us that it is more imperfect than that of
+Holland and Switzerland. '' ``Greece was undone,'' he adds, ``as
+soon as the king of Macedon obtained a seat among the
+Amphictyons. '' In the latter case, no doubt, the
+disproportionate force, as well as the monarchical form, of the
+new confederate, had its share of influence on the events. It may
+possibly be asked, what need there could be of such a
+precaution, and whether it may not become a pretext for
+alterations in the State governments, without the concurrence of
+the States themselves. These questions admit of ready answers. If
+the interposition of the general government should not be
+needed, the provision for such an event will be a harmless
+superfluity only in the Constitution. But who can say what
+experiments may be produced by the caprice of particular States,
+by the ambition of enterprising leaders, or by the intrigues and
+influence of foreign powers? To the second question it may be
+answered, that if the general government should interpose by
+virtue of this constitutional authority, it will be, of course,
+bound to pursue the authority. But the authority extends no
+further than to a GUARANTY of a republican form of government,
+which supposes a pre-existing government of the form which is to
+be guaranteed. As long, therefore, as the existing republican
+forms are continued by the States, they are guaranteed by the
+federal Constitution. Whenever the States may choose to
+substitute other republican forms, they have a right to do so,
+and to claim the federal guaranty for the latter. The only
+restriction imposed on them is, that they shall not exchange
+republican for antirepublican Constitutions; a restriction
+which, it is presumed, will hardly be considered as a grievance.
+A protection against invasion is due from every society to the
+parts composing it. The latitude of the expression here used
+seems to secure each State, not only against foreign hostility,
+but against ambitious or vindictive enterprises of its more
+powerful neighbors. The history, both of ancient and modern
+confederacies, proves that the weaker members of the union ought
+not to be insensible to the policy of this article. Protection
+against domestic violence is added with equal propriety. It has
+been remarked, that even among the Swiss cantons, which, properly
+speaking, are not under one government, provision is made for
+this object; and the history of that league informs us that
+mutual aid is frequently claimed and afforded; and as well by
+the most democratic, as the other cantons. A recent and
+well-known event among ourselves has warned us to be prepared for
+emergencies of a like nature. At first view, it might seem not
+to square with the republican theory, to suppose, either that a
+majority have not the right, or that a minority will have the
+force, to subvert a government; and consequently, that the
+federal interposition can never be required, but when it would be
+improper. But theoretic reasoning, in this as in most other
+cases, must be qualified by the lessons of practice. Why may not
+illicit combinations, for purposes of violence, be formed as
+well by a majority of a State, especially a small State as by a
+majority of a county, or a district of the same State; and if
+the authority of the State ought, in the latter case, to protect
+the local magistracy, ought not the federal authority, in the
+former, to support the State authority? Besides, there are
+certain parts of the State constitutions which are so interwoven
+with the federal Constitution, that a violent blow cannot be
+given to the one without communicating the wound to the other.
+Insurrections in a State will rarely induce a federal
+interposition, unless the number concerned in them bear some
+proportion to the friends of government. It will be much better
+that the violence in such cases should be repressed by the
+superintending power, than that the majority should be left to
+maintain their cause by a bloody and obstinate contest. The
+existence of a right to interpose, will generally prevent the
+necessity of exerting it. Is it true that force and right are
+necessarily on the same side in republican governments? May not
+the minor party possess such a superiority of pecuniary
+resources, of military talents and experience, or of secret
+succors from foreign powers, as will render it superior also in
+an appeal to the sword? May not a more compact and advantageous
+position turn the scale on the same side, against a superior
+number so situated as to be less capable of a prompt and
+collected exertion of its strength? Nothing can be more
+chimerical than to imagine that in a trial of actual force,
+victory may be calculated by the rules which prevail in a census
+of the inhabitants, or which determine the event of an election!
+May it not happen, in fine, that the minority of CITIZENS may
+become a majority of PERSONS, by the accession of alien
+residents, of a casual concourse of adventurers, or of those whom
+the constitution of the State has not admitted to the rights of
+suffrage? I take no notice of an unhappy species of population
+abounding in some of the States, who, during the calm of regular
+government, are sunk below the level of men; but who, in the
+tempestuous scenes of civil violence, may emerge into the human
+character, and give a superiority of strength to any party with
+which they may associate themselves. In cases where it may be
+doubtful on which side justice lies, what better umpires could
+be desired by two violent factions, flying to arms, and tearing a
+State to pieces, than the representatives of confederate States,
+not heated by the local flame? To the impartiality of judges,
+they would unite the affection of friends. Happy would it be if
+such a remedy for its infirmities could be enjoyed by all free
+governments; if a project equally effectual could be established
+for the universal peace of mankind! Should it be asked, what is
+to be the redress for an insurrection pervading all the States,
+and comprising a superiority of the entire force, though not a
+constitutional right? the answer must be, that such a case, as
+it would be without the compass of human remedies, so it is
+fortunately not within the compass of human probability; and
+that it is a sufficient recommendation of the federal
+Constitution, that it diminishes the risk of a calamity for which
+no possible constitution can provide a cure. Among the
+advantages of a confederate republic enumerated by Montesquieu,
+an important one is, ``that should a popular insurrection happen
+in one of the States, the others are able to quell it. Should
+abuses creep into one part, they are reformed by those that
+remain sound. ''7. ``To consider all debts contracted, and
+engagements entered into, before the adoption of this
+Constitution, as being no less valid against the United States,
+under this Constitution, than under the Confederation. ''This
+can only be considered as a declaratory proposition; and may have
+been inserted, among other reasons, for the satisfaction of the
+foreign creditors of the United States, who cannot be strangers
+to the pretended doctrine, that a change in the political form of
+civil society has the magical effect of dissolving its moral
+obligations. Among the lesser criticisms which have been
+exercised on the Constitution, it has been remarked that the
+validity of engagements ought to have been asserted in favor of
+the United States, as well as against them; and in the spirit
+which usually characterizes little critics, the omission has been
+transformed and magnified into a plot against the national
+rights. The authors of this discovery may be told, what few
+others need to be informed of, that as engagements are in their
+nature reciprocal, an assertion of their validity on one side,
+necessarily involves a validity on the other side; and that as
+the article is merely declaratory, the establishment of the
+principle in one case is sufficient for every case. They may be
+further told, that every constitution must limit its precautions
+to dangers that are not altogether imaginary; and that no real
+danger can exist that the government would DARE, with, or even
+without, this constitutional declaration before it, to remit the
+debts justly due to the public, on the pretext here condemned. 8.
+``To provide for amendments to be ratified by three fourths of
+the States under two exceptions only. ''That useful alterations
+will be suggested by experience, could not but be foreseen. It
+was requisite, therefore, that a mode for introducing them should
+be provided. The mode preferred by the convention seems to be
+stamped with every mark of propriety. It guards equally against
+that extreme facility, which would render the Constitution too
+mutable; and that extreme difficulty, which might perpetuate its
+discovered faults. It, moreover, equally enables the general and
+the State governments to originate the amendment of errors, as
+they may be pointed out by the experience on one side, or on the
+other. The exception in favor of the equality of suffrage in the
+Senate, was probably meant as a palladium to the residuary
+sovereignty of the States, implied and secured by that principle
+of representation in one branch of the legislature; and was
+probably insisted on by the States particularly attached to that
+equality. The other exception must have been admitted on the same
+considerations which produced the privilege defended by it. 9.
+``The ratification of the conventions of nine States shall be
+sufficient for the establishment of this Constitution between the
+States, ratifying the same. ''This article speaks for itself.
+The express authority of the people alone could give due validity
+to the Constitution. To have required the unanimous ratification
+of the thirteen States, would have subjected the essential
+interests of the whole to the caprice or corruption of a single
+member. It would have marked a want of foresight in the
+convention, which our own experience would have rendered
+inexcusable. Two questions of a very delicate nature present
+themselves on this occasion: 1. On what principle the
+Confederation, which stands in the solemn form of a compact among
+the States, can be superseded without the unanimous consent of
+the parties to it? 2. What relation is to subsist between the
+nine or more States ratifying the Constitution, and the remaining
+few who do not become parties to it? The first question is
+answered at once by recurring to the absolute necessity of the
+case; to the great principle of self-preservation; to the
+transcendent law of nature and of nature's God, which declares
+that the safety and happiness of society are the objects at which
+all political institutions aim, and to which all such
+institutions must be sacrificed. PERHAPS, also, an answer may be
+found without searching beyond the principles of the compact
+itself. It has been heretofore noted among the defects of the
+Confederation, that in many of the States it had received no
+higher sanction than a mere legislative ratification. The
+principle of reciprocality seems to require that its obligation
+on the other States should be reduced to the same standard. A
+compact between independent sovereigns, founded on ordinary acts
+of legislative authority, can pretend to no higher validity than
+a league or treaty between the parties. It is an established
+doctrine on the subject of treaties, that all the articles are
+mutually conditions of each other; that a breach of any one
+article is a breach of the whole treaty; and that a breach,
+committed by either of the parties, absolves the others, and
+authorizes them, if they please, to pronounce the compact
+violated and void. Should it unhappily be necessary to appeal to
+these delicate truths for a justification for dispensing with
+the consent of particular States to a dissolution of the federal
+pact, will not the complaining parties find it a difficult task
+to answer the MULTIPLIED and IMPORTANT infractions with which
+they may be confronted? The time has been when it was incumbent
+on us all to veil the ideas which this paragraph exhibits. The
+scene is now changed, and with it the part which the same motives
+dictate. The second question is not less delicate; and the
+flattering prospect of its being merely hypothetical forbids an
+overcurious discussion of it. It is one of those cases which must
+be left to provide for itself. In general, it may be observed,
+that although no political relation can subsist between the
+assenting and dissenting States, yet the moral relations will
+remain uncancelled. The claims of justice, both on one side and
+on the other, will be in force, and must be fulfilled; the
+rights of humanity must in all cases be duly and mutually
+respected; whilst considerations of a common interest, and,
+above all, the remembrance of the endearing scenes which are
+past, and the anticipation of a speedy triumph over the obstacles
+to reunion, will, it is hoped, not urge in vain MODERATION on one
+side, and PRUDENCE on the other. PUBLIUS.
+
+
+FEDERALIST No. 44
+
+Restrictions on the Authority of the Several States
+From the New York Packet. Friday, January 25, 1788.
+
+MADISON
+
+To the People of the State of New York:
+A FIFTH class of provisions in favor of the federal authority
+consists of the following restrictions on the authority of the
+several States:1. ``No State shall enter into any treaty,
+alliance, or confederation; grant letters of marque and reprisal;
+coin money; emit bills of credit; make any thing but gold and
+silver a legal tender in payment of debts; pass any bill of
+attainder, ex-post-facto law, or law impairing the obligation of
+contracts; or grant any title of nobility. ''The prohibition
+against treaties, alliances, and confederations makes a part of
+the existing articles of Union; and for reasons which need no
+explanation, is copied into the new Constitution. The prohibition
+of letters of marque is another part of the old system, but is
+somewhat extended in the new. According to the former, letters of
+marque could be granted by the States after a declaration of war;
+according to the latter, these licenses must be obtained, as well
+during war as previous to its declaration, from the government of
+the United States. This alteration is fully justified by the
+advantage of uniformity in all points which relate to foreign
+powers; and of immediate responsibility to the nation in all
+those for whose conduct the nation itself is to be responsible.
+The right of coining money, which is here taken from the States,
+was left in their hands by the Confederation, as a concurrent
+right with that of Congress, under an exception in favor of the
+exclusive right of Congress to regulate the alloy and value. In
+this instance, also, the new provision is an improvement on the
+old. Whilst the alloy and value depended on the general
+authority, a right of coinage in the particular States could have
+no other effect than to multiply expensive mints and diversify
+the forms and weights of the circulating pieces. The latter
+inconveniency defeats one purpose for which the power was
+originally submitted to the federal head; and as far as the
+former might prevent an inconvenient remittance of gold and
+silver to the central mint for recoinage, the end can be as well
+attained by local mints established under the general authority.
+The extension of the prohibition to bills of credit must give
+pleasure to every citizen, in proportion to his love of justice
+and his knowledge of the true springs of public prosperity. The
+loss which America has sustained since the peace, from the
+pestilent effects of paper money on the necessary confidence
+between man and man, on the necessary confidence in the public
+councils, on the industry and morals of the people, and on the
+character of republican government, constitutes an enormous debt
+against the States chargeable with this unadvised measure, which
+must long remain unsatisfied; or rather an accumulation of guilt,
+which can be expiated no otherwise than by a voluntary sacrifice
+on the altar of justice, of the power which has been the
+instrument of it. In addition to these persuasive
+considerations, it may be observed, that the same reasons which
+show the necessity of denying to the States the power of
+regulating coin, prove with equal force that they ought not to be
+at liberty to substitute a paper medium in the place of coin. Had
+every State a right to regulate the value of its coin, there
+might be as many different currencies as States, and thus the
+intercourse among them would be impeded; retrospective
+alterations in its value might be made, and thus the citizens of
+other States be injured, and animosities be kindled among the
+States themselves. The subjects of foreign powers might suffer
+from the same cause, and hence the Union be discredited and
+embroiled by the indiscretion of a single member. No one of these
+mischiefs is less incident to a power in the States to emit paper
+money, than to coin gold or silver. The power to make any thing
+but gold and silver a tender in payment of debts, is withdrawn
+from the States, on the same principle with that of issuing a
+paper currency. Bills of attainder, ex-post-facto laws, and laws
+impairing the obligation of contracts, are contrary to the first
+principles of the social compact, and to every principle of sound
+legislation. The two former are expressly prohibited by the
+declarations prefixed to some of the State constitutions, and all
+of them are prohibited by the spirit and scope of these
+fundamental charters. Our own experience has taught us,
+nevertheless, that additional fences against these dangers ought
+not to be omitted. Very properly, therefore, have the convention
+added this constitutional bulwark in favor of personal security
+and private rights; and I am much deceived if they have not, in
+so doing, as faithfully consulted the genuine sentiments as the
+undoubted interests of their constituents. The sober people of
+America are weary of the fluctuating policy which has directed
+the public councils. They have seen with regret and indignation
+that sudden changes and legislative interferences, in cases
+affecting personal rights, become jobs in the hands of
+enterprising and influential speculators, and snares to the
+more-industrious and less-informed part of the community. They
+have seen, too, that one legislative interference is but the
+first link of a long chain of repetitions, every subsequent
+interference being naturally produced by the effects of the
+preceding. They very rightly infer, therefore, that some thorough
+reform is wanting, which will banish speculations on public
+measures, inspire a general prudence and industry, and give a
+regular course to the business of society. The prohibition with
+respect to titles of nobility is copied from the articles of
+Confederation and needs no comment. 2. ``No State shall, without
+the consent of the Congress, lay any imposts or duties on imports
+or exports, except what may be absolutely necessary for executing
+its inspection laws, and the net produce of all duties and
+imposts laid by any State on imports or exports, shall be for the
+use of the treasury of the United States; and all such laws shall
+be subject to the revision and control of the Congress. No State
+shall, without the consent of Congress, lay any duty on tonnage,
+keep troops or ships of war in time of peace, enter into any
+agreement or compact with another State, or with a foreign power,
+or engage in war unless actually invaded, or in such imminent
+danger as will not admit of delay. ''The restraint on the power
+of the States over imports and exports is enforced by all the
+arguments which prove the necessity of submitting the regulation
+of trade to the federal councils. It is needless, therefore, to
+remark further on this head, than that the manner in which the
+restraint is qualified seems well calculated at once to secure to
+the States a reasonable discretion in providing for the
+conveniency of their imports and exports, and to the United
+States a reasonable check against the abuse of this discretion.
+The remaining particulars of this clause fall within reasonings
+which are either so obvious, or have been so fully developed,
+that they may be passed over without remark. The SIXTH and last
+class consists of the several powers and provisions by which
+efficacy is given to all the rest. 1. Of these the first is, the
+``power to make all laws which shall be necessary and proper for
+carrying into execution the foregoing powers, and all other
+powers vested by this Constitution in the government of the
+United States, or in any department or officer thereof. ''Few
+parts of the Constitution have been assailed with more
+intemperance than this; yet on a fair investigation of it, no
+part can appear more completely invulnerable. Without the
+SUBSTANCE of this power, the whole Constitution would be a dead
+letter. Those who object to the article, therefore, as a part of
+the Constitution, can only mean that the FORM of the provision is
+improper. But have they considered whether a better form could
+have been substituted? There are four other possible methods
+which the Constitution might have taken on this subject. They
+might have copied the second article of the existing
+Confederation, which would have prohibited the exercise of any
+power not EXPRESSLY delegated; they might have attempted a
+positive enumeration of the powers comprehended under the general
+terms ``necessary and proper''; they might have attempted a
+negative enumeration of them, by specifying the powers excepted
+from the general definition; they might have been altogether
+silent on the subject, leaving these necessary and proper powers
+to construction and inference. Had the convention taken the
+first method of adopting the second article of Confederation, it
+is evident that the new Congress would be continually exposed, as
+their predecessors have been, to the alternative of construing
+the term ``EXPRESSLY'' with so much rigor, as to disarm the
+government of all real authority whatever, or with so much
+latitude as to destroy altogether the force of the restriction.
+It would be easy to show, if it were necessary, that no important
+power, delegated by the articles of Confederation, has been or
+can be executed by Congress, without recurring more or less to
+the doctrine of CONSTRUCTION or IMPLICATION. As the powers
+delegated under the new system are more extensive, the government
+which is to administer it would find itself still more distressed
+with the alternative of betraying the public interests by doing
+nothing, or of violating the Constitution by exercising powers
+indispensably necessary and proper, but, at the same time, not
+EXPRESSLY granted. Had the convention attempted a positive
+enumeration of the powers necessary and proper for carrying their
+other powers into effect, the attempt would have involved a
+complete digest of laws on every subject to which the
+Constitution relates; accommodated too, not only to the existing
+state of things, but to all the possible changes which futurity
+may produce; for in every new application of a general power, the
+PARTICULAR POWERS, which are the means of attaining the OBJECT of
+the general power, must always necessarily vary with that object,
+and be often properly varied whilst the object remains the same.
+Had they attempted to enumerate the particular powers or means
+not necessary or proper for carrying the general powers into
+execution, the task would have been no less chimerical; and would
+have been liable to this further objection, that every defect in
+the enumeration would have been equivalent to a positive grant of
+authority. If, to avoid this consequence, they had attempted a
+partial enumeration of the exceptions, and described the residue
+by the general terms, NOT NECESSARY OR PROPER, it must have
+happened that the enumeration would comprehend a few of the
+excepted powers only; that these would be such as would be least
+likely to be assumed or tolerated, because the enumeration would
+of course select such as would be least necessary or proper; and
+that the unnecessary and improper powers included in the
+residuum, would be less forcibly excepted, than if no partial
+enumeration had been made. Had the Constitution been silent on
+this head, there can be no doubt that all the particular powers
+requisite as means of executing the general powers would have
+resulted to the government, by unavoidable implication. No axiom
+is more clearly established in law, or in reason, than that
+wherever the end is required, the means are authorized; wherever
+a general power to do a thing is given, every particular power
+necessary for doing it is included. Had this last method,
+therefore, been pursued by the convention, every objection now
+urged against their plan would remain in all its plausibility;
+and the real inconveniency would be incurred of not removing a
+pretext which may be seized on critical occasions for drawing
+into question the essential powers of the Union. If it be asked
+what is to be the consequence, in case the Congress shall
+misconstrue this part of the Constitution, and exercise powers
+not warranted by its true meaning, I answer, the same as if they
+should misconstrue or enlarge any other power vested in them; as
+if the general power had been reduced to particulars, and any one
+of these were to be violated; the same, in short, as if the State
+legislatures should violate the irrespective constitutional
+authorities. In the first instance, the success of the usurpation
+will depend on the executive and judiciary departments, which are
+to expound and give effect to the legislative acts; and in the
+last resort a remedy must be obtained from the people who can, by
+the election of more faithful representatives, annul the acts of
+the usurpers. The truth is, that this ultimate redress may be
+more confided in against unconstitutional acts of the federal
+than of the State legislatures, for this plain reason, that as
+every such act of the former will be an invasion of the rights of
+the latter, these will be ever ready to mark the innovation, to
+sound the alarm to the people, and to exert their local influence
+in effecting a change of federal representatives. There being no
+such intermediate body between the State legislatures and the
+people interested in watching the conduct of the former,
+violations of the State constitutions are more likely to remain
+unnoticed and unredressed. 2. ``This Constitution and the laws
+of the United States which shall be made in pursuance thereof,
+and all treaties made, or which shall be made, under the
+authority of the United States, shall be the supreme law of the
+land, and the judges in every State shall be bound thereby, any
+thing in the constitution or laws of any State to the contrary
+notwithstanding. ''The indiscreet zeal of the adversaries to the
+Constitution has betrayed them into an attack on this part of it
+also, without which it would have been evidently and radically
+defective. To be fully sensible of this, we need only suppose for
+a moment that the supremacy of the State constitutions had been
+left complete by a saving clause in their favor. In the first
+place, as these constitutions invest the State legislatures with
+absolute sovereignty, in all cases not excepted by the existing
+articles of Confederation, all the authorities contained in the
+proposed Constitution, so far as they exceed those enumerated in
+the Confederation, would have been annulled, and the new Congress
+would have been reduced to the same impotent condition with their
+predecessors. In the next place, as the constitutions of some of
+the States do not even expressly and fully recognize the existing
+powers of the Confederacy, an express saving of the supremacy of
+the former would, in such States, have brought into question
+every power contained in the proposed Constitution. In the third
+place, as the constitutions of the States differ much from each
+other, it might happen that a treaty or national law, of great
+and equal importance to the States, would interfere with some and
+not with other constitutions, and would consequently be valid in
+some of the States, at the same time that it would have no effect
+in others. In fine, the world would have seen, for the first
+time, a system of government founded on an inversion of the
+fundamental principles of all government; it would have seen the
+authority of the whole society every where subordinate to the
+authority of the parts; it would have seen a monster, in which
+the head was under the direction of the members. 3. ``The
+Senators and Representatives, and the members of the several
+State legislatures, and all executive and judicial officers, both
+of the United States and the several States, shall be bound by
+oath or affirmation to support this Constitution. ''It has been
+asked why it was thought necessary, that the State magistracy
+should be bound to support the federal Constitution, and
+unnecessary that a like oath should be imposed on the officers of
+the United States, in favor of the State constitutions. Several
+reasons might be assigned for the distinction. I content myself
+with one, which is obvious and conclusive. The members of the
+federal government will have no agency in carrying the State
+constitutions into effect. The members and officers of the State
+governments, on the contrary, will have an essential agency in
+giving effect to the federal Constitution. The election of the
+President and Senate will depend, in all cases, on the
+legislatures of the several States. And the election of the House
+of Representatives will equally depend on the same authority in
+the first instance; and will, probably, forever be conducted by
+the officers, and according to the laws, of the States. 4. Among
+the provisions for giving efficacy to the federal powers might be
+added those which belong to the executive and judiciary
+departments: but as these are reserved for particular examination
+in another place, I pass them over in this. We have now
+reviewed, in detail, all the articles composing the sum or
+quantity of power delegated by the proposed Constitution to the
+federal government, and are brought to this undeniable
+conclusion, that no part of the power is unnecessary or improper
+for accomplishing the necessary objects of the Union. The
+question, therefore, whether this amount of power shall be
+granted or not, resolves itself into another question, whether or
+not a government commensurate to the exigencies of the Union
+shall be established; or, in other words, whether the Union
+itself shall be preserved. PUBLIUS.
+
+
+FEDERALIST No. 45
+
+The Alleged Danger From the Powers of the Union to the State
+Governments Considered
+For the Independent Fournal.
+
+MADISON
+
+To the People of the State of New York:
+HAVING shown that no one of the powers transferred to the federal
+government is unnecessary or improper, the next question to be
+considered is, whether the whole mass of them will be dangerous
+to the portion of authority left in the several States. The
+adversaries to the plan of the convention, instead of considering
+in the first place what degree of power was absolutely necessary
+for the purposes of the federal government, have exhausted
+themselves in a secondary inquiry into the possible consequences
+of the proposed degree of power to the governments of the
+particular States. But if the Union, as has been shown, be
+essential to the security of the people of America against
+foreign danger; if it be essential to their security against
+contentions and wars among the different States; if it be
+essential to guard them against those violent and oppressive
+factions which embitter the blessings of liberty, and against
+those military establishments which must gradually poison its
+very fountain; if, in a word, the Union be essential to the
+happiness of the people of America, is it not preposterous, to
+urge as an objection to a government, without which the objects
+of the Union cannot be attained, that such a government may
+derogate from the importance of the governments of the individual
+States? Was, then, the American Revolution effected, was the
+American Confederacy formed, was the precious blood of thousands
+spilt, and the hard-earned substance of millions lavished, not
+that the people of America should enjoy peace, liberty, and
+safety, but that the government of the individual States, that
+particular municipal establishments, might enjoy a certain extent
+of power, and be arrayed with certain dignities and attributes of
+sovereignty? We have heard of the impious doctrine in the Old
+World, that the people were made for kings, not kings for the
+people. Is the same doctrine to be revived in the New, in another
+shape that the solid happiness of the people is to be sacrificed
+to the views of political institutions of a different form? It is
+too early for politicians to presume on our forgetting that the
+public good, the real welfare of the great body of the people, is
+the supreme object to be pursued; and that no form of government
+whatever has any other value than as it may be fitted for the
+attainment of this object. Were the plan of the convention
+adverse to the public happiness, my voice would be, Reject the
+plan. Were the Union itself inconsistent with the public
+happiness, it would be, Abolish the Union. In like manner, as far
+as the sovereignty of the States cannot be reconciled to the
+happiness of the people, the voice of every good citizen must be,
+Let the former be sacrificed to the latter. How far the sacrifice
+is necessary, has been shown. How far the unsacrificed residue
+will be endangered, is the question before us. Several important
+considerations have been touched in the course of these papers,
+which discountenance the supposition that the operation of the
+federal government will by degrees prove fatal to the State
+governments. The more I revolve the subject, the more fully I am
+persuaded that the balance is much more likely to be disturbed by
+the preponderancy of the last than of the first scale. We have
+seen, in all the examples of ancient and modern confederacies,
+the strongest tendency continually betraying itself in the
+members, to despoil the general government of its authorities,
+with a very ineffectual capacity in the latter to defend itself
+against the encroachments. Although, in most of these examples,
+the system has been so dissimilar from that under consideration
+as greatly to weaken any inference concerning the latter from the
+fate of the former, yet, as the States will retain, under the
+proposed Constitution, a very extensive portion of active
+sovereignty, the inference ought not to be wholly disregarded. In
+the Achaean league it is probable that the federal head had a
+degree and species of power, which gave it a considerable
+likeness to the government framed by the convention. The Lycian
+Confederacy, as far as its principles and form are transmitted,
+must have borne a still greater analogy to it. Yet history does
+not inform us that either of them ever degenerated, or tended to
+degenerate, into one consolidated government. On the contrary, we
+know that the ruin of one of them proceeded from the incapacity
+of the federal authority to prevent the dissensions, and finally
+the disunion, of the subordinate authorities. These cases are the
+more worthy of our attention, as the external causes by which the
+component parts were pressed together were much more numerous and
+powerful than in our case; and consequently less powerful
+ligaments within would be sufficient to bind the members to the
+head, and to each other. In the feudal system, we have seen a
+similar propensity exemplified. Notwithstanding the want of
+proper sympathy in every instance between the local sovereigns
+and the people, and the sympathy in some instances between the
+general sovereign and the latter, it usually happened that the
+local sovereigns prevailed in the rivalship for encroachments.
+Had no external dangers enforced internal harmony and
+subordination, and particularly, had the local sovereigns
+possessed the affections of the people, the great kingdoms in
+Europe would at this time consist of as many independent princes
+as there were formerly feudatory barons. The State government
+will have the advantage of the Federal government, whether we
+compare them in respect to the immediate dependence of the one on
+the other; to the weight of personal influence which each side
+will possess; to the powers respectively vested in them; to the
+predilection and probable support of the people; to the
+disposition and faculty of resisting and frustrating the measures
+of each other. The State governments may be regarded as
+constituent and essential parts of the federal government; whilst
+the latter is nowise essential to the operation or organization
+of the former. Without the intervention of the State
+legislatures, the President of the United States cannot be
+elected at all. They must in all cases have a great share in his
+appointment, and will, perhaps, in most cases, of themselves
+determine it. The Senate will be elected absolutely and
+exclusively by the State legislatures. Even the House of
+Representatives, though drawn immediately from the people, will
+be chosen very much under the influence of that class of men,
+whose influence over the people obtains for themselves an
+election into the State legislatures. Thus, each of the principal
+branches of the federal government will owe its existence more or
+less to the favor of the State governments, and must consequently
+feel a dependence, which is much more likely to beget a
+disposition too obsequious than too overbearing towards them. On
+the other side, the component parts of the State governments will
+in no instance be indebted for their appointment to the direct
+agency of the federal government, and very little, if at all, to
+the local influence of its members. The number of individuals
+employed under the Constitution of the United States will be much
+smaller than the number employed under the particular States.
+There will consequently be less of personal influence on the side
+of the former than of the latter. The members of the legislative,
+executive, and judiciary departments of thirteen and more States,
+the justices of peace, officers of militia, ministerial officers
+of justice, with all the county, corporation, and town officers,
+for three millions and more of people, intermixed, and having
+particular acquaintance with every class and circle of people,
+must exceed, beyond all proportion, both in number and influence,
+those of every description who will be employed in the
+administration of the federal system. Compare the members of the
+three great departments of the thirteen States, excluding from
+the judiciary department the justices of peace, with the members
+of the corresponding departments of the single government of the
+Union; compare the militia officers of three millions of people
+with the military and marine officers of any establishment which
+is within the compass of probability, or, I may add, of
+possibility, and in this view alone, we may pronounce the
+advantage of the States to be decisive. If the federal government
+is to have collectors of revenue, the State governments will have
+theirs also. And as those of the former will be principally on
+the seacoast, and not very numerous, whilst those of the latter
+will be spread over the face of the country, and will be very
+numerous, the advantage in this view also lies on the same side.
+It is true, that the Confederacy is to possess, and may exercise,
+the power of collecting internal as well as external taxes
+throughout the States; but it is probable that this power will
+not be resorted to, except for supplemental purposes of revenue;
+that an option will then be given to the States to supply their
+quotas by previous collections of their own; and that the
+eventual collection, under the immediate authority of the Union,
+will generally be made by the officers, and according to the
+rules, appointed by the several States. Indeed it is extremely
+probable, that in other instances, particularly in the
+organization of the judicial power, the officers of the States
+will be clothed with the correspondent authority of the Union.
+Should it happen, however, that separate collectors of internal
+revenue should be appointed under the federal government, the
+influence of the whole number would not bear a comparison with
+that of the multitude of State officers in the opposite scale.
+Within every district to which a federal collector would be
+allotted, there would not be less than thirty or forty, or even
+more, officers of different descriptions, and many of them
+persons of character and weight, whose influence would lie on the
+side of the State. The powers delegated by the proposed
+Constitution to the federal government are few and defined. Those
+which are to remain in the State governments are numerous and
+indefinite. The former will be exercised principally on external
+objects, as war, peace, negotiation, and foreign commerce; with
+which last the power of taxation will, for the most part, be
+connected. The powers reserved to the several States will extend
+to all the objects which, in the ordinary course of affairs,
+concern the lives, liberties, and properties of the people, and
+the internal order, improvement, and prosperity of the State. The
+operations of the federal government will be most extensive and
+important in times of war and danger; those of the State
+governments, in times of peace and security. As the former
+periods will probably bear a small proportion to the latter, the
+State governments will here enjoy another advantage over the
+federal government. The more adequate, indeed, the federal powers
+may be rendered to the national defense, the less frequent will
+be those scenes of danger which might favor their ascendancy over
+the governments of the particular States. If the new Constitution
+be examined with accuracy and candor, it will be found that the
+change which it proposes consists much less in the addition of
+NEW POWERS to the Union, than in the invigoration of its ORIGINAL
+POWERS. The regulation of commerce, it is true, is a new power;
+but that seems to be an addition which few oppose, and from which
+no apprehensions are entertained. The powers relating to war and
+peace, armies and fleets, treaties and finance, with the other
+more considerable powers, are all vested in the existing Congress
+by the articles of Confederation. The proposed change does not
+enlarge these powers; it only substitutes a more effectual mode
+of administering them. The change relating to taxation may be
+regarded as the most important; and yet the present Congress have
+as complete authority to REQUIRE of the States indefinite
+supplies of money for the common defense and general welfare, as
+the future Congress will have to require them of individual
+citizens; and the latter will be no more bound than the States
+themselves have been, to pay the quotas respectively taxed on
+them. Had the States complied punctually with the articles of
+Confederation, or could their compliance have been enforced by as
+peaceable means as may be used with success towards single
+persons, our past experience is very far from countenancing an
+opinion, that the State governments would have lost their
+constitutional powers, and have gradually undergone an entire
+consolidation. To maintain that such an event would have ensued,
+would be to say at once, that the existence of the State
+governments is incompatible with any system whatever that
+accomplishes the essential purposes of the Union. PUBLIUS.
+
+
+FEDERALIST No. 46
+
+The Influence of the State and Federal Governments Compared
+From the New York Packet. Tuesday, January 29, 1788.
+
+MADISON
+
+To the People of the State of New York:
+RESUMING the subject of the last paper, I proceed to inquire
+whether the federal government or the State governments will have
+the advantage with regard to the predilection and support of the
+people. Notwithstanding the different modes in which they are
+appointed, we must consider both of them as substantially
+dependent on the great body of the citizens of the United States.
+I assume this position here as it respects the first, reserving
+the proofs for another place. The federal and State governments
+are in fact but different agents and trustees of the people,
+constituted with different powers, and designed for different
+purposes. The adversaries of the Constitution seem to have lost
+sight of the people altogether in their reasonings on this
+subject; and to have viewed these different establishments, not
+only as mutual rivals and enemies, but as uncontrolled by any
+common superior in their efforts to usurp the authorities of each
+other. These gentlemen must here be reminded of their error. They
+must be told that the ultimate authority, wherever the derivative
+may be found, resides in the people alone, and that it will not
+depend merely on the comparative ambition or address of the
+different governments, whether either, or which of them, will be
+able to enlarge its sphere of jurisdiction at the expense of the
+other. Truth, no less than decency, requires that the event in
+every case should be supposed to depend on the sentiments and
+sanction of their common constituents. Many considerations,
+besides those suggested on a former occasion, seem to place it
+beyond doubt that the first and most natural attachment of the
+people will be to the governments of their respective States.
+Into the administration of these a greater number of individuals
+will expect to rise. From the gift of these a greater number of
+offices and emoluments will flow. By the superintending care of
+these, all the more domestic and personal interests of the people
+will be regulated and provided for. With the affairs of these,
+the people will be more familiarly and minutely conversant. And
+with the members of these, will a greater proportion of the
+people have the ties of personal acquaintance and friendship, and
+of family and party attachments; on the side of these,
+therefore, the popular bias may well be expected most strongly to
+incline. Experience speaks the same language in this case. The
+federal administration, though hitherto very defective in
+comparison with what may be hoped under a better system, had,
+during the war, and particularly whilst the independent fund of
+paper emissions was in credit, an activity and importance as
+great as it can well have in any future circumstances whatever.
+It was engaged, too, in a course of measures which had for their
+object the protection of everything that was dear, and the
+acquisition of everything that could be desirable to the people
+at large. It was, nevertheless, invariably found, after the
+transient enthusiasm for the early Congresses was over, that the
+attention and attachment of the people were turned anew to their
+own particular governments; that the federal council was at no
+time the idol of popular favor; and that opposition to proposed
+enlargements of its powers and importance was the side usually
+taken by the men who wished to build their political consequence
+on the prepossessions of their fellow-citizens. If, therefore,
+as has been elsewhere remarked, the people should in future
+become more partial to the federal than to the State governments,
+the change can only result from such manifest and irresistible
+proofs of a better administration, as will overcome all their
+antecedent propensities. And in that case, the people ought not
+surely to be precluded from giving most of their confidence where
+they may discover it to be most due; but even in that case the
+State governments could have little to apprehend, because it is
+only within a certain sphere that the federal power can, in the
+nature of things, be advantageously administered. The remaining
+points on which I propose to compare the federal and State
+governments, are the disposition and the faculty they may
+respectively possess, to resist and frustrate the measures of
+each other. It has been already proved that the members of the
+federal will be more dependent on the members of the State
+governments, than the latter will be on the former. It has
+appeared also, that the prepossessions of the people, on whom
+both will depend, will be more on the side of the State
+governments, than of the federal government. So far as the
+disposition of each towards the other may be influenced by these
+causes, the State governments must clearly have the advantage.
+But in a distinct and very important point of view, the advantage
+will lie on the same side. The prepossessions, which the members
+themselves will carry into the federal government, will generally
+be favorable to the States; whilst it will rarely happen, that
+the members of the State governments will carry into the public
+councils a bias in favor of the general government. A local
+spirit will infallibly prevail much more in the members of
+Congress, than a national spirit will prevail in the legislatures
+of the particular States. Every one knows that a great proportion
+of the errors committed by the State legislatures proceeds from
+the disposition of the members to sacrifice the comprehensive and
+permanent interest of the State, to the particular and separate
+views of the counties or districts in which they reside. And if
+they do not sufficiently enlarge their policy to embrace the
+collective welfare of their particular State, how can it be
+imagined that they will make the aggregate prosperity of the
+Union, and the dignity and respectability of its government, the
+objects of their affections and consultations? For the same
+reason that the members of the State legislatures will be
+unlikely to attach themselves sufficiently to national objects,
+the members of the federal legislature will be likely to attach
+themselves too much to local objects. The States will be to the
+latter what counties and towns are to the former. Measures will
+too often be decided according to their probable effect, not on
+the national prosperity and happiness, but on the prejudices,
+interests, and pursuits of the governments and people of the
+individual States. What is the spirit that has in general
+characterized the proceedings of Congress? A perusal of their
+journals, as well as the candid acknowledgments of such as have
+had a seat in that assembly, will inform us, that the members
+have but too frequently displayed the character, rather of
+partisans of their respective States, than of impartial guardians
+of a common interest; that where on one occasion improper
+sacrifices have been made of local considerations, to the
+aggrandizement of the federal government, the great interests of
+the nation have suffered on a hundred, from an undue attention to
+the local prejudices, interests, and views of the particular
+States. I mean not by these reflections to insinuate, that the
+new federal government will not embrace a more enlarged plan of
+policy than the existing government may have pursued; much less,
+that its views will be as confined as those of the State
+legislatures; but only that it will partake sufficiently of the
+spirit of both, to be disinclined to invade the rights of the
+individual States, or the preorgatives of their governments. The
+motives on the part of the State governments, to augment their
+prerogatives by defalcations from the federal government, will be
+overruled by no reciprocal predispositions in the members. Were
+it admitted, however, that the Federal government may feel an
+equal disposition with the State governments to extend its power
+beyond the due limits, the latter would still have the advantage
+in the means of defeating such encroachments. If an act of a
+particular State, though unfriendly to the national government,
+be generally popular in that State and should not too grossly
+violate the oaths of the State officers, it is executed
+immediately and, of course, by means on the spot and depending on
+the State alone. The opposition of the federal government, or the
+interposition of federal officers, would but inflame the zeal of
+all parties on the side of the State, and the evil could not be
+prevented or repaired, if at all, without the employment of means
+which must always be resorted to with reluctance and difficulty.
+On the other hand, should an unwarrantable measure of the federal
+government be unpopular in particular States, which would seldom
+fail to be the case, or even a warrantable measure be so, which
+may sometimes be the case, the means of opposition to it are
+powerful and at hand. The disquietude of the people; their
+repugnance and, perhaps, refusal to co-operate with the officers
+of the Union; the frowns of the executive magistracy of the
+State; the embarrassments created by legislative devices, which
+would often be added on such occasions, would oppose, in any
+State, difficulties not to be despised; would form, in a large
+State, very serious impediments; and where the sentiments of
+several adjoining States happened to be in unison, would present
+obstructions which the federal government would hardly be willing
+to encounter. But ambitious encroachments of the federal
+government, on the authority of the State governments, would not
+excite the opposition of a single State, or of a few States
+only. They would be signals of general alarm. Every government
+would espouse the common cause. A correspondence would be
+opened. Plans of resistance would be concerted. One spirit would
+animate and conduct the whole. The same combinations, in short,
+would result from an apprehension of the federal, as was produced
+by the dread of a foreign, yoke; and unless the projected
+innovations should be voluntarily renounced, the same appeal to
+a trial of force would be made in the one case as was made in the
+other. But what degree of madness could ever drive the federal
+government to such an extremity. In the contest with Great
+Britain, one part of the empire was employed against the other.
+The more numerous part invaded the rights of the less numerous
+part. The attempt was unjust and unwise; but it was not in
+speculation absolutely chimerical. But what would be the contest
+in the case we are supposing? Who would be the parties? A few
+representatives of the people would be opposed to the people
+themselves; or rather one set of representatives would be
+contending against thirteen sets of representatives, with the
+whole body of their common constituents on the side of the
+latter. The only refuge left for those who prophesy the downfall
+of the State governments is the visionary supposition that the
+federal government may previously accumulate a military force for
+the projects of ambition. The reasonings contained in these
+papers must have been employed to little purpose indeed, if it
+could be necessary now to disprove the reality of this danger.
+That the people and the States should, for a sufficient period of
+time, elect an uninterrupted succession of men ready to betray
+both; that the traitors should, throughout this period,
+uniformly and systematically pursue some fixed plan for the
+extension of the military establishment; that the governments
+and the people of the States should silently and patiently behold
+the gathering storm, and continue to supply the materials, until
+it should be prepared to burst on their own heads, must appear to
+every one more like the incoherent dreams of a delirious
+jealousy, or the misjudged exaggerations of a counterfeit zeal,
+than like the sober apprehensions of genuine patriotism.
+Extravagant as the supposition is, let it however be made. Let a
+regular army, fully equal to the resources of the country, be
+formed; and let it be entirely at the devotion of the federal
+government; still it would not be going too far to say, that the
+State governments, with the people on their side, would be able
+to repel the danger. The highest number to which, according to
+the best computation, a standing army can be carried in any
+country, does not exceed one hundredth part of the whole number
+of souls; or one twenty-fifth part of the number able to bear
+arms. This proportion would not yield, in the United States, an
+army of more than twenty-five or thirty thousand men. To these
+would be opposed a militia amounting to near half a million of
+citizens with arms in their hands, officered by men chosen from
+among themselves, fighting for their common liberties, and united
+and conducted by governments possessing their affections and
+confidence. It may well be doubted, whether a militia thus
+circumstanced could ever be conquered by such a proportion of
+regular troops. Those who are best acquainted with the last
+successful resistance of this country against the British arms,
+will be most inclined to deny the possibility of it. Besides the
+advantage of being armed, which the Americans possess over the
+people of almost every other nation, the existence of
+subordinate governments, to which the people are attached, and by
+which the militia officers are appointed, forms a barrier against
+the enterprises of ambition, more insurmountable than any which a
+simple government of any form can admit of. Notwithstanding the
+military establishments in the several kingdoms of Europe, which
+are carried as far as the public resources will bear, the
+governments are afraid to trust the people with arms. And it is
+not certain, that with this aid alone they would not be able to
+shake off their yokes. But were the people to possess the
+additional advantages of local governments chosen by themselves,
+who could collect the national will and direct the national
+force, and of officers appointed out of the militia, by these
+governments, and attached both to them and to the militia, it may
+be affirmed with the greatest assurance, that the throne of every
+tyranny in Europe would be speedily overturned in spite of the
+legions which surround it. Let us not insult the free and gallant
+citizens of America with the suspicion, that they would be less
+able to defend the rights of which they would be in actual
+possession, than the debased subjects of arbitrary power would be
+to rescue theirs from the hands of their oppressors. Let us
+rather no longer insult them with the supposition that they can
+ever reduce themselves to the necessity of making the experiment,
+by a blind and tame submission to the long train of insidious
+measures which must precede and produce it. The argument under
+the present head may be put into a very concise form, which
+appears altogether conclusive. Either the mode in which the
+federal government is to be constructed will render it
+sufficiently dependent on the people, or it will not. On the
+first supposition, it will be restrained by that dependence from
+forming schemes obnoxious to their constituents. On the other
+supposition, it will not possess the confidence of the people,
+and its schemes of usurpation will be easily defeated by the
+State governments, who will be supported by the people. On
+summing up the considerations stated in this and the last paper,
+they seem to amount to the most convincing evidence, that the
+powers proposed to be lodged in the federal government are as
+little formidable to those reserved to the individual States, as
+they are indispensably necessary to accomplish the purposes of
+the Union; and that all those alarms which have been sounded, of
+a meditated and consequential annihilation of the State
+governments, must, on the most favorable interpretation, be
+ascribed to the chimerical fears of the authors of them. PUBLIUS.
+
+
+FEDERALIST No. 47
+
+The Particular Structure of the New Government and the
+Distribution of Power Among Its Different Parts
+From the New York Packet. Friday, February 1, 1788.
+
+MADISON
+
+To the People of the State of New York:
+HAVING reviewed the general form of the proposed government and
+the general mass of power allotted to it, I proceed to examine
+the particular structure of this government, and the distribution
+of this mass of power among its constituent parts. One of the
+principal objections inculcated by the more respectable
+adversaries to the Constitution, is its supposed violation of the
+political maxim, that the legislative, executive, and judiciary
+departments ought to be separate and distinct. In the structure
+of the federal government, no regard, it is said, seems to have
+been paid to this essential precaution in favor of liberty. The
+several departments of power are distributed and blended in such
+a manner as at once to destroy all symmetry and beauty of form,
+and to expose some of the essential parts of the edifice to the
+danger of being crushed by the disproportionate weight of other
+parts. No political truth is certainly of greater intrinsic
+value, or is stamped with the authority of more enlightened
+patrons of liberty, than that on which the objection is founded.
+The accumulation of all powers, legislative, executive, and
+judiciary, in the same hands, whether of one, a few, or many, and
+whether hereditary, selfappointed, or elective, may justly be
+pronounced the very definition of tyranny. Were the federal
+Constitution, therefore, really chargeable with the accumulation
+of power, or with a mixture of powers, having a dangerous
+tendency to such an accumulation, no further arguments would be
+necessary to inspire a universal reprobation of the system. I
+persuade myself, however, that it will be made apparent to every
+one, that the charge cannot be supported, and that the maxim on
+which it relies has been totally misconceived and misapplied. In
+order to form correct ideas on this important subject, it will be
+proper to investigate the sense in which the preservation of
+liberty requires that the three great departments of power should
+be separate and distinct. The oracle who is always consulted and
+cited on this subject is the celebrated Montesquieu. If he be not
+the author of this invaluable precept in the science of politics,
+he has the merit at least of displaying and recommending it most
+effectually to the attention of mankind. Let us endeavor, in the
+first place, to ascertain his meaning on this point. The British
+Constitution was to Montesquieu what Homer has been to the
+didactic writers on epic poetry. As the latter have considered
+the work of the immortal bard as the perfect model from which the
+principles and rules of the epic art were to be drawn, and by
+which all similar works were to be judged, so this great
+political critic appears to have viewed the Constitution of
+England as the standard, or to use his own expression, as the
+mirror of political liberty; and to have delivered, in the form
+of elementary truths, the several characteristic principles of
+that particular system. That we may be sure, then, not to mistake
+his meaning in this case, let us recur to the source from which
+the maxim was drawn.
+ On the slightest view of the British
+Constitution, we must perceive that the legislative, executive,
+and judiciary departments are by no means totally separate and
+distinct from each other. The executive magistrate forms an
+integral part of the legislative authority. He alone has the
+prerogative of making treaties with foreign sovereigns, which,
+when made, have, under certain limitations, the force of
+legislative acts. All the members of the judiciary department are
+appointed by him, can be removed by him on the address of the two
+Houses of Parliament, and form, when he pleases to consult them,
+one of his constitutional councils. One branch of the legislative
+department forms also a great constitutional council to the
+executive chief, as, on another hand, it is the sole depositary
+of judicial power in cases of impeachment, and is invested with
+the supreme appellate jurisdiction in all other cases. The
+judges, again, are so far connected with the legislative
+department as often to attend and participate in its
+deliberations, though not admitted to a legislative vote. From
+these facts, by which Montesquieu was guided, it may clearly be
+inferred that, in saying ``There can be no liberty where the
+legislative and executive powers are united in the same person,
+or body of magistrates,'' or, ``if the power of judging be not
+separated from the legislative and executive powers,'' he did not
+mean that these departments ought to have no PARTIAL AGENCY in,
+or no CONTROL over, the acts of each other. His meaning, as his
+own words import, and still more conclusively as illustrated by
+the example in his eye, can amount to no more than this, that
+where the WHOLE power of one department is exercised by the same
+hands which possess the WHOLE power of another department, the
+fundamental principles of a free constitution are subverted. This
+would have been the case in the constitution examined by him, if
+the king, who is the sole executive magistrate, had possessed
+also the complete legislative power, or the supreme
+administration of justice; or if the entire legislative body had
+possessed the supreme judiciary, or the supreme executive
+authority. This, however, is not among the vices of that
+constitution. The magistrate in whom the whole executive power
+resides cannot of himself make a law, though he can put a
+negative on every law; nor administer justice in person, though
+he has the appointment of those who do administer it. The judges
+can exercise no executive prerogative, though they are shoots
+from the executive stock; nor any legislative function, though
+they may be advised with by the legislative councils. The entire
+legislature can perform no judiciary act, though by the joint act
+of two of its branches the judges may be removed from their
+offices, and though one of its branches is possessed of the
+judicial power in the last resort. The entire legislature, again,
+can exercise no executive prerogative, though one of its branches
+constitutes the supreme executive magistracy, and another, on the
+impeachment of a third, can try and condemn all the subordinate
+officers in the executive department. The reasons on which
+Montesquieu grounds his maxim are a further demonstration of his
+meaning. ``When the legislative and executive powers are united
+in the same person or body,'' says he, ``there can be no liberty,
+because apprehensions may arise lest THE SAME monarch or senate
+should ENACT tyrannical laws to EXECUTE them in a tyrannical
+manner. '' Again: ``Were the power of judging joined with the
+legislative, the life and liberty of the subject would be exposed
+to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
+Were it joined to the executive power, THE JUDGE might behave
+with all the violence of AN OPPRESSOR. '' Some of these reasons
+are more fully explained in other passages; but briefly stated as
+they are here, they sufficiently establish the meaning which we
+have put on this celebrated maxim of this celebrated author.
+
+If we look into the constitutions of the several States, we find
+that, notwithstanding the emphatical and, in some instances, the
+unqualified terms in which this axiom has been laid down, there
+is not a single instance in which the several departments of
+power have been kept absolutely separate and distinct. New
+Hampshire, whose constitution was the last formed, seems to have
+been fully aware of the impossibility and inexpediency of
+avoiding any mixture whatever of these departments, and has
+qualified the doctrine by declaring ``that the legislative,
+executive, and judiciary powers ought to be kept as separate
+from, and independent of, each other AS THE NATURE OF A FREE
+GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF
+CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE
+INDISSOLUBLE BOND OF UNITY AND AMITY. '' Her constitution
+accordingly mixes these departments in several respects. The
+Senate, which is a branch of the legislative department, is also
+a judicial tribunal for the trial of impeachments. The
+President, who is the head of the executive department, is the
+presiding member also of the Senate; and, besides an equal vote
+in all cases, has a casting vote in case of a tie. The executive
+head is himself eventually elective every year by the
+legislative department, and his council is every year chosen by
+and from the members of the same department. Several of the
+officers of state are also appointed by the legislature. And the
+members of the judiciary department are appointed by the
+executive department. The constitution of Massachusetts has
+observed a sufficient though less pointed caution, in expressing
+this fundamental article of liberty. It declares ``that the
+legislative department shall never exercise the executive and
+judicial powers, or either of them; the executive shall never
+exercise the legislative and judicial powers, or either of them;
+the judicial shall never exercise the legislative and executive
+powers, or either of them. '' This declaration corresponds
+precisely with the doctrine of Montesquieu, as it has been
+explained, and is not in a single point violated by the plan of
+the convention. It goes no farther than to prohibit any one of
+the entire departments from exercising the powers of another
+department. In the very Constitution to which it is prefixed, a
+partial mixture of powers has been admitted. The executive
+magistrate has a qualified negative on the legislative body, and
+the Senate, which is a part of the legislature, is a court of
+impeachment for members both of the executive and judiciary
+departments. The members of the judiciary department, again, are
+appointable by the executive department, and removable by the
+same authority on the address of the two legislative branches.
+Lastly, a number of the officers of government are annually
+appointed by the legislative department. As the appointment to
+offices, particularly executive offices, is in its nature an
+executive function, the compilers of the Constitution have, in
+this last point at least, violated the rule established by
+themselves. I pass over the constitutions of Rhode Island and
+Connecticut, because they were formed prior to the Revolution,
+and even before the principle under examination had become an
+object of political attention. The constitution of New York
+contains no declaration on this subject; but appears very
+clearly to have been framed with an eye to the danger of
+improperly blending the different departments. It gives,
+nevertheless, to the executive magistrate, a partial control over
+the legislative department; and, what is more, gives a like
+control to the judiciary department; and even blends the
+executive and judiciary departments in the exercise of this
+control. In its council of appointment members of the
+legislative are associated with the executive authority, in the
+appointment of officers, both executive and judiciary. And its
+court for the trial of impeachments and correction of errors is
+to consist of one branch of the legislature and the principal
+members of the judiciary department. The constitution of New
+Jersey has blended the different powers of government more than
+any of the preceding. The governor, who is the executive
+magistrate, is appointed by the legislature; is chancellor and
+ordinary, or surrogate of the State; is a member of the Supreme
+Court of Appeals, and president, with a casting vote, of one of
+the legislative branches. The same legislative branch acts again
+as executive council of the governor, and with him constitutes
+the Court of Appeals. The members of the judiciary department are
+appointed by the legislative department and removable by one
+branch of it, on the impeachment of the other. According to the
+constitution of Pennsylvania, the president, who is the head of
+the executive department, is annually elected by a vote in which
+the legislative department predominates. In conjunction with an
+executive council, he appoints the members of the judiciary
+department, and forms a court of impeachment for trial of all
+officers, judiciary as well as executive. The judges of the
+Supreme Court and justices of the peace seem also to be removable
+by the legislature; and the executive power of pardoning in
+certain cases, to be referred to the same department. The members
+of the executive council are made EX-OFFICIO justices of peace
+throughout the State. In Delaware, the chief executive magistrate
+is annually elected by the legislative department. The speakers
+of the two legislative branches are vice-presidents in the
+executive department. The executive chief, with six others,
+appointed, three by each of the legislative branches constitutes
+the Supreme Court of Appeals; he is joined with the legislative
+department in the appointment of the other judges. Throughout the
+States, it appears that the members of the legislature may at the
+same time be justices of the peace; in this State, the members of
+one branch of it are EX-OFFICIO justices of the peace; as are
+also the members of the executive council. The principal officers
+of the executive department are appointed by the legislative; and
+one branch of the latter forms a court of impeachments. All
+officers may be removed on address of the legislature. Maryland
+has adopted the maxim in the most unqualified terms; declaring
+that the legislative, executive, and judicial powers of
+government ought to be forever separate and distinct from each
+other. Her constitution, notwithstanding, makes the executive
+magistrate appointable by the legislative department; and the
+members of the judiciary by the executive department. The
+language of Virginia is still more pointed on this subject. Her
+constitution declares, ``that the legislative, executive, and
+judiciary departments shall be separate and distinct; so that
+neither exercise the powers properly belonging to the other; nor
+shall any person exercise the powers of more than one of them at
+the same time, except that the justices of county courts shall be
+eligible to either House of Assembly. '' Yet we find not only
+this express exception, with respect to the members of the
+inferior courts, but that the chief magistrate, with his
+executive council, are appointable by the legislature; that two
+members of the latter are triennially displaced at the pleasure
+of the legislature; and that all the principal offices, both
+executive and judiciary, are filled by the same department. The
+executive prerogative of pardon, also, is in one case vested in
+the legislative department. The constitution of North Carolina,
+which declares ``that the legislative, executive, and supreme
+judicial powers of government ought to be forever separate and
+distinct from each other,'' refers, at the same time, to the
+legislative department, the appointment not only of the executive
+chief, but all the principal officers within both that and the
+judiciary department. In South Carolina, the constitution makes
+the executive magistracy eligible by the legislative department.
+It gives to the latter, also, the appointment of the members of
+the judiciary department, including even justices of the peace
+and sheriffs; and the appointment of officers in the executive
+department, down to captains in the army and navy of the State.
+In the constitution of Georgia, where it is declared ``that the
+legislative, executive, and judiciary departments shall be
+separate and distinct, so that neither exercise the powers
+properly belonging to the other,'' we find that the executive
+department is to be filled by appointments of the legislature;
+and the executive prerogative of pardon to be finally exercised
+by the same authority. Even justices of the peace are to be
+appointed by the legislature. In citing these cases, in which
+the legislative, executive, and judiciary departments have not
+been kept totally separate and distinct, I wish not to be
+regarded as an advocate for the particular organizations of the
+several State governments. I am fully aware that among the many
+excellent principles which they exemplify, they carry strong
+marks of the haste, and still stronger of the inexperience, under
+which they were framed. It is but too obvious that in some
+instances the fundamental principle under consideration has been
+violated by too great a mixture, and even an actual
+consolidation, of the different powers; and that in no instance
+has a competent provision been made for maintaining in practice
+the separation delineated on paper. What I have wished to evince
+is, that the charge brought against the proposed Constitution, of
+violating the sacred maxim of free government, is warranted
+neither by the real meaning annexed to that maxim by its author,
+nor by the sense in which it has hitherto been understood in
+America. This interesting subject will be resumed in the ensuing
+paper. PUBLIUS.
+
+
+FEDERALIST No. 48
+
+These Departments Should Not Be So Far Separated as to Have No
+Constitutional Control Over Each Other
+From the New York Packet. Friday, February 1, 1788.
+
+MADISON
+
+To the People of the State of New York:
+IT WAS shown in the last paper that the political apothegm there
+examined does not require that the legislative, executive, and
+judiciary departments should be wholly unconnected with each
+other. I shall undertake, in the next place, to show that unless
+these departments be so far connected and blended as to give to
+each a constitutional control over the others, the degree of
+separation which the maxim requires, as essential to a free
+government, can never in practice be duly maintained. It is
+agreed on all sides, that the powers properly belonging to one of
+the departments ought not to be directly and completely
+administered by either of the other departments. It is equally
+evident, that none of them ought to possess, directly or
+indirectly, an overruling influence over the others, in the
+administration of their respective powers. It will not be denied,
+that power is of an encroaching nature, and that it ought to be
+effectually restrained from passing the limits assigned to it.
+After discriminating, therefore, in theory, the several classes
+of power, as they may in their nature be legislative, executive,
+or judiciary, the next and most difficult task is to provide some
+practical security for each, against the invasion of the others.
+What this security ought to be, is the great problem to be
+solved. Will it be sufficient to mark, with precision, the
+boundaries of these departments, in the constitution of the
+government, and to trust to these parchment barriers against the
+encroaching spirit of power? This is the security which appears
+to have been principally relied on by the compilers of most of
+the American constitutions. But experience assures us, that the
+efficacy of the provision has been greatly overrated; and that
+some more adequate defense is indispensably necessary for the
+more feeble, against the more powerful, members of the
+government. The legislative department is everywhere extending
+the sphere of its activity, and drawing all power into its
+impetuous vortex. The founders of our republics have so much
+merit for the wisdom which they have displayed, that no task can
+be less pleasing than that of pointing out the errors into which
+they have fallen. A respect for truth, however, obliges us to
+remark, that they seem never for a moment to have turned their
+eyes from the danger to liberty from the overgrown and
+all-grasping prerogative of an hereditary magistrate, supported
+and fortified by an hereditary branch of the legislative
+authority. They seem never to have recollected the danger from
+legislative usurpations, which, by assembling all power in the
+same hands, must lead to the same tyranny as is threatened by
+executive usurpations. In a government where numerous and
+extensive prerogatives are placed in the hands of an hereditary
+monarch, the executive department is very justly regarded as the
+source of danger, and watched with all the jealousy which a zeal
+for liberty ought to inspire. In a democracy, where a multitude
+of people exercise in person the legislative functions, and are
+continually exposed, by their incapacity for regular deliberation
+and concerted measures, to the ambitious intrigues of their
+executive magistrates, tyranny may well be apprehended, on some
+favorable emergency, to start up in the same quarter. But in a
+representative republic, where the executive magistracy is
+carefully limited; both in the extent and the duration of its
+power; and where the legislative power is exercised by an
+assembly, which is inspired, by a supposed influence over the
+people, with an intrepid confidence in its own strength; which is
+sufficiently numerous to feel all the passions which actuate a
+multitude, yet not so numerous as to be incapable of pursuing the
+objects of its passions, by means which reason prescribes; it is
+against the enterprising ambition of this department that the
+people ought to indulge all their jealousy and exhaust all their
+precautions. The legislative department derives a superiority in
+our governments from other circumstances. Its constitutional
+powers being at once more extensive, and less susceptible of
+precise limits, it can, with the greater facility, mask, under
+complicated and indirect measures, the encroachments which it
+makes on the co-ordinate departments. It is not unfrequently a
+question of real nicety in legislative bodies, whether the
+operation of a particular measure will, or will not, extend
+beyond the legislative sphere. On the other side, the executive
+power being restrained within a narrower compass, and being more
+simple in its nature, and the judiciary being described by
+landmarks still less uncertain, projects of usurpation by either
+of these departments would immediately betray and defeat
+themselves. Nor is this all: as the legislative department alone
+has access to the pockets of the people, and has in some
+constitutions full discretion, and in all a prevailing influence,
+over the pecuniary rewards of those who fill the other
+departments, a dependence is thus created in the latter, which
+gives still greater facility to encroachments of the former. I
+have appealed to our own experience for the truth of what I
+advance on this subject. Were it necessary to verify this
+experience by particular proofs, they might be multiplied
+without end. I might find a witness in every citizen who has
+shared in, or been attentive to, the course of public
+administrations. I might collect vouchers in abundance from the
+records and archives of every State in the Union. But as a more
+concise, and at the same time equally satisfactory, evidence, I
+will refer to the example of two States, attested by two
+unexceptionable authorities. The first example is that of
+Virginia, a State which, as we have seen, has expressly declared
+in its constitution, that the three great departments ought not
+to be intermixed. The authority in support of it is Mr.
+Jefferson, who, besides his other advantages for remarking the
+operation of the government, was himself the chief magistrate of
+it. In order to convey fully the ideas with which his experience
+had impressed him on this subject, it will be necessary to quote
+a passage of some length from his very interesting ``Notes on the
+State of Virginia,'' p. 195. ``All the powers of government,
+legislative, executive, and judiciary, result to the legislative
+body. The concentrating these in the same hands, is precisely the
+definition of despotic government. It will be no alleviation,
+that these powers will be exercised by a plurality of hands, and
+not by a single one. One hundred and seventy-three despots would
+surely be as oppressive as one. Let those who doubt it, turn
+their eyes on the republic of Venice. As little will it avail us,
+that they are chosen by ourselves. An ELECTIVE DESPOTISM was not
+the government we fought for; but one which should not only be
+founded on free principles, but in which the powers of government
+should be so divided and balanced among several bodies of
+magistracy, as that no one could transcend their legal limits,
+without being effectually checked and restrained by the others.
+For this reason, that convention which passed the ordinance of
+government, laid its foundation on this basis, that the
+legislative, executive, and judiciary departments should be
+separate and distinct, so that no person should exercise the
+powers of more than one of them at the same time. BUT NO BARRIER
+WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the
+executive members were left dependent on the legislative for
+their subsistence in office, and some of them for their
+continuance in it. If, therefore, the legislature assumes
+executive and judiciary powers, no opposition is likely to be
+made; nor, if made, can be effectual; because in that case they
+may put their proceedings into the form of acts of Assembly,
+which will render them obligatory on the other branches. They
+have accordingly, IN MANY instances, DECIDED RIGHTS which should
+have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE
+EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING
+HABITUAL AND FAMILIAR. ''The other State which I shall take for
+an example is Pennsylvania; and the other authority, the Council
+of Censors, which assembled in the years 1783 and 1784. A part of
+the duty of this body, as marked out by the constitution, was
+``to inquire whether the constitution had been preserved
+inviolate in every part; and whether the legislative and
+executive branches of government had performed their duty as
+guardians of the people, or assumed to themselves, or exercised,
+other or greater powers than they are entitled to by the
+constitution. '' In the execution of this trust, the council were
+necessarily led to a comparison of both the legislative and
+executive proceedings, with the constitutional powers of these
+departments; and from the facts enumerated, and to the truth of
+most of which both sides in the council subscribed, it appears
+that the constitution had been flagrantly violated by the
+legislature in a variety of important instances. A great number
+of laws had been passed, violating, without any apparent
+necessity, the rule requiring that all bills of a public nature
+shall be previously printed for the consideration of the people;
+although this is one of the precautions chiefly relied on by the
+constitution against improper acts of legislature. The
+constitutional trial by jury had been violated, and powers
+assumed which had not been delegated by the constitution.
+Executive powers had been usurped. The salaries of the judges,
+which the constitution expressly requires to be fixed, had been
+occasionally varied; and cases belonging to the judiciary
+department frequently drawn within legislative cognizance and
+determination. Those who wish to see the several particulars
+falling under each of these heads, may consult the journals of
+the council, which are in print. Some of them, it will be found,
+may be imputable to peculiar circumstances connected with the
+war; but the greater part of them may be considered as the
+spontaneous shoots of an ill-constituted government. It appears,
+also, that the executive department had not been innocent of
+frequent breaches of the constitution. There are three
+observations, however, which ought to be made on this head:
+FIRST, a great proportion of the instances were either
+immediately produced by the necessities of the war, or
+recommended by Congress or the commander-in-chief; SECONDLY, in
+most of the other instances, they conformed either to the
+declared or the known sentiments of the legislative department;
+THIRDLY, the executive department of Pennsylvania is
+distinguished from that of the other States by the number of
+members composing it. In this respect, it has as much affinity
+to a legislative assembly as to an executive council. And being
+at once exempt from the restraint of an individual responsibility
+for the acts of the body, and deriving confidence from mutual
+example and joint influence, unauthorized measures would, of
+course, be more freely hazarded, than where the executive
+department is administered by a single hand, or by a few hands.
+The conclusion which I am warranted in drawing from these
+observations is, that a mere demarcation on parchment of the
+constitutional limits of the several departments, is not a
+sufficient guard against those encroachments which lead to a
+tyrannical concentration of all the powers of government in the
+same hands. PUBLIUS.
+
+
+FEDERALIST No. 49
+
+Method of Guarding Against the Encroachments of Any One
+Department of Government by Appealing to the People Through a
+Convention
+From the New York Packet. Tuesday, February 5, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+THE author of the ``Notes on the State of Virginia,'' quoted in
+the last paper, has subjoined to that valuable work the draught
+of a constitution, which had been prepared in order to be laid
+before a convention, expected to be called in 1783, by the
+legislature, for the establishment of a constitution for that
+commonwealth. The plan, like every thing from the same pen, marks
+a turn of thinking, original, comprehensive, and accurate; and is
+the more worthy of attention as it equally displays a fervent
+attachment to republican government and an enlightened view of
+the dangerous propensities against which it ought to be guarded.
+One of the precautions which he proposes, and on which he appears
+ultimately to rely as a palladium to the weaker departments of
+power against the invasions of the stronger, is perhaps
+altogether his own, and as it immediately relates to the subject
+of our present inquiry, ought not to be overlooked. His
+proposition is, ``that whenever any two of the three branches of
+government shall concur in opinion, each by the voices of two
+thirds of their whole number, that a convention is necessary for
+altering the constitution, or CORRECTING BREACHES OF IT, a
+convention shall be called for the purpose. ''As the people are
+the only legitimate fountain of power, and it is from them that
+the constitutional charter, under which the several branches of
+government hold their power, is derived, it seems strictly
+consonant to the republican theory, to recur to the same original
+authority, not only whenever it may be necessary to enlarge,
+diminish, or new-model the powers of the government, but also
+whenever any one of the departments may commit encroachments on
+the chartered authorities of the others. The several departments
+being perfectly co-ordinate by the terms of their common
+commission, none of them, it is evident, can pretend to an
+exclusive or superior right of settling the boundaries between
+their respective powers; and how are the encroachments of the
+stronger to be prevented, or the wrongs of the weaker to be
+redressed, without an appeal to the people themselves, who, as
+the grantors of the commissions, can alone declare its true
+meaning, and enforce its observance? There is certainly great
+force in this reasoning, and it must be allowed to prove that a
+constitutional road to the decision of the people ought to be
+marked out and kept open, for certain great and extraordinary
+occasions. But there appear to be insuperable objections against
+the proposed recurrence to the people, as a provision in all
+cases for keeping the several departments of power within their
+constitutional limits. In the first place, the provision does not
+reach the case of a combination of two of the departments against
+the third. If the legislative authority, which possesses so many
+means of operating on the motives of the other departments,
+should be able to gain to its interest either of the others, or
+even one third of its members, the remaining department could
+derive no advantage from its remedial provision. I do not dwell,
+however, on this objection, because it may be thought to be
+rather against the modification of the principle, than against
+the principle itself. In the next place, it may be considered as
+an objection inherent in the principle, that as every appeal to
+the people would carry an implication of some defect in the
+government, frequent appeals would, in a great measure, deprive
+the government of that veneration which time bestows on every
+thing, and without which perhaps the wisest and freest
+governments would not possess the requisite stability. If it be
+true that all governments rest on opinion, it is no less true
+that the strength of opinion in each individual, and its
+practical influence on his conduct, depend much on the number
+which he supposes to have entertained the same opinion. The
+reason of man, like man himself, is timid and cautious when left
+alone, and acquires firmness and confidence in proportion to the
+number with which it is associated. When the examples which
+fortify opinion are ANCIENT as well as NUMEROUS, they are known
+to have a double effect. In a nation of philosophers, this
+consideration ought to be disregarded. A reverence for the laws
+would be sufficiently inculcated by the voice of an enlightened
+reason. But a nation of philosophers is as little to be expected
+as the philosophical race of kings wished for by Plato. And in
+every other nation, the most rational government will not find it
+a superfluous advantage to have the prejudices of the community
+on its side. The danger of disturbing the public tranquillity by
+interesting too strongly the public passions, is a still more
+serious objection against a frequent reference of constitutional
+questions to the decision of the whole society. Notwithstanding
+the success which has attended the revisions of our established
+forms of government, and which does so much honor to the virtue
+and intelligence of the people of America, it must be confessed
+that the experiments are of too ticklish a nature to be
+unnecessarily multiplied. We are to recollect that all the
+existing constitutions were formed in the midst of a danger which
+repressed the passions most unfriendly to order and concord; of
+an enthusiastic confidence of the people in their patriotic
+leaders, which stifled the ordinary diversity of opinions on
+great national questions; of a universal ardor for new and
+opposite forms, produced by a universal resentment and
+indignation against the ancient government; and whilst no spirit
+of party connected with the changes to be made, or the abuses to
+be reformed, could mingle its leaven in the operation. The future
+situations in which we must expect to be usually placed, do not
+present any equivalent security against the danger which is
+apprehended. But the greatest objection of all is, that the
+decisions which would probably result from such appeals would not
+answer the purpose of maintaining the constitutional equilibrium
+of the government. We have seen that the tendency of republican
+governments is to an aggrandizement of the legislative at the
+expense of the other departments. The appeals to the people,
+therefore, would usually be made by the executive and judiciary
+departments. But whether made by one side or the other, would
+each side enjoy equal advantages on the trial? Let us view their
+different situations. The members of the executive and judiciary
+departments are few in number, and can be personally known to a
+small part only of the people. The latter, by the mode of their
+appointment, as well as by the nature and permanency of it, are
+too far removed from the people to share much in their
+prepossessions. The former are generally the objects of jealousy,
+and their administration is always liable to be discolored and
+rendered unpopular. The members of the legislative department, on
+the other hand, are numberous. They are distributed and dwell
+among the people at large. Their connections of blood, of
+friendship, and of acquaintance embrace a great proportion of the
+most influential part of the society. The nature of their public
+trust implies a personal influence among the people, and that
+they are more immediately the confidential guardians of the
+rights and liberties of the people. With these advantages, it can
+hardly be supposed that the adverse party would have an equal
+chance for a favorable issue. But the legislative party would not
+only be able to plead their cause most successfully with the
+people. They would probably be constituted themselves the judges.
+The same influence which had gained them an election into the
+legislature, would gain them a seat in the convention. If this
+should not be the case with all, it would probably be the case
+with many, and pretty certainly with those leading characters, on
+whom every thing depends in such bodies. The convention, in
+short, would be composed chiefly of men who had been, who
+actually were, or who expected to be, members of the department
+whose conduct was arraigned. They would consequently be parties
+to the very question to be decided by them. It might, however,
+sometimes happen, that appeals would be made under circumstances
+less adverse to the executive and judiciary departments. The
+usurpations of the legislature might be so flagrant and so
+sudden, as to admit of no specious coloring. A strong party
+among themselves might take side with the other branches. The
+executive power might be in the hands of a peculiar favorite of
+the people. In such a posture of things, the public decision
+might be less swayed by prepossessions in favor of the
+legislative party. But still it could never be expected to turn
+on the true merits of the question. It would inevitably be
+connected with the spirit of pre-existing parties, or of parties
+springing out of the question itself. It would be connected with
+persons of distinguished character and extensive influence in the
+community. It would be pronounced by the very men who had been
+agents in, or opponents of, the measures to which the decision
+would relate. The PASSIONS, therefore, not the REASON, of the
+public would sit in judgment. But it is the reason, alone, of the
+public, that ought to control and regulate the government. The
+passions ought to be controlled and regulated by the government.
+We found in the last paper, that mere declarations in the written
+constitution are not sufficient to restrain the several
+departments within their legal rights. It appears in this, that
+occasional appeals to the people would be neither a proper nor an
+effectual provision for that purpose. How far the provisions of a
+different nature contained in the plan above quoted might be
+adequate, I do not examine. Some of them are unquestionably
+founded on sound political principles, and all of them are framed
+with singular ingenuity and precision. PUBLIUS.
+
+
+FEDERALIST No. 50
+
+Periodical Appeals to the People Considered
+From the New York Packet. Tuesday, February 5, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+IT MAY be contended, perhaps, that instead of OCCASIONAL appeals
+to the people, which are liable to the objections urged against
+them, PERIODICAL appeals are the proper and adequate means of
+PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It
+will be attended to, that in the examination of these expedients,
+I confine myself to their aptitude for ENFORCING the
+Constitution, by keeping the several departments of power within
+their due bounds, without particularly considering them as
+provisions for ALTERING the Constitution itself. In the first
+view, appeals to the people at fixed periods appear to be nearly
+as ineligible as appeals on particular occasions as they emerge.
+If the periods be separated by short intervals, the measures to
+be reviewed and rectified will have been of recent date, and will
+be connected with all the circumstances which tend to vitiate and
+pervert the result of occasional revisions. If the periods be
+distant from each other, the same remark will be applicable to
+all recent measures; and in proportion as the remoteness of the
+others may favor a dispassionate review of them, this advantage
+is inseparable from inconveniences which seem to counterbalance
+it. In the first place, a distant prospect of public censure
+would be a very feeble restraint on power from those excesses to
+which it might be urged by the force of present motives. Is it to
+be imagined that a legislative assembly, consisting of a hundred
+or two hundred members, eagerly bent on some favorite object, and
+breaking through the restraints of the Constitution in pursuit of
+it, would be arrested in their career, by considerations drawn
+from a censorial revision of their conduct at the future distance
+of ten, fifteen, or twenty years? In the next place, the abuses
+would often have completed their mischievous effects before the
+remedial provision would be applied. And in the last place, where
+this might not be the case, they would be of long standing, would
+have taken deep root, and would not easily be extirpated. The
+scheme of revising the constitution, in order to correct recent
+breaches of it, as well as for other purposes, has been actually
+tried in one of the States. One of the objects of the Council of
+Censors which met in Pennsylvania in 1783 and 1784, was, as we
+have seen, to inquire, ``whether the constitution had been
+violated, and whether the legislative and executive departments
+had encroached upon each other. '' This important and novel
+experiment in politics merits, in several points of view, very
+particular attention. In some of them it may, perhaps, as a
+single experiment, made under circumstances somewhat peculiar, be
+thought to be not absolutely conclusive. But as applied to the
+case under consideration, it involves some facts, which I venture
+to remark, as a complete and satisfactory illustration of the
+reasoning which I have employed. First. It appears, from the
+names of the gentlemen who composed the council, that some, at
+least, of its most active members had also been active and
+leading characters in the parties which pre-existed in the State.
+Secondly. It appears that the same active and leading members of
+the council had been active and influential members of the
+legislative and executive branches, within the period to be
+reviewed; and even patrons or opponents of the very measures to
+be thus brought to the test of the constitution. Two of the
+members had been vice-presidents of the State, and several other
+members of the executive council, within the seven preceding
+years. One of them had been speaker, and a number of others
+distinguished members, of the legislative assembly within the
+same period. Thirdly. Every page of their proceedings witnesses
+the effect of all these circumstances on the temper of their
+deliberations. Throughout the continuance of the council, it was
+split into two fixed and violent parties. The fact is
+acknowledged and lamented by themselves. Had this not been the
+case, the face of their proceedings exhibits a proof equally
+satisfactory. In all questions, however unimportant in
+themselves, or unconnected with each other, the same names stand
+invariably contrasted on the opposite columns. Every unbiased
+observer may infer, without danger of mistake, and at the same
+time without meaning to reflect on either party, or any
+individuals of either party, that, unfortunately, PASSION, not
+REASON, must have presided over their decisions. When men
+exercise their reason coolly and freely on a variety of distinct
+questions, they inevitably fall into different opinions on some
+of them. When they are governed by a common passion, their
+opinions, if they are so to be called, will be the same.
+Fourthly. It is at least problematical, whether the decisions of
+this body do not, in several instances, misconstrue the limits
+prescribed for the legislative and executive departments, instead
+of reducing and limiting them within their constitutional places.
+Fifthly. I have never understood that the decisions of the
+council on constitutional questions, whether rightly or
+erroneously formed, have had any effect in varying the practice
+founded on legislative constructions. It even appears, if I
+mistake not, that in one instance the contemporary legislature
+denied the constructions of the council, and actually prevailed
+in the contest. This censorial body, therefore, proves at the
+same time, by its researches, the existence of the disease, and
+by its example, the inefficacy of the remedy. This conclusion
+cannot be invalidated by alleging that the State in which the
+experiment was made was at that crisis, and had been for a long
+time before, violently heated and distracted by the rage of
+party. Is it to be presumed, that at any future septennial epoch
+the same State will be free from parties? Is it to be presumed
+that any other State, at the same or any other given period, will
+be exempt from them? Such an event ought to be neither presumed
+nor desired; because an extinction of parties necessarily implies
+either a universal alarm for the public safety, or an absolute
+extinction of liberty. Were the precaution taken of excluding
+from the assemblies elected by the people, to revise the
+preceding administration of the government, all persons who
+should have been concerned with the government within the given
+period, the difficulties would not be obviated. The important
+task would probably devolve on men, who, with inferior
+capacities, would in other respects be little better qualified.
+Although they might not have been personally concerned in the
+administration, and therefore not immediately agents in the
+measures to be examined, they would probably have been involved
+in the parties connected with these measures, and have been
+elected under their auspices. PUBLIUS.
+
+
+FEDERALIST No. 51
+
+The Structure of the Government Must Furnish the Proper Checks
+and Balances Between the Different Departments
+From the New York Packet. Friday, February 8, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+TO WHAT expedient, then, shall we finally resort, for maintaining
+in practice the necessary partition of power among the several
+departments, as laid down in the Constitution? The only answer
+that can be given is, that as all these exterior provisions are
+found to be inadequate, the defect must be supplied, by so
+contriving the interior structure of the government as that its
+several constituent parts may, by their mutual relations, be the
+means of keeping each other in their proper places. Without
+presuming to undertake a full development of this important idea,
+I will hazard a few general observations, which may perhaps place
+it in a clearer light, and enable us to form a more correct
+judgment of the principles and structure of the government
+planned by the convention. In order to lay a due foundation for
+that separate and distinct exercise of the different powers of
+government, which to a certain extent is admitted on all hands to
+be essential to the preservation of liberty, it is evident that
+each department should have a will of its own; and consequently
+should be so constituted that the members of each should have as
+little agency as possible in the appointment of the members of
+the others. Were this principle rigorously adhered to, it would
+require that all the appointments for the supreme executive,
+legislative, and judiciary magistracies should be drawn from the
+same fountain of authority, the people, through channels having
+no communication whatever with one another. Perhaps such a plan
+of constructing the several departments would be less difficult
+in practice than it may in contemplation appear. Some
+difficulties, however, and some additional expense would attend
+the execution of it. Some deviations, therefore, from the
+principle must be admitted. In the constitution of the judiciary
+department in particular, it might be inexpedient to insist
+rigorously on the principle: first, because peculiar
+qualifications being essential in the members, the primary
+consideration ought to be to select that mode of choice which
+best secures these qualifications; secondly, because the
+permanent tenure by which the appointments are held in that
+department, must soon destroy all sense of dependence on the
+authority conferring them. It is equally evident, that the
+members of each department should be as little dependent as
+possible on those of the others, for the emoluments annexed to
+their offices. Were the executive magistrate, or the judges, not
+independent of the legislature in this particular, their
+independence in every other would be merely nominal. But the
+great security against a gradual concentration of the several
+powers in the same department, consists in giving to those who
+administer each department the necessary constitutional means and
+personal motives to resist encroachments of the others. The
+provision for defense must in this, as in all other cases, be
+made commensurate to the danger of attack. Ambition must be made
+to counteract ambition. The interest of the man must be
+connected with the constitutional rights of the place. It may be
+a reflection on human nature, that such devices should be
+necessary to control the abuses of government. But what is
+government itself, but the greatest of all reflections on human
+nature? If men were angels, no government would be necessary. If
+angels were to govern men, neither external nor internal
+controls on government would be necessary. In framing a
+government which is to be administered by men over men, the great
+difficulty lies in this: you must first enable the government to
+control the governed; and in the next place oblige it to control
+itself. A dependence on the people is, no doubt, the primary
+control on the government; but experience has taught mankind the
+necessity of auxiliary precautions. This policy of supplying, by
+opposite and rival interests, the defect of better motives, might
+be traced through the whole system of human affairs, private as
+well as public. We see it particularly displayed in all the
+subordinate distributions of power, where the constant aim is to
+divide and arrange the several offices in such a manner as that
+each may be a check on the other that the private interest of
+every individual may be a sentinel over the public rights. These
+inventions of prudence cannot be less requisite in the
+distribution of the supreme powers of the State. But it is not
+possible to give to each department an equal power of
+self-defense. In republican government, the legislative
+authority necessarily predominates. The remedy for this
+inconveniency is to divide the legislature into different
+branches; and to render them, by different modes of election and
+different principles of action, as little connected with each
+other as the nature of their common functions and their common
+dependence on the society will admit. It may even be necessary
+to guard against dangerous encroachments by still further
+precautions. As the weight of the legislative authority requires
+that it should be thus divided, the weakness of the executive may
+require, on the other hand, that it should be fortified. An
+absolute negative on the legislature appears, at first view, to
+be the natural defense with which the executive magistrate should
+be armed. But perhaps it would be neither altogether safe nor
+alone sufficient. On ordinary occasions it might not be exerted
+with the requisite firmness, and on extraordinary occasions it
+might be perfidiously abused. May not this defect of an absolute
+negative be supplied by some qualified connection between this
+weaker department and the weaker branch of the stronger
+department, by which the latter may be led to support the
+constitutional rights of the former, without being too much
+detached from the rights of its own department? If the principles
+on which these observations are founded be just, as I persuade
+myself they are, and they be applied as a criterion to the
+several State constitutions, and to the federal Constitution it
+will be found that if the latter does not perfectly correspond
+with them, the former are infinitely less able to bear such a
+test. There are, moreover, two considerations particularly
+applicable to the federal system of America, which place that
+system in a very interesting point of view. First. In a single
+republic, all the power surrendered by the people is submitted to
+the administration of a single government; and the usurpations
+are guarded against by a division of the government into distinct
+and separate departments. In the compound republic of America,
+the power surrendered by the people is first divided between two
+distinct governments, and then the portion allotted to each
+subdivided among distinct and separate departments. Hence a
+double security arises to the rights of the people. The different
+governments will control each other, at the same time that each
+will be controlled by itself. Second. It is of great importance
+in a republic not only to guard the society against the
+oppression of its rulers, but to guard one part of the society
+against the injustice of the other part. Different interests
+necessarily exist in different classes of citizens. If a
+majority be united by a common interest, the rights of the
+minority will be insecure. There are but two methods of
+providing against this evil: the one by creating a will in the
+community independent of the majority that is, of the society
+itself; the other, by comprehending in the society so many
+separate descriptions of citizens as will render an unjust
+combination of a majority of the whole very improbable, if not
+impracticable. The first method prevails in all governments
+possessing an hereditary or self-appointed authority. This, at
+best, is but a precarious security; because a power independent
+of the society may as well espouse the unjust views of the major,
+as the rightful interests of the minor party, and may possibly be
+turned against both parties. The second method will be
+exemplified in the federal republic of the United States. Whilst
+all authority in it will be derived from and dependent on the
+society, the society itself will be broken into so many parts,
+interests, and classes of citizens, that the rights of
+individuals, or of the minority, will be in little danger from
+interested combinations of the majority. In a free government
+the security for civil rights must be the same as that for
+religious rights. It consists in the one case in the
+multiplicity of interests, and in the other in the multiplicity
+of sects. The degree of security in both cases will depend on
+the number of interests and sects; and this may be presumed to
+depend on the extent of country and number of people comprehended
+under the same government. This view of the subject must
+particularly recommend a proper federal system to all the sincere
+and considerate friends of republican government, since it shows
+that in exact proportion as the territory of the Union may be
+formed into more circumscribed Confederacies, or States
+oppressive combinations of a majority will be facilitated: the
+best security, under the republican forms, for the rights of
+every class of citizens, will be diminished: and consequently the
+stability and independence of some member of the government, the
+only other security, must be proportionately increased. Justice
+is the end of government. It is the end of civil society. It
+ever has been and ever will be pursued until it be obtained, or
+until liberty be lost in the pursuit. In a society under the
+forms of which the stronger faction can readily unite and oppress
+the weaker, anarchy may as truly be said to reign as in a state
+of nature, where the weaker individual is not secured against the
+violence of the stronger; and as, in the latter state, even the
+stronger individuals are prompted, by the uncertainty of their
+condition, to submit to a government which may protect the weak
+as well as themselves; so, in the former state, will the more
+powerful factions or parties be gradually induced, by a like
+motive, to wish for a government which will protect all parties,
+the weaker as well as the more powerful. It can be little
+doubted that if the State of Rhode Island was separated from the
+Confederacy and left to itself, the insecurity of rights under
+the popular form of government within such narrow limits would be
+displayed by such reiterated oppressions of factious majorities
+that some power altogether independent of the people would soon
+be called for by the voice of the very factions whose misrule had
+proved the necessity of it. In the extended republic of the
+United States, and among the great variety of interests, parties,
+and sects which it embraces, a coalition of a majority of the
+whole society could seldom take place on any other principles
+than those of justice and the general good; whilst there being
+thus less danger to a minor from the will of a major party, there
+must be less pretext, also, to provide for the security of the
+former, by introducing into the government a will not dependent
+on the latter, or, in other words, a will independent of the
+society itself. It is no less certain than it is important,
+notwithstanding the contrary opinions which have been
+entertained, that the larger the society, provided it lie within
+a practical sphere, the more duly capable it will be of
+self-government. And happily for the REPUBLICAN CAUSE, the
+practicable sphere may be carried to a very great extent, by a
+judicious modification and mixture of the FEDERAL PRINCIPLE.
+PUBLIUS.
+
+
+FEDERALIST No. 52
+
+The House of Representatives
+From the New York Packet. Friday, February 8, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+FROM the more general inquiries pursued in the four last papers,
+I pass on to a more particular examination of the several parts
+of the government. I shall begin with the House of
+Representatives. The first view to be taken of this part of the
+government relates to the qualifications of the electors and the
+elected. Those of the former are to be the same with those of the
+electors of the most numerous branch of the State legislatures.
+The definition of the right of suffrage is very justly regarded
+as a fundamental article of republican government. It was
+incumbent on the convention, therefore, to define and establish
+this right in the Constitution. To have left it open for the
+occasional regulation of the Congress, would have been improper
+for the reason just mentioned. To have submitted it to the
+legislative discretion of the States, would have been improper
+for the same reason; and for the additional reason that it would
+have rendered too dependent on the State governments that branch
+of the federal government which ought to be dependent on the
+people alone. To have reduced the different qualifications in the
+different States to one uniform rule, would probably have been as
+dissatisfactory to some of the States as it would have been
+difficult to the convention. The provision made by the convention
+appears, therefore, to be the best that lay within their option.
+It must be satisfactory to every State, because it is conformable
+to the standard already established, or which may be established,
+by the State itself. It will be safe to the United States,
+because, being fixed by the State constitutions, it is not
+alterable by the State governments, and it cannot be feared that
+the people of the States will alter this part of their
+constitutions in such a manner as to abridge the rights secured
+to them by the federal Constitution. The qualifications of the
+elected, being less carefully and properly defined by the State
+constitutions, and being at the same time more susceptible of
+uniformity, have been very properly considered and regulated by
+the convention. A representative of the United States must be of
+the age of twenty-five years; must have been seven years a
+citizen of the United States; must, at the time of his election,
+be an inhabitant of the State he is to represent; and, during the
+time of his service, must be in no office under the United
+States. Under these reasonable limitations, the door of this part
+of the federal government is open to merit of every description,
+whether native or adoptive, whether young or old, and without
+regard to poverty or wealth, or to any particular profession of
+religious faith. The term for which the representatives are to be
+elected falls under a second view which may be taken of this
+branch. In order to decide on the propriety of this article, two
+questions must be considered: first, whether biennial elections
+will, in this case, be safe; secondly, whether they be necessary
+or useful. First. As it is essential to liberty that the
+government in general should have a common interest with the
+people, so it is particularly essential that the branch of it
+under consideration should have an immediate dependence on, and
+an intimate sympathy with, the people. Frequent elections are
+unquestionably the only policy by which this dependence and
+sympathy can be effectually secured. But what particular degree
+of frequency may be absolutely necessary for the purpose, does
+not appear to be susceptible of any precise calculation, and must
+depend on a variety of circumstances with which it may be
+connected. Let us consult experience, the guide that ought always
+to be followed whenever it can be found. The scheme of
+representation, as a substitute for a meeting of the citizens in
+person, being at most but very imperfectly known to ancient
+polity, it is in more modern times only that we are to expect
+instructive examples. And even here, in order to avoid a research
+too vague and diffusive, it will be proper to confine ourselves
+to the few examples which are best known, and which bear the
+greatest analogy to our particular case. The first to which this
+character ought to be applied, is the House of Commons in Great
+Britain. The history of this branch of the English Constitution,
+anterior to the date of Magna Charta, is too obscure to yield
+instruction. The very existence of it has been made a question
+among political antiquaries. The earliest records of subsequent
+date prove that parliaments were to SIT only every year; not that
+they were to be ELECTED every year. And even these annual
+sessions were left so much at the discretion of the monarch,
+that, under various pretexts, very long and dangerous
+intermissions were often contrived by royal ambition. To remedy
+this grievance, it was provided by a statute in the reign of
+Charles II. , that the intermissions should not be protracted
+beyond a period of three years. On the accession of William III.,
+when a revolution took place in the government, the subject was
+still more seriously resumed, and it was declared to be among the
+fundamental rights of the people that parliaments ought to be
+held FREQUENTLY. By another statute, which passed a few years
+later in the same reign, the term ``frequently,'' which had
+alluded to the triennial period settled in the time of Charles
+II., is reduced to a precise meaning, it being expressly enacted
+that a new parliament shall be called within three years after
+the termination of the former. The last change, from three to
+seven years, is well known to have been introduced pretty early
+in the present century, under on alarm for the Hanoverian
+succession. From these facts it appears that the greatest
+frequency of elections which has been deemed necessary in that
+kingdom, for binding the representatives to their constituents,
+does not exceed a triennial return of them. And if we may argue
+from the degree of liberty retained even under septennial
+elections, and all the other vicious ingredients in the
+parliamentary constitution, we cannot doubt that a reduction of
+the period from seven to three years, with the other necessary
+reforms, would so far extend the influence of the people over
+their representatives as to satisfy us that biennial elections,
+under the federal system, cannot possibly be dangerous to the
+requisite dependence of the House of Representatives on their
+constituents. Elections in Ireland, till of late, were regulated
+entirely by the discretion of the crown, and were seldom
+repeated, except on the accession of a new prince, or some other
+contingent event. The parliament which commenced with George II.
+was continued throughout his whole reign, a period of about
+thirty-five years. The only dependence of the representatives on
+the people consisted in the right of the latter to supply
+occasional vacancies by the election of new members, and in the
+chance of some event which might produce a general new election.
+The ability also of the Irish parliament to maintain the rights
+of their constituents, so far as the disposition might exist, was
+extremely shackled by the control of the crown over the subjects
+of their deliberation. Of late these shackles, if I mistake not,
+have been broken; and octennial parliaments have besides been
+established. What effect may be produced by this partial reform,
+must be left to further experience. The example of Ireland, from
+this view of it, can throw but little light on the subject. As
+far as we can draw any conclusion from it, it must be that if the
+people of that country have been able under all these
+disadvantages to retain any liberty whatever, the advantage of
+biennial elections would secure to them every degree of liberty,
+which might depend on a due connection between their
+representatives and themselves. Let us bring our inquiries nearer
+home. The example of these States, when British colonies, claims
+particular attention, at the same time that it is so well known
+as to require little to be said on it. The principle of
+representation, in one branch of the legislature at least, was
+established in all of them. But the periods of election were
+different. They varied from one to seven years. Have we any
+reason to infer, from the spirit and conduct of the
+representatives of the people, prior to the Revolution, that
+biennial elections would have been dangerous to the public
+liberties? The spirit which everywhere displayed itself at the
+commencement of the struggle, and which vanquished the obstacles
+to independence, is the best of proofs that a sufficient portion
+of liberty had been everywhere enjoyed to inspire both a sense of
+its worth and a zeal for its proper enlargement This remark holds
+good, as well with regard to the then colonies whose elections
+were least frequent, as to those whose elections were most
+frequent Virginia was the colony which stood first in resisting
+the parliamentary usurpations of Great Britain; it was the first
+also in espousing, by public act, the resolution of independence.
+In Virginia, nevertheless, if I have not been misinformed,
+elections under the former government were septennial. This
+particular example is brought into view, not as a proof of any
+peculiar merit, for the priority in those instances was probably
+accidental; and still less of any advantage in SEPTENNIAL
+elections, for when compared with a greater frequency they are
+inadmissible; but merely as a proof, and I conceive it to be a
+very substantial proof, that the liberties of the people can be
+in no danger from BIENNIAL elections. The conclusion resulting
+from these examples will be not a little strengthened by
+recollecting three circumstances. The first is, that the federal
+legislature will possess a part only of that supreme legislative
+authority which is vested completely in the British Parliament;
+and which, with a few exceptions, was exercised by the colonial
+assemblies and the Irish legislature. It is a received and
+well-founded maxim, that where no other circumstances affect the
+case, the greater the power is, the shorter ought to be its
+duration; and, conversely, the smaller the power, the more safely
+may its duration be protracted. In the second place, it has, on
+another occasion, been shown that the federal legislature will
+not only be restrained by its dependence on its people, as other
+legislative bodies are, but that it will be, moreover, watched
+and controlled by the several collateral legislatures, which
+other legislative bodies are not. And in the third place, no
+comparison can be made between the means that will be possessed
+by the more permanent branches of the federal government for
+seducing, if they should be disposed to seduce, the House of
+Representatives from their duty to the people, and the means of
+influence over the popular branch possessed by the other branches
+of the government above cited. With less power, therefore, to
+abuse, the federal representatives can be less tempted on one
+side, and will be doubly watched on the other. PUBLIUS.
+
+FEDERALIST No. 53
+
+The Same Subject Continued (The House of Representatives)
+From the New York Packet. Tuesday, February 12, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+I SHALL here, perhaps, be reminded of a current observation,
+``that where annual elections end, tyranny begins. '' If it be
+true, as has often been remarked, that sayings which become
+proverbial are generally founded in reason, it is not less true,
+that when once established, they are often applied to cases to
+which the reason of them does not extend. I need not look for a
+proof beyond the case before us. What is the reason on which this
+proverbial observation is founded? No man will subject himself to
+the ridicule of pretending that any natural connection subsists
+between the sun or the seasons, and the period within which human
+virtue can bear the temptations of power. Happily for mankind,
+liberty is not, in this respect, confined to any single point of
+time; but lies within extremes, which afford sufficient latitude
+for all the variations which may be required by the various
+situations and circumstances of civil society. The election of
+magistrates might be, if it were found expedient, as in some
+instances it actually has been, daily, weekly, or monthly, as
+well as annual; and if circumstances may require a deviation from
+the rule on one side, why not also on the other side? Turning our
+attention to the periods established among ourselves, for the
+election of the most numerous branches of the State legislatures,
+we find them by no means coinciding any more in this instance,
+than in the elections of other civil magistrates. In Connecticut
+and Rhode Island, the periods are half-yearly. In the other
+States, South Carolina excepted, they are annual. In South
+Carolina they are biennial as is proposed in the federal
+government. Here is a difference, as four to one, between the
+longest and shortest periods; and yet it would be not easy to
+show, that Connecticut or Rhode Island is better governed, or
+enjoys a greater share of rational liberty, than South Carolina;
+or that either the one or the other of these States is
+distinguished in these respects, and by these causes, from the
+States whose elections are different from both. In searching for
+the grounds of this doctrine, I can discover but one, and that is
+wholly inapplicable to our case. The important distinction so
+well understood in America, between a Constitution established by
+the people and unalterable by the government, and a law
+established by the government and alterable by the government,
+seems to have been little understood and less observed in any
+other country. Wherever the supreme power of legislation has
+resided, has been supposed to reside also a full power to change
+the form of the government. Even in Great Britain, where the
+principles of political and civil liberty have been most
+discussed, and where we hear most of the rights of the
+Constitution, it is maintained that the authority of the
+Parliament is transcendent and uncontrollable, as well with
+regard to the Constitution, as the ordinary objects of
+legislative provision. They have accordingly, in several
+instances, actually changed, by legislative acts, some of the
+most fundamental articles of the government. They have in
+particular, on several occasions, changed the period of election;
+and, on the last occasion, not only introduced septennial in
+place of triennial elections, but by the same act, continued
+themselves in place four years beyond the term for which they
+were elected by the people. An attention to these dangerous
+practices has produced a very natural alarm in the votaries of
+free government, of which frequency of elections is the
+corner-stone; and has led them to seek for some security to
+liberty, against the danger to which it is exposed. Where no
+Constitution, paramount to the government, either existed or
+could be obtained, no constitutional security, similar to that
+established in the United States, was to be attempted. Some
+other security, therefore, was to be sought for; and what better
+security would the case admit, than that of selecting and
+appealing to some simple and familiar portion of time, as a
+standard for measuring the danger of innovations, for fixing the
+national sentiment, and for uniting the patriotic exertions? The
+most simple and familiar portion of time, applicable to the
+subject was that of a year; and hence the doctrine has been
+inculcated by a laudable zeal, to erect some barrier against the
+gradual innovations of an unlimited government, that the advance
+towards tyranny was to be calculated by the distance of departure
+from the fixed point of annual elections. But what necessity can
+there be of applying this expedient to a government limited, as
+the federal government will be, by the authority of a paramount
+Constitution? Or who will pretend that the liberties of the
+people of America will not be more secure under biennial
+elections, unalterably fixed by such a Constitution, than those
+of any other nation would be, where elections were annual, or
+even more frequent, but subject to alterations by the ordinary
+power of the government? The second question stated is, whether
+biennial elections be necessary or useful. The propriety of
+answering this question in the affirmative will appear from
+several very obvious considerations.
+ No man can be a
+competent legislator who does not add to an upright intention and
+a sound judgment a certain degree of knowledge of the subjects on
+which he is to legislate. A part of this knowledge may be
+acquired by means of information which lie within the compass of
+men in private as well as public stations. Another part can only
+be attained, or at least thoroughly attained, by actual
+experience in the station which requires the use of it. The
+period of service, ought, therefore, in all such cases, to bear
+some proportion to the extent of practical knowledge requisite to
+the due performance of the service. The period of legislative
+service established in most of the States for the more numerous
+branch is, as we have seen, one year. The question then may be
+put into this simple form: does the period of two years bear no
+greater proportion to the knowledge requisite for federal
+legislation than one year does to the knowledge requisite for
+State legislation? The very statement of the question, in this
+form, suggests the answer that ought to be given to it. In a
+single State, the requisite knowledge relates to the existing
+laws which are uniform throughout the State, and with which all
+the citizens are more or less conversant; and to the general
+affairs of the State, which lie within a small compass, are not
+very diversified, and occupy much of the attention and
+conversation of every class of people. The great theatre of the
+United States presents a very different scene. The laws are so
+far from being uniform, that they vary in every State; whilst the
+public affairs of the Union are spread throughout a very
+extensive region, and are extremely diversified by t e local
+affairs connected with them, and can with difficulty be correctly
+learnt in any other place than in the central councils to which a
+knowledge of them will be brought by the representatives of every
+part of the empire. Yet some knowledge of the affairs, and even
+of the laws, of all the States, ought to be possessed by the
+members from each of the States. How can foreign trade be
+properly regulated by uniform laws, without some acquaintance
+with the commerce, the ports, the usages, and the regulatious of
+the different States? How can the trade between the different
+States be duly regulated, without some knowledge of their
+relative situations in these and other respects? How can taxes
+be judiciously imposed and effectually collected, if they be not
+accommodated to the different laws and local circumstances
+relating to these objects in the different States? How can
+uniform regulations for the militia be duly provided, without a
+similar knowledge of many internal circumstances by which the
+States are distinguished from each other? These are the
+principal objects of federal legislation, and suggest most
+forcibly the extensive information which the representatives
+ought to acquire. The other interior objects will require a
+proportional degree of information with regard to them. It is
+true that all these difficulties will, by degrees, be very much
+diminished. The most laborious task will be the proper
+inauguration of the government and the primeval formation of a
+federal code. Improvements on the first draughts will every year
+become both easier and fewer. Past transactions of the
+government will be a ready and accurate source of information to
+new members. The affairs of the Union will become more and more
+objects of curiosity and conversation among the citizens at
+large. And the increased intercourse among those of different
+States will contribute not a little to diffuse a mutual knowledge
+of their affairs, as this again will contribute to a general
+assimilation of their manners and laws. But with all these
+abatements, the business of federal legislation must continue so
+far to exceed, both in novelty and difficulty, the legislative
+business of a single State, as to justify the longer period of
+service assigned to those who are to transact it. A branch of
+knowledge which belongs to the acquirements of a federal
+representative, and which has not been mentioned is that of
+foreign affairs. In regulating our own commerce he ought to be
+not only acquainted with the treaties between the United States
+and other nations, but also with the commercial policy and laws
+of other nations. He ought not to be altogether ignorant of the
+law of nations; for that, as far as it is a proper object of
+municipal legislation, is submitted to the federal government.
+And although the House of Representatives is not immediately to
+participate in foreign negotiations and arrangements, yet from
+the necessary connection between the several branches of public
+affairs, those particular branches will frequently deserve
+attention in the ordinary course of legislation, and will
+sometimes demand particular legislative sanction and
+co-operation. Some portion of this knowledge may, no doubt, be
+acquired in a man's closet; but some of it also can only be
+derived from the public sources of information; and all of it
+will be acquired to best effect by a practical attention to the
+subject during the period of actual service in the legislature.
+There are other considerations, of less importance, perhaps, but
+which are not unworthy of notice. The distance which many of the
+representatives will be obliged to travel, and the arrangements
+rendered necessary by that circumstance, might be much more
+serious objections with fit men to this service, if limited to a
+single year, than if extended to two years. No argument can be
+drawn on this subject, from the case of the delegates to the
+existing Congress. They are elected annually, it is true; but
+their re-election is considered by the legislative assemblies
+almost as a matter of course. The election of the representatives
+by the people would not be governed by the same principle. A few
+of the members, as happens in all such assemblies, will possess
+superior talents; will, by frequent reelections, become members
+of long standing; will be thoroughly masters of the public
+business, and perhaps not unwilling to avail themselves of those
+advantages. The greater the proportion of new members, and the
+less the information of the bulk of the members the more apt will
+they be to fall into the snares that may be laid for them. This
+remark is no less applicable to the relation which will subsist
+between the House of Representatives and the Senate. It is an
+inconvenience mingled with the advantages of our frequent
+elections even in single States, where they are large, and hold
+but one legislative session in a year, that spurious elections
+cannot be investigated and annulled in time for the decision to
+have its due effect. If a return can be obtained, no matter by
+what unlawful means, the irregular member, who takes his seat of
+course, is sure of holding it a sufficient time to answer his
+purposes. Hence, a very pernicious encouragement is given to the
+use of unlawful means, for obtaining irregular returns. Were
+elections for the federal legislature to be annual, this practice
+might become a very serious abuse, particularly in the more
+distant States. Each house is, as it necessarily must be, the
+judge of the elections, qualifications, and returns of its
+members; and whatever improvements may be suggested by
+experience, for simplifying and accelerating the process in
+disputed cases, so great a portion of a year would unavoidably
+elapse, before an illegitimate member could be dispossessed of
+his seat, that the prospect of such an event would be little
+check to unfair and illicit means of obtaining a seat. All these
+considerations taken together warrant us in affirming, that
+biennial elections will be as useful to the affairs of the public
+as we have seen that they will be safe to the liberty of the
+people. PUBLIUS.
+
+
+FEDERALIST No. 54
+
+The Apportionment of Members Among the States
+
+From the New York Packet. Tuesday, February 12, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+THE next view which I shall take of the House of Representatives
+relates to the appointment of its members to the several States
+which is to be determined by the same rule with that of direct
+taxes.
+ It is not contended that the number of people in each
+State ought not to be the standard for regulating the proportion
+of those who are to represent the people of each State. The
+establishment of the same rule for the appointment of taxes, will
+probably be as little contested; though the rule itself in this
+case, is by no means founded on the same principle. In the former
+case, the rule is understood to refer to the personal rights of
+the people, with which it has a natural and universal connection.
+In the latter, it has reference to the proportion of wealth, of
+which it is in no case a precise measure, and in ordinary cases a
+very unfit one. But notwithstanding the imperfection of the rule
+as applied to the relative wealth and contributions of the
+States, it is evidently the least objectionable among the
+practicable rules, and had too recently obtained the general
+sanction of America, not to have found a ready preference with
+the convention. All this is admitted, it will perhaps be said;
+but does it follow, from an admission of numbers for the measure
+of representation, or of slaves combined with free citizens as a
+ratio of taxation, that slaves ought to be included in the
+numerical rule of representation? Slaves are considered as
+property, not as persons. They ought therefore to be comprehended
+in estimates of taxation which are founded on property, and to be
+excluded from representation which is regulated by a census of
+persons. This is the objection, as I understand it, stated in its
+full force. I shall be equally candid in stating the reasoning
+which may be offered on the opposite side. ``We subscribe to the
+doctrine,'' might one of our Southern brethren observe, ``that
+representation relates more immediately to persons, and taxation
+more immediately to property, and we join in the application of
+this distinction to the case of our slaves. But we must deny the
+fact, that slaves are considered merely as property, and in no
+respect whatever as persons. The true state of the case is, that
+they partake of both these qualities: being considered by our
+laws, in some respects, as persons, and in other respects as
+property. In being compelled to labor, not for himself, but for
+a master; in being vendible by one master to another master; and
+in being subject at all times to be restrained in his liberty and
+chastised in his body, by the capricious will of another, the
+slave may appear to be degraded from the human rank, and classed
+with those irrational animals which fall under the legal
+denomination of property. In being protected, on the other hand,
+in his life and in his limbs, against the violence of all
+others, even the master of his labor and his liberty; and in
+being punishable himself for all violence committed against
+others, the slave is no less evidently regarded by the law as a
+member of the society, not as a part of the irrational creation;
+as a moral person, not as a mere article of property. The
+federal Constitution, therefore, decides with great propriety on
+the case of our slaves, when it views them in the mixed character
+of persons and of property. This is in fact their true
+character. It is the character bestowed on them by the laws
+under which they live; and it will not be denied, that these are
+the proper criterion; because it is only under the pretext that
+the laws have transformed the negroes into subjects of property,
+that a place is disputed them in the computation of numbers; and
+it is admitted, that if the laws were to restore the rights which
+have been taken away, the negroes could no longer be refused an
+equal share of representation with the other inhabitants. ``This
+question may be placed in another light. It is agreed on all
+sides, that numbers are the best scale of wealth and taxation, as
+they are the only proper scale of representation. Would the
+convention have been impartial or consistent, if they had
+rejected the slaves from the list of inhabitants, when the shares
+of representation were to be calculated, and inserted them on the
+lists when the tariff of contributions was to be adjusted? Could
+it be reasonably expected, that the Southern States would concur
+in a system, which considered their slaves in some degree as men,
+when burdens were to be imposed, but refused to consider them in
+the same light, when advantages were to be conferred? Might not
+some surprise also be expressed, that those who reproach the
+Southern States with the barbarous policy of considering as
+property a part of their human brethren, should themselves
+contend, that the government to which all the States are to be
+parties, ought to consider this unfortunate race more completely
+in the unnatural light of property, than the very laws of which
+they complain? ``It may be replied, perhaps, that slaves are not
+included in the estimate of representatives in any of the States
+possessing them. They neither vote themselves nor increase the
+votes of their masters. Upon what principle, then, ought they to
+be taken into the federal estimate of representation? In
+rejecting them altogether, the Constitution would, in this
+respect, have followed the very laws which have been appealed to
+as the proper guide. ``This objection is repelled by a single
+observation. It is a fundamental principle of the proposed
+Constitution, that as the aggregate number of representatives
+allotted to the several States is to be determined by a federal
+rule, founded on the aggregate number of inhabitants, so the
+right of choosing this allotted number in each State is to be
+exercised by such part of the inhabitants as the State itself may
+designate. The qualifications on which the right of suffrage
+depend are not, perhaps, the same in any two States. In some of
+the States the difference is very material. In every State, a
+certain proportion of inhabitants are deprived of this right by
+the constitution of the State, who will be included in the census
+by which the federal Constitution apportions the representatives.
+In this point of view the Southern States might retort the
+complaint, by insisting that the principle laid down by the
+convention required that no regard should be had to the policy of
+particular States towards their own inhabitants; and
+consequently, that the slaves, as inhabitants, should have been
+admitted into the census according to their full number, in like
+manner with other inhabitants, who, by the policy of other
+States, are not admitted to all the rights of citizens. A
+rigorous adherence, however, to this principle, is waived by
+those who would be gainers by it. All that they ask is that
+equal moderation be shown on the other side. Let the case of the
+slaves be considered, as it is in truth, a peculiar one. Let the
+compromising expedient of the Constitution be mutually adopted,
+which regards them as inhabitants, but as debased by servitude
+below the equal level of free inhabitants, which regards the
+SLAVE as divested of two fifths of the MAN. ``After all, may not
+another ground be taken on which this article of the
+Constitution will admit of a still more ready defense? We have
+hitherto proceeded on the idea that representation related to
+persons only, and not at all to property. But is it a just idea?
+Government is instituted no less for protection of the property,
+than of the persons, of individuals. The one as well as the
+other, therefore, may be considered as represented by those who
+are charged with the government. Upon this principle it is, that
+in several of the States, and particularly in the State of New
+York, one branch of the government is intended more especially to
+be the guardian of property, and is accordingly elected by that
+part of the society which is most interested in this object of
+government. In the federal Constitution, this policy does not
+prevail. The rights of property are committed into the same hands
+with the personal rights. Some attention ought, therefore, to be
+paid to property in the choice of those hands. ``For another
+reason, the votes allowed in the federal legislature to the
+people of each State, ought to bear some proportion to the
+comparative wealth of the States. States have not, like
+individuals, an influence over each other, arising from superior
+advantages of fortune. If the law allows an opulent citizen but a
+single vote in the choice of his representative, the respect and
+consequence which he derives from his fortunate situation very
+frequently guide the votes of others to the objects of his
+choice; and through this imperceptible channel the rights of
+property are conveyed into the public representation. A State
+possesses no such influence over other States. It is not probable
+that the richest State in the Confederacy will ever influence the
+choice of a single representative in any other State. Nor will
+the representatives of the larger and richer States possess any
+other advantage in the federal legislature, over the
+representatives of other States, than what may result from their
+superior number alone. As far, therefore, as their superior
+wealth and weight may justly entitle them to any advantage, it
+ought to be secured to them by a superior share of
+representation. The new Constitution is, in this respect,
+materially different from the existing Confederation, as well as
+from that of the United Netherlands, and other similar
+confederacies. In each of the latter, the efficacy of the
+federal resolutions depends on the subsequent and voluntary
+resolutions of the states composing the union. Hence the states,
+though possessing an equal vote in the public councils, have an
+unequal influence, corresponding with the unequal importance of
+these subsequent and voluntary resolutions. Under the proposed
+Constitution, the federal acts will take effect without the
+necessary intervention of the individual States. They will depend
+merely on the majority of votes in the federal legislature, and
+consequently each vote, whether proceeding from a larger or
+smaller State, or a State more or less wealthy or powerful, will
+have an equal weight and efficacy: in the same manner as the
+votes individually given in a State legislature, by the
+representatives of unequal counties or other districts, have
+each a precise equality of value and effect; or if there be any
+difference in the case, it proceeds from the difference in the
+personal character of the individual representative, rather than
+from any regard to the extent of the district from which he
+comes. ''Such is the reasoning which an advocate for the
+Southern interests might employ on this subject; and although it
+may appear to be a little strained in some points, yet, on the
+whole, I must confess that it fully reconciles me to the scale of
+representation which the convention have established. In one
+respect, the establishment of a common measure for representation
+and taxation will have a very salutary effect. As the accuracy
+of the census to be obtained by the Congress will necessarily
+depend, in a considerable degree on the disposition, if not on
+the co-operation, of the States, it is of great importance that
+the States should feel as little bias as possible, to swell or to
+reduce the amount of their numbers. Were their share of
+representation alone to be governed by this rule, they would have
+an interest in exaggerating their inhabitants. Were the rule to
+decide their share of taxation alone, a contrary temptation would
+prevail. By extending the rule to both objects, the States will
+have opposite interests, which will control and balance each
+other, and produce the requisite impartiality. PUBLIUS.
+
+
+FEDERALIST No. 55
+
+The Total Number of the House of Representatives
+From the New York Packet. Friday, February 15, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+THE number of which the House of Representatives is to consist,
+forms another and a very interesting point of view, under which
+this branch of the federal legislature may be contemplated.
+Scarce any article, indeed, in the whole Constitution seems to be
+rendered more worthy of attention, by the weight of character and
+the apparent force of argument with which it has been assailed.
+The charges exhibited against it are, first, that so small a
+number of representatives will be an unsafe depositary of the
+public interests; secondly, that they will not possess a proper
+knowledge of the local circumstances of their numerous
+constituents; thirdly, that they will be taken from that class of
+citizens which will sympathize least with the feelings of the
+mass of the people, and be most likely to aim at a permanent
+elevation of the few on the depression of the many; fourthly,
+that defective as the number will be in the first instance, it
+will be more and more disproportionate, by the increase of the
+people, and the obstacles which will prevent a correspondent
+increase of the representatives. In general it may be remarked on
+this subject, that no political problem is less susceptible of a
+precise solution than that which relates to the number most
+convenient for a representative legislature; nor is there any
+point on which the policy of the several States is more at
+variance, whether we compare their legislative assemblies
+directly with each other, or consider the proportions which they
+respectively bear to the number of their constituents. Passing
+over the difference between the smallest and largest States, as
+Delaware, whose most numerous branch consists of twenty-one
+representatives, and Massachusetts, where it amounts to between
+three and four hundred, a very considerable difference is
+observable among States nearly equal in population. The number of
+representatives in Pennsylvania is not more than one fifth of
+that in the State last mentioned. New York, whose population is
+to that of South Carolina as six to five, has little more than
+one third of the number of representatives. As great a disparity
+prevails between the States of Georgia and Delaware or Rhode
+Island. In Pennsylvania, the representatives do not bear a
+greater proportion to their constituents than of one for every
+four or five thousand. In Rhode Island, they bear a proportion of
+at least one for every thousand. And according to the
+constitution of Georgia, the proportion may be carried to one to
+every ten electors; and must unavoidably far exceed the
+proportion in any of the other States. Another general remark to
+be made is, that the ratio between the representatives and the
+people ought not to be the same where the latter are very
+numerous as where they are very few. Were the representatives in
+Virginia to be regulated by the standard in Rhode Island, they
+would, at this time, amount to between four and five hundred; and
+twenty or thirty years hence, to a thousand. On the other hand,
+the ratio of Pennsylvania, if applied to the State of Delaware,
+would reduce the representative assembly of the latter to seven
+or eight members. Nothing can be more fallacious than to found
+our political calculations on arithmetical principles. Sixty or
+seventy men may be more properly trusted with a given degree of
+power than six or seven. But it does not follow that six or seven
+hundred would be proportionably a better depositary. And if we
+carry on the supposition to six or seven thousand, the whole
+reasoning ought to be reversed. The truth is, that in all cases a
+certain number at least seems to be necessary to secure the
+benefits of free consultation and discussion, and to guard
+against too easy a combination for improper purposes; as, on the
+other hand, the number ought at most to be kept within a certain
+limit, in order to avoid the confusion and intemperance of a
+multitude. In all very numerous assemblies, of whatever character
+composed, passion never fails to wrest the sceptre from reason.
+Had every Athenian citizen been a Socrates, every Athenian
+assembly would still have been a mob.
+ It is necessary also to
+recollect here the observations which were applied to the case of
+biennial elections. For the same reason that the limited powers
+of the Congress, and the control of the State legislatures,
+justify less frequent elections than the public safely might
+otherwise require, the members of the Congress need be less
+numerous than if they possessed the whole power of legislation,
+and were under no other than the ordinary restraints of other
+legislative bodies. With these general ideas in our mind, let us
+weigh the objections which have been stated against the number of
+members proposed for the House of Representatives. It is said, in
+the first place, that so small a number cannot be safely trusted
+with so much power. The number of which this branch of the
+legislature is to consist, at the outset of the government, will
+be sixtyfive. Within three years a census is to be taken, when
+the number may be augmented to one for every thirty thousand
+inhabitants; and within every successive period of ten years the
+census is to be renewed, and augmentations may continue to be
+made under the above limitation. It will not be thought an
+extravagant conjecture that the first census will, at the rate of
+one for every thirty thousand, raise the number of
+representatives to at least one hundred. Estimating the negroes
+in the proportion of three fifths, it can scarcely be doubted
+that the population of the United States will by that time, if it
+does not already, amount to three millions. At the expiration of
+twenty-five years, according to the computed rate of increase,
+the number of representatives will amount to two hundred, and of
+fifty years, to four hundred. This is a number which, I presume,
+will put an end to all fears arising from the smallness of the
+body. I take for granted here what I shall, in answering the
+fourth objection, hereafter show, that the number of
+representatives will be augmented from time to time in the
+manner provided by the Constitution. On a contrary supposition, I
+should admit the objection to have very great weight indeed. The
+true question to be decided then is, whether the smallness of the
+number, as a temporary regulation, be dangerous to the public
+liberty? Whether sixty-five members for a few years, and a
+hundred or two hundred for a few more, be a safe depositary for a
+limited and well-guarded power of legislating for the United
+States? I must own that I could not give a negative answer to
+this question, without first obliterating every impression which
+I have received with regard to the present genius of the people
+of America, the spirit which actuates the State legislatures, and
+the principles which are incorporated with the political
+character of every class of citizens I am unable to conceive that
+the people of America, in their present temper, or under any
+circumstances which can speedily happen, will choose, and every
+second year repeat the choice of, sixty-five or a hundred men who
+would be disposed to form and pursue a scheme of tyranny or
+treachery. I am unable to conceive that the State legislatures,
+which must feel so many motives to watch, and which possess so
+many means of counteracting, the federal legislature, would fail
+either to detect or to defeat a conspiracy of the latter against
+the liberties of their common constituents. I am equally unable
+to conceive that there are at this time, or can be in any short
+time, in the United States, any sixty-five or a hundred men
+capable of recommending themselves to the choice of the people at
+large, who would either desire or dare, within the short space of
+two years, to betray the solemn trust committed to them. What
+change of circumstances, time, and a fuller population of our
+country may produce, requires a prophetic spirit to declare,
+which makes no part of my pretensions. But judging from the
+circumstances now before us, and from the probable state of them
+within a moderate period of time, I must pronounce that the
+liberties of America cannot be unsafe in the number of hands
+proposed by the federal Constitution. From what quarter can the
+danger proceed? Are we afraid of foreign gold? If foreign gold
+could so easily corrupt our federal rulers and enable them to
+ensnare and betray their constituents, how has it happened that
+we are at this time a free and independent nation? The Congress
+which conducted us through the Revolution was a less numerous
+body than their successors will be; they were not chosen by, nor
+responsible to, their fellowcitizens at large; though appointed
+from year to year, and recallable at pleasure, they were
+generally continued for three years, and prior to the
+ratification of the federal articles, for a still longer term.
+They held their consultations always under the veil of secrecy;
+they had the sole transaction of our affairs with foreign
+nations; through the whole course of the war they had the fate of
+their country more in their hands than it is to be hoped will
+ever be the case with our future representatives; and from the
+greatness of the prize at stake, and the eagerness of the party
+which lost it, it may well be supposed that the use of other
+means than force would not have been scrupled. Yet we know by
+happy experience that the public trust was not betrayed; nor has
+the purity of our public councils in this particular ever
+suffered, even from the whispers of calumny. Is the danger
+apprehended from the other branches of the federal government?
+But where are the means to be found by the President, or the
+Senate, or both? Their emoluments of office, it is to be
+presumed, will not, and without a previous corruption of the
+House of Representatives cannot, more than suffice for very
+different purposes; their private fortunes, as they must allbe
+American citizens, cannot possibly be sources of danger. The
+only means, then, which they can possess, will be in the
+dispensation of appointments. Is it here that suspicion rests
+her charge? Sometimes we are told that this fund of corruption
+is to be exhausted by the President in subduing the virtue of the
+Senate. Now, the fidelity of the other House is to be the
+victim. The improbability of such a mercenary and perfidious
+combination of the several members of government, standing on as
+different foundations as republican principles will well admit,
+and at the same time accountable to the society over which they
+are placed, ought alone to quiet this apprehension. But,
+fortunately, the Constitution has provided a still further
+safeguard. The members of the Congress are rendered ineligible
+to any civil offices that may be created, or of which the
+emoluments may be increased, during the term of their election.
+No offices therefore can be dealt out to the existing members but
+such as may become vacant by ordinary casualties: and to suppose
+that these would be sufficient to purchase the guardians of the
+people, selected by the people themselves, is to renounce every
+rule by which events ought to be calculated, and to substitute an
+indiscriminate and unbounded jealousy, with which all reasoning
+must be vain. The sincere friends of liberty, who give
+themselves up to the extravagancies of this passion, are not
+aware of the injury they do their own cause. As there is a
+degree of depravity in mankind which requires a certain degree of
+circumspection and distrust, so there are other qualities in
+human nature which justify a certain portion of esteem and
+confidence. Republican government presupposes the existence of
+these qualities in a higher degree than any other form. Were the
+pictures which have been drawn by the political jealousy of some
+among us faithful likenesses of the human character, the
+inference would be, that there is not sufficient virtue among men
+for self-government; and that nothing less than the chains of
+despotism can restrain them from destroying and devouring one
+another. PUBLIUS.
+
+
+FEDERALIST No. 56
+
+The Same Subject Continued (The Total Number of the House of
+Representatives)
+From the New York Packet. Tuesday, February 19, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+THE SECOND charge against the House of Representatives is, that
+it will be too small to possess a due knowledge of the interests
+of its constituents. As this objection evidently proceeds from a
+comparison of the proposed number of representatives with the
+great extent of the United States, the number of their
+inhabitants, and the diversity of their interests, without taking
+into view at the same time the circumstances which will
+distinguish the Congress from other legislative bodies, the best
+answer that can be given to it will be a brief explanation of
+these peculiarities. It is a sound and important principle that
+the representative ought to be acquainted with the interests and
+circumstances of his constituents. But this principle can extend
+no further than to those circumstances and interests to which the
+authority and care of the representative relate. An ignorance of
+a variety of minute and particular objects, which do not lie
+within the compass of legislation, is consistent with every
+attribute necessary to a due performance of the legislative
+trust. In determining the extent of information required in the
+exercise of a particular authority, recourse then must be had to
+the objects within the purview of that authority. What are to be
+the objects of federal legislation? Those which are of most
+importance, and which seem most to require local knowledge, are
+commerce, taxation, and the militia. A proper regulation of
+commerce requires much information, as has been elsewhere
+remarked; but as far as this information relates to the laws and
+local situation of each individual State, a very few
+representatives would be very sufficient vehicles of it to the
+federal councils. Taxation will consist, in a great measure, of
+duties which will be involved in the regulation of commerce. So
+far the preceding remark is applicable to this object. As far as
+it may consist of internal collections, a more diffusive
+knowledge of the circumstances of the State may be necessary. But
+will not this also be possessed in sufficient degree by a very
+few intelligent men, diffusively elected within the State? Divide
+the largest State into ten or twelve districts, and it will be
+found that there will be no peculiar local interests in either,
+which will not be within the knowledge of the representative of
+the district. Besides this source of information, the laws of the
+State, framed by representatives from every part of it, will be
+almost of themselves a sufficient guide. In every State there
+have been made, and must continue to be made, regulations on this
+subject which will, in many cases, leave little more to be done
+by the federal legislature, than to review the different laws,
+and reduce them in one general act. A skillful individual in his
+closet with all the local codes before him, might compile a law
+on some subjects of taxation for the whole union, without any aid
+from oral information, and it may be expected that whenever
+internal taxes may be necessary, and particularly in cases
+requiring uniformity throughout the States, the more simple
+objects will be preferred. To be fully sensible of the facility
+which will be given to this branch of federal legislation by the
+assistance of the State codes, we need only suppose for a moment
+that this or any other State were divided into a number of parts,
+each having and exercising within itself a power of local
+legislation. Is it not evident that a degree of local information
+and preparatory labor would be found in the several volumes of
+their proceedings, which would very much shorten the labors of
+the general legislature, and render a much smaller number of
+members sufficient for it? The federal councils will derive great
+advantage from another circumstance. The representatives of each
+State will not only bring with them a considerable knowledge of
+its laws, and a local knowledge of their respective districts,
+but will probably in all cases have been members, and may even at
+the very time be members, of the State legislature, where all the
+local information and interests of the State are assembled, and
+from whence they may easily be conveyed by a very few hands into
+the legislature of the United States. The observations made on
+the subject of taxation apply with greater force to the case of
+the militia. For however different the rules of discipline may be
+in different States, they are the same throughout each particular
+State; and depend on circumstances which can differ but little in
+different parts of the same State. The attentive reader will
+discern that the reasoning here used, to prove the sufficiency of
+a moderate number of representatives, does not in any respect
+contradict what was urged on another occasion with regard to the
+extensive information which the representatives ought to possess,
+and the time that might be necessary for acquiring it. This
+information, so far as it may relate to local objects, is
+rendered necessary and difficult, not by a difference of laws and
+local circumstances within a single State, but of those among
+different States. Taking each State by itself, its laws are the
+same, and its interests but little diversified. A few men,
+therefore, will possess all the knowledge requisite for a proper
+representation of them. Were the interests and affairs of each
+individual State perfectly simple and uniform, a knowledge of
+them in one part would involve a knowledge of them in every
+other, and the whole State might be competently represented by a
+single member taken from any part of it. On a comparison of the
+different States together, we find a great dissimilarity in their
+laws, and in many other circumstances connected with the objects
+of federal legislation, with all of which the federal
+representatives ought to have some acquaintance. Whilst a few
+representatives, therefore, from each State, may bring with them
+a due knowledge of their own State, every representative will
+have much information to acquire concerning all the other States.
+The changes of time, as was formerly remarked, on the comparative
+situation of the different States, will have an assimilating
+effect. The effect of time on the internal affairs of the States,
+taken singly, will be just the contrary. At present some of the
+States are little more than a society of husbandmen. Few of them
+have made much progress in those branches of industry which give
+a variety and complexity to the affairs of a nation. These,
+however, will in all of them be the fruits of a more advanced
+population, and will require, on the part of each State, a fuller
+representation. The foresight of the convention has accordingly
+taken care that the progress of population may be accompanied
+with a proper increase of the representative branch of the
+government. The experience of Great Britain, which presents to
+mankind so many political lessons, both of the monitory and
+exemplary kind, and which has been frequently consulted in the
+course of these inquiries, corroborates the result of the
+reflections which we have just made. The number of inhabitants in
+the two kingdoms of England and Scotland cannot be stated at less
+than eight millions. The representatives of these eight millions
+in the House of Commons amount to five hundred and fifty-eight.
+Of this number, one ninth are elected by three hundred and
+sixty-four persons, and one half, by five thousand seven hundred
+and twenty-three persons. 1 It cannot be supposed that the half
+thus elected, and who do not even reside among the people at
+large, can add any thing either to the security of the people
+against the government, or to the knowledge of their
+circumstances and interests in the legislative councils. On the
+contrary, it is notorious, that they are more frequently the
+representatives and instruments of the executive magistrate, than
+the guardians and advocates of the popular rights. They might
+therefore, with great propriety, be considered as something more
+than a mere deduction from the real representatives of the
+nation. We will, however, consider them in this light alone, and
+will not extend the deduction to a considerable number of
+others, who do not reside among their constitutents, are very
+faintly connected with them, and have very little particular
+knowledge of their affairs. With all these concessions, two
+hundred and seventy-nine persons only will be the depository of
+the safety, interest, and happiness of eight millions that is to
+say, there will be one representative only to maintain the rights
+and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED
+AND SEVENTY constitutents, in an assembly exposed to the whole
+force of executive influence, and extending its authority to
+every object of legislation within a nation whose affairs are in
+the highest degree diversified and complicated. Yet it is very
+certain, not only that a valuable portion of freedom has been
+preserved under all these circumstances, but that the defects in
+the British code are chargeable, in a very small proportion, on
+the ignorance of the legislature concerning the circumstances of
+the people. Allowing to this case the weight which is due to it,
+and comparing it with that of the House of Representatives as
+above explained it seems to give the fullest assurance, that a
+representative for every THIRTY THOUSAND INHABITANTS will render
+the latter both a safe and competent guardian of the interests
+which will be confided to it. PUBLIUS. Burgh's ``Political
+Disquisitions. ''
+
+
+FEDERALIST No. 57
+
+The Alleged Tendency of the New Plan to Elevate the Few at the
+Expense of the Many Considered in Connection with Representation
+From the New York Packet. Tuesday, February 19, 1788.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+THE THIRD charge against the House of Representatives is, that it
+will be taken from that class of citizens which will have least
+sympathy with the mass of the people, and be most likely to aim
+at an ambitious sacrifice of the many to the aggrandizement of
+the few. Of all the objections which have been framed against the
+federal Constitution, this is perhaps the most extraordinary.
+Whilst the objection itself is levelled against a pretended
+oligarchy, the principle of it strikes at the very root of
+republican government. The aim of every political constitution
+is, or ought to be, first to obtain for rulers men who possess
+most wisdom to discern, and most virtue to pursue, the common
+good of the society; and in the next place, to take the most
+effectual precautions for keeping them virtuous whilst they
+continue to hold their public trust. The elective mode of
+obtaining rulers is the characteristic policy of republican
+government. The means relied on in this form of government for
+preventing their degeneracy are numerous and various. The most
+effectual one, is such a limitation of the term of appointments
+as will maintain a proper responsibility to the people. Let me
+now ask what circumstance there is in the constitution of the
+House of Representatives that violates the principles of
+republican government, or favors the elevation of the few on the
+ruins of the many? Let me ask whether every circumstance is not,
+on the contrary, strictly conformable to these principles, and
+scrupulously impartial to the rights and pretensions of every
+class and description of citizens? Who are to be the electors of
+the federal representatives? Not the rich, more than the poor;
+not the learned, more than the ignorant; not the haughty heirs of
+distinguished names, more than the humble sons of obscurity and
+unpropitious fortune. The electors are to be the great body of
+the people of the United States. They are to be the same who
+exercise the right in every State of electing the corresponding
+branch of the legislature of the State. Who are to be the objects
+of popular choice? Every citizen whose merit may recommend him to
+the esteem and confidence of his country. No qualification of
+wealth, of birth, of religious faith, or of civil profession is
+permitted to fetter the judgement or disappoint the inclination
+of the people. If we consider the situation of the men on whom
+the free suffrages of their fellow-citizens may confer the
+representative trust, we shall find it involving every security
+which can be devised or desired for their fidelity to their
+constituents. In the first place, as they will have been
+distinguished by the preference of their fellow-citizens, we are
+to presume that in general they will be somewhat distinguished
+also by those qualities which entitle them to it, and which
+promise a sincere and scrupulous regard to the nature of their
+engagements. In the second place, they will enter into the public
+service under circumstances which cannot fail to produce a
+temporary affection at least to their constituents. There is in
+every breast a sensibility to marks of honor, of favor, of
+esteem, and of confidence, which, apart from all considerations
+of interest, is some pledge for grateful and benevolent returns.
+Ingratitude is a common topic of declamation against human
+nature; and it must be confessed that instances of it are but too
+frequent and flagrant, both in public and in private life. But
+the universal and extreme indignation which it inspires is itself
+a proof of the energy and prevalence of the contrary sentiment.
+In the third place, those ties which bind the representative to
+his constituents are strengthened by motives of a more selfish
+nature. His pride and vanity attach him to a form of government
+which favors his pretensions and gives him a share in its honors
+and distinctions. Whatever hopes or projects might be entertained
+by a few aspiring characters, it must generally happen that a
+great proportion of the men deriving their advancement from their
+influence with the people, would have more to hope from a
+preservation of the favor, than from innovations in the
+government subversive of the authority of the people. All these
+securities, however, would be found very insufficient without the
+restraint of frequent elections. Hence, in the fourth place, the
+House of Representatives is so constituted as to support in the
+members an habitual recollection of their dependence on the
+people. Before the sentiments impressed on their minds by the
+mode of their elevation can be effaced by the exercise of power,
+they will be compelled to anticipate the moment when their power
+is to cease, when their exercise of it is to be reviewed, and
+when they must descend to the level from which they were raised;
+there forever to remain unless a faithful discharge of their
+trust shall have established their title to a renewal of it. I
+will add, as a fifth circumstance in the situation of the House
+of Representatives, restraining them from oppressive measures,
+that they can make no law which will not have its full operation
+on themselves and their friends, as well as on the great mass of
+the society. This has always been deemed one of the strongest
+bonds by which human policy can connect the rulers and the people
+together. It creates between them that communion of interests and
+sympathy of sentiments, of which few governments have furnished
+examples; but without which every government degenerates into
+tyranny. If it be asked, what is to restrain the House of
+Representatives from making legal discriminations in favor of
+themselves and a particular class of the society? I answer: the
+genius of the whole system; the nature of just and constitutional
+laws; and above all, the vigilant and manly spirit which actuates
+the people of America, a spirit which nourishes freedom, and in
+return is nourished by it. If this spirit shall ever be so far
+debased as to tolerate a law not obligatory on the legislature,
+as well as on the people, the people will be prepared to tolerate
+any thing but liberty. Such will be the relation between the
+House of Representatives and their constituents. Duty, gratitude,
+interest, ambition itself, are the chords by which they will be
+bound to fidelity and sympathy with the great mass of the people.
+It is possible that these may all be insufficient to control the
+caprice and wickedness of man. But are they not all that
+government will admit, and that human prudence can devise? Are
+they not the genuine and the characteristic means by which
+republican government provides for the liberty and happiness of
+the people? Are they not the identical means on which every State
+government in the Union relies for the attainment of these
+important ends? What then are we to understand by the objection
+which this paper has combated? What are we to say to the men who
+profess the most flaming zeal for republican government, yet
+boldly impeach the fundamental principle of it; who pretend to be
+champions for the right and the capacity of the people to choose
+their own rulers, yet maintain that they will prefer those only
+who will immediately and infallibly betray the trust committed to
+them? Were the objection to be read by one who had not seen the
+mode prescribed by the Constitution for the choice of
+representatives, he could suppose nothing less than that some
+unreasonable qualification of property was annexed to the right
+of suffrage; or that the right of eligibility was limited to
+persons of particular families or fortunes; or at least that the
+mode prescribed by the State constitutions was in some respect or
+other, very grossly departed from. We have seen how far such a
+supposition would err, as to the two first points. Nor would it,
+in fact, be less erroneous as to the last. The only difference
+discoverable between the two cases is, that each representative
+of the United States will be elected by five or six thousand
+citizens; whilst in the individual States, the election of a
+representative is left to about as many hundreds. Will it be
+pretended that this difference is sufficient to justify an
+attachment to the State governments, and an abhorrence to the
+federal government? If this be the point on which the objection
+turns, it deserves to be examined. Is it supported by REASON?
+This cannot be said, without maintaining that five or six
+thousand citizens are less capable of choosing a fit
+representative, or more liable to be corrupted by an unfit one,
+than five or six hundred. Reason, on the contrary, assures us,
+that as in so great a number a fit representative would be most
+likely to be found, so the choice would be less likely to be
+diverted from him by the intrigues of the ambitious or the
+ambitious or the bribes of the rich. Is the CONSEQUENCE from
+this doctrine admissible? If we say that five or six hundred
+citizens are as many as can jointly exercise their right of
+suffrage, must we not deprive the people of the immediate choice
+of their public servants, in every instance where the
+administration of the government does not require as many of them
+as will amount to one for that number of citizens? Is the
+doctrine warranted by FACTS? It was shown in the last paper, that
+the real representation in the British House of Commons very
+little exceeds the proportion of one for every thirty thousand
+inhabitants. Besides a variety of powerful causes not existing
+here, and which favor in that country the pretensions of rank and
+wealth, no person is eligible as a representative of a county,
+unless he possess real estate of the clear value of six hundred
+pounds sterling per year; nor of a city or borough, unless he
+possess a like estate of half that annual value. To this
+qualification on the part of the county representatives is added
+another on the part of the county electors, which restrains the
+right of suffrage to persons having a freehold estate of the
+annual value of more than twenty pounds sterling, according to
+the present rate of money. Notwithstanding these unfavorable
+circumstances, and notwithstanding some very unequal laws in the
+British code, it cannot be said that the representatives of the
+nation have elevated the few on the ruins of the many. But we
+need not resort to foreign experience on this subject. Our own
+is explicit and decisive. The districts in New Hampshire in
+which the senators are chosen immediately by the people, are
+nearly as large as will be necessary for her representatives in
+the Congress. Those of Massachusetts are larger than will be
+necessary for that purpose; and those of New York still more so.
+In the last State the members of Assembly for the cities and
+counties of New York and Albany are elected by very nearly as
+many voters as will be entitled to a representative in the
+Congress, calculating on the number of sixty-five representatives
+only. It makes no difference that in these senatorial districts
+and counties a number of representatives are voted for by each
+elector at the same time. If the same electors at the same time
+are capable of choosing four or five representatives, they cannot
+be incapable of choosing one. Pennsylvania is an additional
+example. Some of her counties, which elect her State
+representatives, are almost as large as her districts will be by
+which her federal representatives will be elected. The city of
+Philadelphia is supposed to contain between fifty and sixty
+thousand souls. It will therefore form nearly two districts for
+the choice of federal representatives. It forms, however, but
+one county, in which every elector votes for each of its
+representatives in the State legislature. And what may appear to
+be still more directly to our purpose, the whole city actually
+elects a SINGLE MEMBER for the executive council. This is the
+case in all the other counties of the State. Are not these facts
+the most satisfactory proofs of the fallacy which has been
+employed against the branch of the federal government under
+consideration? Has it appeared on trial that the senators of New
+Hampshire, Massachusetts, and New York, or the executive council
+of Pennsylvania, or the members of the Assembly in the two last
+States, have betrayed any peculiar disposition to sacrifice the
+many to the few, or are in any respect less worthy of their
+places than the representatives and magistrates appointed in
+other States by very small divisions of the people? But there are
+cases of a stronger complexion than any which I have yet quoted.
+One branch of the legislature of Connecticut is so constituted
+that each member of it is elected by the whole State. So is the
+governor of that State, of Massachusetts, and of this State, and
+the president of New Hampshire. I leave every man to decide
+whether the result of any one of these experiments can be said to
+countenance a suspicion, that a diffusive mode of choosing
+representatives of the people tends to elevate traitors and to
+undermine the public liberty. PUBLIUS.
+
+
+FEDERALIST No. 58
+Objection That The Number of Members Will Not Be Augmented as the
+Progress of Population Demands Considered
+
+MADISON
+
+To the People of the State of New York:
+THE remaining charge against the House of Representatives, which
+I am to examine, is grounded on a supposition that the number of
+members will not be augmented from time to time, as the progress
+of population may demand. It has been admitted, that this
+objection, if well supported, would have great weight. The
+following observations will show that, like most other objections
+against the Constitution, it can only proceed from a partial view
+of the subject, or from a jealousy which discolors and disfigures
+every object which is beheld. 1. Those who urge the objection
+seem not to have recollected that the federal Constitution will
+not suffer by a comparison with the State constitutions, in the
+security provided for a gradual augmentation of the number of
+representatives. The number which is to prevail in the first
+instance is declared to be temporary. Its duration is limited to
+the short term of three years. Within every successive term of
+ten years a census of inhabitants is to be repeated. The
+unequivocal objects of these regulations are, first, to readjust,
+from time to time, the apportionment of representatives to the
+number of inhabitants, under the single exception that each State
+shall have one representative at least; secondly, to augment the
+number of representatives at the same periods, under the sole
+limitation that the whole number shall not exceed one for every
+thirty thousand inhabitants. If we review the constitutions of
+the several States, we shall find that some of them contain no
+determinate regulations on this subject, that others correspond
+pretty much on this point with the federal Constitution, and that
+the most effectual security in any of them is resolvable into a
+mere directory provision. 2. As far as experience has taken place
+on this subject, a gradual increase of representatives under the
+State constitutions has at least kept pace with that of the
+constituents, and it appears that the former have been as ready
+to concur in such measures as the latter have been to call for
+them. 3. There is a peculiarity in the federal Constitution which
+insures a watchful attention in a majority both of the people and
+of their representatives to a constitutional augmentation of the
+latter. The peculiarity lies in this, that one branch of the
+legislature is a representation of citizens, the other of the
+States: in the former, consequently, the larger States will have
+most weight; in the latter, the advantage will be in favor of the
+smaller States. From this circumstance it may with certainty be
+inferred that the larger States will be strenuous advocates for
+increasing the number and weight of that part of the legislature
+in which their influence predominates. And it so happens that
+four only of the largest will have a majority of the whole votes
+in the House of Representatives. Should the representatives or
+people, therefore, of the smaller States oppose at any time a
+reasonable addition of members, a coalition of a very few States
+will be sufficient to overrule the opposition; a coalition which,
+notwithstanding the rivalship and local prejudices which might
+prevent it on ordinary occasions, would not fail to take place,
+when not merely prompted by common interest, but justified by
+equity and the principles of the Constitution. It may be
+alleged, perhaps, that the Senate would be prompted by like
+motives to an adverse coalition; and as their concurrence would
+be indispensable, the just and constitutional views of the other
+branch might be defeated. This is the difficulty which has
+probably created the most serious apprehensions in the jealous
+friends of a numerous representation. Fortunately it is among
+the difficulties which, existing only in appearance, vanish on a
+close and accurate inspection. The following reflections will,
+if I mistake not, be admitted to be conclusive and satisfactory
+on this point. Notwithstanding the equal authority which will
+subsist between the two houses on all legislative subjects,
+except the originating of money bills, it cannot be doubted that
+the House, composed of the greater number of members, when
+supported by the more powerful States, and speaking the known and
+determined sense of a majority of the people, will have no small
+advantage in a question depending on the comparative firmness of
+the two houses. This advantage must be increased by the
+consciousness, felt by the same side of being supported in its
+demands by right, by reason, and by the Constitution; and the
+consciousness, on the opposite side, of contending against the
+force of all these solemn considerations. It is farther to be
+considered, that in the gradation between the smallest and
+largest States, there are several, which, though most likely in
+general to arrange themselves among the former are too little
+removed in extent and population from the latter, to second an
+opposition to their just and legitimate pretensions. Hence it is
+by no means certain that a majority of votes, even in the
+Senate, would be unfriendly to proper augmentations in the number
+of representatives. It will not be looking too far to add, that
+the senators from all the new States may be gained over to the
+just views of the House of Representatives, by an expedient too
+obvious to be overlooked. As these States will, for a great
+length of time, advance in population with peculiar rapidity,
+they will be interested in frequent reapportionments of the
+representatives to the number of inhabitants. The large States,
+therefore, who will prevail in the House of Representatives, will
+have nothing to do but to make reapportionments and augmentations
+mutually conditions of each other; and the senators from all the
+most growing States will be bound to contend for the latter, by
+the interest which their States will feel in the former. These
+considerations seem to afford ample security on this subject, and
+ought alone to satisfy all the doubts and fears which have been
+indulged with regard to it. Admitting, however, that they should
+all be insufficient to subdue the unjust policy of the smaller
+States, or their predominant influence in the councils of the
+Senate, a constitutional and infallible resource still remains
+with the larger States, by which they will be able at all times
+to accomplish their just purposes. The House of Representatives
+cannot only refuse, but they alone can propose, the supplies
+requisite for the support of government. They, in a word, hold
+the purse that powerful instrument by which we behold, in the
+history of the British Constitution, an infant and humble
+representation of the people gradually enlarging the sphere of
+its activity and importance, and finally reducing, as far as it
+seems to have wished, all the overgrown prerogatives of the other
+branches of the government. This power over the purse may, in
+fact, be regarded as the most complete and effectual weapon with
+which any constitution can arm the immediate representatives of
+the people, for obtaining a redress of every grievance, and for
+carrying into effect every just and salutary measure. But will
+not the House of Representatives be as much interested as the
+Senate in maintaining the government in its proper functions, and
+will they not therefore be unwilling to stake its existence or
+its reputation on the pliancy of the Senate? Or, if such a trial
+of firmness between the two branches were hazarded, would not the
+one be as likely first to yield as the other? These questions
+will create no difficulty with those who reflect that in all
+cases the smaller the number, and the more permanent and
+conspicuous the station, of men in power, the stronger must be
+the interest which they will individually feel in whatever
+concerns the government. Those who represent the dignity of their
+country in the eyes of other nations, will be particularly
+sensible to every prospect of public danger, or of dishonorable
+stagnation in public affairs. To those causes we are to ascribe
+the continual triumph of the British House of Commons over the
+other branches of the government, whenever the engine of a money
+bill has been employed. An absolute inflexibility on the side of
+the latter, although it could not have failed to involve every
+department of the state in the general confusion, has neither
+been apprehended nor experienced. The utmost degree of firmness
+that can be displayed by the federal Senate or President, will
+not be more than equal to a resistance in which they will be
+supported by constitutional and patriotic principles. In this
+review of the Constitution of the House of Representatives, I
+have passed over the circumstances of economy, which, in the
+present state of affairs, might have had some effect in lessening
+the temporary number of representatives, and a disregard of which
+would probably have been as rich a theme of declamation against
+the Constitution as has been shown by the smallness of the number
+proposed. I omit also any remarks on the difficulty which might
+be found, under present circumstances, in engaging in the federal
+service a large number of such characters as the people will
+probably elect. One observation, however, I must be permitted to
+add on this subject as claiming, in my judgment, a very serious
+attention. It is, that in all legislative assemblies the greater
+the number composing them may be, the fewer will be the men who
+will in fact direct their proceedings. In the first place, the
+more numerous an assembly may be, of whatever characters
+composed, the greater is known to be the ascendency of passion
+over reason. In the next place, the larger the number, the
+greater will be the proportion of members of limited information
+and of weak capacities. Now, it is precisely on characters of
+this description that the eloquence and address of the few are
+known to act with all their force. In the ancient republics,
+where the whole body of the people assembled in person, a single
+orator, or an artful statesman, was generally seen to rule with
+as complete a sway as if a sceptre had been placed in his single
+hand. On the same principle, the more multitudinous a
+representative assembly may be rendered, the more it will partake
+of the infirmities incident to collective meetings of the people.
+Ignorance will be the dupe of cunning, and passion the slave of
+sophistry and declamation. The people can never err more than in
+supposing that by multiplying their representatives beyond a
+certain limit, they strengthen the barrier against the government
+of a few. Experience will forever admonish them that, on the
+contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF
+SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE
+WHOLE SOCIETY, they will counteract their own views by every
+addition to their representatives. The countenance of the
+government may become more democratic, but the soul that animates
+it will be more oligarchic. The machine will be enlarged, but the
+fewer, and often the more secret, will be the springs by which
+its motions are directed. As connected with the objection against
+the number of representatives, may properly be here noticed, that
+which has been suggested against the number made competent for
+legislative business. It has been said that more than a majority
+ought to have been required for a quorum; and in particular
+cases, if not in all, more than a majority of a quorum for a
+decision. That some advantages might have resulted from such a
+precaution, cannot be denied. It might have been an additional
+shield to some particular interests, and another obstacle
+generally to hasty and partial measures. But these considerations
+are outweighed by the inconveniences in the opposite scale. In
+all cases where justice or the general good might require new
+laws to be passed, or active measures to be pursued, the
+fundamental principle of free government would be reversed. It
+would be no longer the majority that would rule: the power would
+be transferred to the minority. Were the defensive privilege
+limited to particular cases, an interested minority might take
+advantage of it to screen themselves from equitable sacrifices to
+the general weal, or, in particular emergencies, to extort
+unreasonable indulgences. Lastly, it would facilitate and foster
+the baneful practice of secessions; a practice which has shown
+itself even in States where a majority only is required; a
+practice subversive of all the principles of order and regular
+government; a practice which leads more directly to public
+convulsions, and the ruin of popular governments, than any other
+which has yet been displayed among us. PUBLIUS.
+
+
+FEDERALIST No. 59
+
+Concerning the Power of Congress to Regulate the Election of
+Members
+From the New York Packet. Friday, February 22, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE natural order of the subject leads us to consider, in this
+place, that provision of the Constitution which authorizes the
+national legislature to regulate, in the last resort, the
+election of its own members. It is in these words: ``The TIMES,
+PLACES, and MANNER of holding elections for senators and
+representatives shall be prescribed in each State by the
+legislature thereof; but the Congress may, at any time, by law,
+make or alter SUCH REGULATIONS, except as to the PLACES of
+choosing senators. ''1 This provision has not only been declaimed
+against by those who condemn the Constitution in the gross, but
+it has been censured by those who have objected with less
+latitude and greater moderation; and, in one instance it has been
+thought exceptionable by a gentleman who has declared himself the
+advocate of every other part of the system. I am greatly
+mistaken, notwithstanding, if there be any article in the whole
+plan more completely defensible than this. Its propriety rests
+upon the evidence of this plain proposition, that EVERY
+GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN
+PRESERVATION. Every just reasoner will, at first sight, approve
+an adherence to this rule, in the work of the convention; and
+will disapprove every deviation from it which may not appear to
+have been dictated by the necessity of incorporating into the
+work some particular ingredient, with which a rigid conformity to
+the rule was incompatible. Even in this case, though he may
+acquiesce in the necessity, yet he will not cease to regard and
+to regret a departure from so fundamental a principle, as a
+portion of imperfection in the system which may prove the seed of
+future weakness, and perhaps anarchy. It will not be alleged,
+that an election law could have been framed and inserted in the
+Constitution, which would have been always applicable to every
+probable change in the situation of the country; and it will
+therefore not be denied, that a discretionary power over
+elections ought to exist somewhere. It will, I presume, be as
+readily conceded, that there were only three ways in which this
+power could have been reasonably modified and disposed: that it
+must either have been lodged wholly in the national legislature,
+or wholly in the State legislatures, or primarily in the latter
+and ultimately in the former. The last mode has, with reason,
+been preferred by the convention. They have submitted the
+regulation of elections for the federal government, in the first
+instance, to the local administrations; which, in ordinary
+cases, and when no improper views prevail, may be both more
+convenient and more satisfactory; but they have reserved to the
+national authority a right to interpose, whenever extraordinary
+circumstances might render that interposition necessary to its
+safety. Nothing can be more evident, than that an exclusive
+power of regulating elections for the national government, in the
+hands of the State legislatures, would leave the existence of the
+Union entirely at their mercy. They could at any moment
+annihilate it, by neglecting to provide for the choice of persons
+to administer its affairs. It is to little purpose to say, that
+a neglect or omission of this kind would not be likely to take
+place. The constitutional possibility of the thing, without an
+equivalent for the risk, is an unanswerable objection. Nor has
+any satisfactory reason been yet assigned for incurring that
+risk. The extravagant surmises of a distempered jealousy can
+never be dignified with that character. If we are in a humor to
+presume abuses of power, it is as fair to presume them on the
+part of the State governments as on the part of the general
+government. And as it is more consonant to the rules of a just
+theory, to trust the Union with the care of its own existence,
+than to transfer that care to any other hands, if abuses of power
+are to be hazarded on the one side or on the other, it is more
+rational to hazard them where the power would naturally be
+placed, than where it would unnaturally be placed. Suppose an
+article had been introduced into the Constitution, empowering the
+United States to regulate the elections for the particular
+States, would any man have hesitated to condemn it, both as an
+unwarrantable transposition of power, and as a premeditated
+engine for the destruction of the State governments? The
+violation of principle, in this case, would have required no
+comment; and, to an unbiased observer, it will not be less
+apparent in the project of subjecting the existence of the
+national government, in a similar respect, to the pleasure of the
+State governments. An impartial view of the matter cannot fail
+to result in a conviction, that each, as far as possible, ought
+to depend on itself for its own preservation. As an objection to
+this position, it may be remarked that the constitution of the
+national Senate would involve, in its full extent, the danger
+which it is suggested might flow from an exclusive power in the
+State legislatures to regulate the federal elections. It may be
+alleged, that by declining the appointment of Senators, they
+might at any time give a fatal blow to the Union; and from this
+it may be inferred, that as its existence would be thus rendered
+dependent upon them in so essential a point, there can be no
+objection to intrusting them with it in the particular case under
+consideration. The interest of each State, it may be added, to
+maintain its representation in the national councils, would be a
+complete security against an abuse of the trust. This argument,
+though specious, will not, upon examination, be found solid. It
+is certainly true that the State legislatures, by forbearing the
+appointment of senators, may destroy the national government. But
+it will not follow that, because they have a power to do this in
+one instance, they ought to have it in every other. There are
+cases in which the pernicious tendency of such a power may be far
+more decisive, without any motive equally cogent with that which
+must have regulated the conduct of the convention in respect to
+the formation of the Senate, to recommend their admission into
+the system. So far as that construction may expose the Union to
+the possibility of injury from the State legislatures, it is an
+evil; but it is an evil which could not have been avoided without
+excluding the States, in their political capacities, wholly from
+a place in the organization of the national government. If this
+had been done, it would doubtless have been interpreted into an
+entire dereliction of the federal principle; and would certainly
+have deprived the State governments of that absolute safeguard
+which they will enjoy under this provision. But however wise it
+may have been to have submitted in this instance to an
+inconvenience, for the attainment of a necessary advantage or a
+greater good, no inference can be drawn from thence to favor an
+accumulation of the evil, where no necessity urges, nor any
+greater good invites. It may be easily discerned also that the
+national government would run a much greater risk from a power in
+the State legislatures over the elections of its House of
+Representatives, than from their power of appointing the members
+of its Senate. The senators are to be chosen for the period of
+six years; there is to be a rotation, by which the seats of a
+third part of them are to be vacated and replenished every two
+years; and no State is to be entitled to more than two senators;
+a quorum of the body is to consist of sixteen members. The joint
+result of these circumstances would be, that a temporary
+combination of a few States to intermit the appointment of
+senators, could neither annul the existence nor impair the
+activity of the body; and it is not from a general and permanent
+combination of the States that we can have any thing to fear. The
+first might proceed from sinister designs in the leading members
+of a few of the State legislatures; the last would suppose a
+fixed and rooted disaffection in the great body of the people,
+which will either never exist at all, or will, in all
+probability, proceed from an experience of the inaptitude of the
+general government to the advancement of their happiness in which
+event no good citizen could desire its continuance. But with
+regard to the federal House of Representatives, there is intended
+to be a general election of members once in two years. If the
+State legislatures were to be invested with an exclusive power of
+regulating these elections, every period of making them would be
+a delicate crisis in the national situation, which might issue in
+a dissolution of the Union, if the leaders of a few of the most
+important States should have entered into a previous conspiracy
+to prevent an election. I shall not deny, that there is a degree
+of weight in the observation, that the interests of each State,
+to be represented in the federal councils, will be a security
+against the abuse of a power over its elections in the hands of
+the State legislatures. But the security will not be considered
+as complete, by those who attend to the force of an obvious
+distinction between the interest of the people in the public
+felicity, and the interest of their local rulers in the power and
+consequence of their offices. The people of America may be
+warmly attached to the government of the Union, at times when the
+particular rulers of particular States, stimulated by the natural
+rivalship of power, and by the hopes of personal aggrandizement,
+and supported by a strong faction in each of those States, may be
+in a very opposite temper. This diversity of sentiment between a
+majority of the people, and the individuals who have the
+greatest credit in their councils, is exemplified in some of the
+States at the present moment, on the present question. The
+scheme of separate confederacies, which will always multiply the
+chances of ambition, will be a never failing bait to all such
+influential characters in the State administrations as are
+capable of preferring their own emolument and advancement to the
+public weal. With so effectual a weapon in their hands as the
+exclusive power of regulating elections for the national
+government, a combination of a few such men, in a few of the most
+considerable States, where the temptation will always be the
+strongest, might accomplish the destruction of the Union, by
+seizing the opportunity of some casual dissatisfaction among the
+people (and which perhaps they may themselves have excited), to
+discontinue the choice of members for the federal House of
+Representatives. It ought never to be forgotten, that a firm
+union of this country, under an efficient government, will
+probably be an increasing object of jealousy to more than one
+nation of Europe; and that enterprises to subvert it will
+sometimes originate in the intrigues of foreign powers, and will
+seldom fail to be patronized and abetted by some of them. Its
+preservation, therefore ought in no case that can be avoided, to
+be committed to the guardianship of any but those whose situation
+will uniformly beget an immediate interest in the faithful and
+vigilant performance of the trust. PUBLIUS. Ist clause, 4th
+section, of the Ist article.
+
+
+FEDERALIST No. 60
+
+The Same Subject Continued
+(Concerning the Power of Congress to Regulate the Election of
+ Members)
+From the New York Packet.
+Tuesday, February 26, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+WE HAVE seen, that an uncontrollable power over the elections to
+ the federal government could not, without hazard, be committed to
+ the State legislatures. Let us now see, what would be the danger on
+ the other side; that is, from confiding the ultimate right of
+ regulating its own elections to the Union itself. It is not
+ pretended, that this right would ever be used for the exclusion of
+ any State from its share in the representation. The interest of all
+ would, in this respect at least, be the security of all. But it is
+ alleged, that it might be employed in such a manner as to promote
+ the election of some favorite class of men in exclusion of others,
+ by confining the places of election to particular districts, and
+ rendering it impracticable to the citizens at large to partake in
+ the choice. Of all chimerical suppositions, this seems to be the
+ most chimerical. On the one hand, no rational calculation of
+ probabilities would lead us to imagine that the disposition which a
+ conduct so violent and extraordinary would imply, could ever find
+ its way into the national councils; and on the other, it may be
+ concluded with certainty, that if so improper a spirit should ever
+ gain admittance into them, it would display itself in a form
+ altogether different and far more decisive.
+The improbability of the attempt may be satisfactorily inferred
+ from this single reflection, that it could never be made without
+ causing an immediate revolt of the great body of the people, headed
+ and directed by the State governments. It is not difficult to
+ conceive that this characteristic right of freedom may, in certain
+ turbulent and factious seasons, be violated, in respect to a
+ particular class of citizens, by a victorious and overbearing
+ majority; but that so fundamental a privilege, in a country so
+ situated and enlightened, should be invaded to the prejudice of the
+ great mass of the people, by the deliberate policy of the
+ government, without occasioning a popular revolution, is altogether
+ inconceivable and incredible.
+In addition to this general reflection, there are considerations
+ of a more precise nature, which forbid all apprehension on the
+ subject. The dissimilarity in the ingredients which will compose
+ the national government, and still more in the manner in which they
+ will be brought into action in its various branches, must form a
+ powerful obstacle to a concert of views in any partial scheme of
+ elections. There is sufficient diversity in the state of property,
+ in the genius, manners, and habits of the people of the different
+ parts of the Union, to occasion a material diversity of disposition
+ in their representatives towards the different ranks and conditions
+ in society. And though an intimate intercourse under the same
+ government will promote a gradual assimilation in some of these
+ respects, yet there are causes, as well physical as moral, which
+ may, in a greater or less degree, permanently nourish different
+ propensities and inclinations in this respect. But the circumstance
+ which will be likely to have the greatest influence in the matter,
+ will be the dissimilar modes of constituting the several component
+ parts of the government. The House of Representatives being to be
+ elected immediately by the people, the Senate by the State
+ legislatures, the President by electors chosen for that purpose by
+ the people, there would be little probability of a common interest
+ to cement these different branches in a predilection for any
+ particular class of electors.
+As to the Senate, it is impossible that any regulation of ``time
+ and manner,'' which is all that is proposed to be submitted to the
+ national government in respect to that body, can affect the spirit
+ which will direct the choice of its members. The collective sense
+ of the State legislatures can never be influenced by extraneous
+ circumstances of that sort; a consideration which alone ought to
+ satisfy us that the discrimination apprehended would never be
+ attempted. For what inducement could the Senate have to concur in a
+ preference in which itself would not be included? Or to what
+ purpose would it be established, in reference to one branch of the
+ legislature, if it could not be extended to the other? The
+ composition of the one would in this case counteract that of the
+ other. And we can never suppose that it would embrace the
+ appointments to the Senate, unless we can at the same time suppose
+ the voluntary co-operation of the State legislatures. If we make
+ the latter supposition, it then becomes immaterial where the power
+ in question is placed whether in their hands or in those of the
+ Union.
+But what is to be the object of this capricious partiality in
+ the national councils? Is it to be exercised in a discrimination
+ between the different departments of industry, or between the
+ different kinds of property, or between the different degrees of
+ property? Will it lean in favor of the landed interest, or the
+ moneyed interest, or the mercantile interest, or the manufacturing
+ interest? Or, to speak in the fashionable language of the
+ adversaries to the Constitution, will it court the elevation of
+ ``the wealthy and the well-born,'' to the exclusion and debasement
+ of all the rest of the society?
+If this partiality is to be exerted in favor of those who are
+ concerned in any particular description of industry or property, I
+ presume it will readily be admitted, that the competition for it
+ will lie between landed men and merchants. And I scruple not to
+ affirm, that it is infinitely less likely that either of them should
+ gain an ascendant in the national councils, than that the one or the
+ other of them should predominate in all the local councils. The
+ inference will be, that a conduct tending to give an undue
+ preference to either is much less to be dreaded from the former than
+ from the latter.
+The several States are in various degrees addicted to
+ agriculture and commerce. In most, if not all of them, agriculture
+ is predominant. In a few of them, however, commerce nearly divides
+ its empire, and in most of them has a considerable share of
+ influence. In proportion as either prevails, it will be conveyed
+ into the national representation; and for the very reason, that
+ this will be an emanation from a greater variety of interests, and
+ in much more various proportions, than are to be found in any single
+ State, it will be much less apt to espouse either of them with a
+ decided partiality, than the representation of any single State.
+In a country consisting chiefly of the cultivators of land,
+ where the rules of an equal representation obtain, the landed
+ interest must, upon the whole, preponderate in the government. As
+ long as this interest prevails in most of the State legislatures, so
+ long it must maintain a correspondent superiority in the national
+ Senate, which will generally be a faithful copy of the majorities of
+ those assemblies. It cannot therefore be presumed, that a sacrifice
+ of the landed to the mercantile class will ever be a favorite object
+ of this branch of the federal legislature. In applying thus
+ particularly to the Senate a general observation suggested by the
+ situation of the country, I am governed by the consideration, that
+ the credulous votaries of State power cannot, upon their own
+ principles, suspect, that the State legislatures would be warped
+ from their duty by any external influence. But in reality the same
+ situation must have the same effect, in the primative composition at
+ least of the federal House of Representatives: an improper bias
+ towards the mercantile class is as little to be expected from this
+ quarter as from the other.
+In order, perhaps, to give countenance to the objection at any
+ rate, it may be asked, is there not danger of an opposite bias in
+ the national government, which may dispose it to endeavor to secure
+ a monopoly of the federal administration to the landed class? As
+ there is little likelihood that the supposition of such a bias will
+ have any terrors for those who would be immediately injured by it, a
+ labored answer to this question will be dispensed with. It will be
+ sufficient to remark, first, that for the reasons elsewhere
+ assigned, it is less likely that any decided partiality should
+ prevail in the councils of the Union than in those of any of its
+ members. Secondly, that there would be no temptation to violate the
+ Constitution in favor of the landed class, because that class would,
+ in the natural course of things, enjoy as great a preponderancy as
+ itself could desire. And thirdly, that men accustomed to
+ investigate the sources of public prosperity upon a large scale,
+ must be too well convinced of the utility of commerce, to be
+ inclined to inflict upon it so deep a wound as would result from the
+ entire exclusion of those who would best understand its interest
+ from a share in the management of them. The importance of commerce,
+ in the view of revenue alone, must effectually guard it against the
+ enmity of a body which would be continually importuned in its favor,
+ by the urgent calls of public necessity.
+I the rather consult brevity in discussing the probability of a
+ preference founded upon a discrimination between the different kinds
+ of industry and property, because, as far as I understand the
+ meaning of the objectors, they contemplate a discrimination of
+ another kind. They appear to have in view, as the objects of the
+ preference with which they endeavor to alarm us, those whom they
+ designate by the description of ``the wealthy and the well-born.''
+ These, it seems, are to be exalted to an odious pre-eminence over
+ the rest of their fellow-citizens. At one time, however, their
+ elevation is to be a necessary consequence of the smallness of the
+ representative body; at another time it is to be effected by
+ depriving the people at large of the opportunity of exercising their
+ right of suffrage in the choice of that body.
+But upon what principle is the discrimination of the places of
+ election to be made, in order to answer the purpose of the meditated
+ preference? Are ``the wealthy and the well-born,'' as they are
+ called, confined to particular spots in the several States? Have
+ they, by some miraculous instinct or foresight, set apart in each of
+ them a common place of residence? Are they only to be met with in
+ the towns or cities? Or are they, on the contrary, scattered over
+ the face of the country as avarice or chance may have happened to
+ cast their own lot or that of their predecessors? If the latter is
+ the case, (as every intelligent man knows it to be,1) is it not
+ evident that the policy of confining the places of election to
+ particular districts would be as subversive of its own aim as it
+ would be exceptionable on every other account? The truth is, that
+ there is no method of securing to the rich the preference
+ apprehended, but by prescribing qualifications of property either
+ for those who may elect or be elected. But this forms no part of
+ the power to be conferred upon the national government. Its
+ authority would be expressly restricted to the regulation of the
+ TIMES, the PLACES, the MANNER of elections. The qualifications of
+ the persons who may choose or be chosen, as has been remarked upon
+ other occasions, are defined and fixed in the Constitution, and are
+ unalterable by the legislature.
+Let it, however, be admitted, for argument sake, that the
+ expedient suggested might be successful; and let it at the same
+ time be equally taken for granted that all the scruples which a
+ sense of duty or an apprehension of the danger of the experiment
+ might inspire, were overcome in the breasts of the national rulers,
+ still I imagine it will hardly be pretended that they could ever
+ hope to carry such an enterprise into execution without the aid of a
+ military force sufficient to subdue the resistance of the great body
+ of the people. The improbability of the existence of a force equal
+ to that object has been discussed and demonstrated in different
+ parts of these papers; but that the futility of the objection under
+ consideration may appear in the strongest light, it shall be
+ conceded for a moment that such a force might exist, and the
+ national government shall be supposed to be in the actual possession
+ of it. What will be the conclusion? With a disposition to invade
+ the essential rights of the community, and with the means of
+ gratifying that disposition, is it presumable that the persons who
+ were actuated by it would amuse themselves in the ridiculous task of
+ fabricating election laws for securing a preference to a favorite
+ class of men? Would they not be likely to prefer a conduct better
+ adapted to their own immediate aggrandizement? Would they not
+ rather boldly resolve to perpetuate themselves in office by one
+ decisive act of usurpation, than to trust to precarious expedients
+ which, in spite of all the precautions that might accompany them,
+ might terminate in the dismission, disgrace, and ruin of their
+ authors? Would they not fear that citizens, not less tenacious than
+ conscious of their rights, would flock from the remote extremes of
+ their respective States to the places of election, to overthrow
+ their tyrants, and to substitute men who would be disposed to avenge
+ the violated majesty of the people?
+PUBLIUS.
+1 Particularly in the Southern States and in this State.
+
+
+FEDERALIST No. 61
+
+The Same Subject Continued
+(Concerning the Power of Congress to Regulate the Election of
+ Members)
+From the New York Packet.
+Tuesday, February 26, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE more candid opposers of the provision respecting elections,
+ contained in the plan of the convention, when pressed in argument,
+ will sometimes concede the propriety of that provision; with this
+ qualification, however, that it ought to have been accompanied with
+ a declaration, that all elections should be had in the counties
+ where the electors resided. This, say they, was a necessary
+ precaution against an abuse of the power. A declaration of this
+ nature would certainly have been harmless; so far as it would have
+ had the effect of quieting apprehensions, it might not have been
+ undesirable. But it would, in fact, have afforded little or no
+ additional security against the danger apprehended; and the want of
+ it will never be considered, by an impartial and judicious examiner,
+ as a serious, still less as an insuperable, objection to the plan.
+ The different views taken of the subject in the two preceding
+ papers must be sufficient to satisfy all dispassionate and
+ discerning men, that if the public liberty should ever be the victim
+ of the ambition of the national rulers, the power under examination,
+ at least, will be guiltless of the sacrifice.
+If those who are inclined to consult their jealousy only, would
+ exercise it in a careful inspection of the several State
+ constitutions, they would find little less room for disquietude and
+ alarm, from the latitude which most of them allow in respect to
+ elections, than from the latitude which is proposed to be allowed to
+ the national government in the same respect. A review of their
+ situation, in this particular, would tend greatly to remove any ill
+ impressions which may remain in regard to this matter. But as that
+ view would lead into long and tedious details, I shall content
+ myself with the single example of the State in which I write. The
+ constitution of New York makes no other provision for LOCALITY of
+ elections, than that the members of the Assembly shall be elected in
+ the COUNTIES; those of the Senate, in the great districts into
+ which the State is or may be divided: these at present are four in
+ number, and comprehend each from two to six counties. It may
+ readily be perceived that it would not be more difficult to the
+ legislature of New York to defeat the suffrages of the citizens of
+ New York, by confining elections to particular places, than for the
+ legislature of the United States to defeat the suffrages of the
+ citizens of the Union, by the like expedient. Suppose, for
+ instance, the city of Albany was to be appointed the sole place of
+ election for the county and district of which it is a part, would
+ not the inhabitants of that city speedily become the only electors
+ of the members both of the Senate and Assembly for that county and
+ district? Can we imagine that the electors who reside in the remote
+ subdivisions of the counties of Albany, Saratoga, Cambridge, etc.,
+ or in any part of the county of Montgomery, would take the trouble
+ to come to the city of Albany, to give their votes for members of
+ the Assembly or Senate, sooner than they would repair to the city of
+ New York, to participate in the choice of the members of the federal
+ House of Representatives? The alarming indifference discoverable in
+ the exercise of so invaluable a privilege under the existing laws,
+ which afford every facility to it, furnishes a ready answer to this
+ question. And, abstracted from any experience on the subject, we
+ can be at no loss to determine, that when the place of election is
+ at an INCONVENIENT DISTANCE from the elector, the effect upon his
+ conduct will be the same whether that distance be twenty miles or
+ twenty thousand miles. Hence it must appear, that objections to the
+ particular modification of the federal power of regulating elections
+ will, in substance, apply with equal force to the modification of
+ the like power in the constitution of this State; and for this
+ reason it will be impossible to acquit the one, and to condemn the
+ other. A similar comparison would lead to the same conclusion in
+ respect to the constitutions of most of the other States.
+If it should be said that defects in the State constitutions
+ furnish no apology for those which are to be found in the plan
+ proposed, I answer, that as the former have never been thought
+ chargeable with inattention to the security of liberty, where the
+ imputations thrown on the latter can be shown to be applicable to
+ them also, the presumption is that they are rather the cavilling
+ refinements of a predetermined opposition, than the well-founded
+ inferences of a candid research after truth. To those who are
+ disposed to consider, as innocent omissions in the State
+ constitutions, what they regard as unpardonable blemishes in the
+ plan of the convention, nothing can be said; or at most, they can
+ only be asked to assign some substantial reason why the
+ representatives of the people in a single State should be more
+ impregnable to the lust of power, or other sinister motives, than
+ the representatives of the people of the United States? If they
+ cannot do this, they ought at least to prove to us that it is easier
+ to subvert the liberties of three millions of people, with the
+ advantage of local governments to head their opposition, than of two
+ hundred thousand people who are destitute of that advantage. And in
+ relation to the point immediately under consideration, they ought to
+ convince us that it is less probable that a predominant faction in a
+ single State should, in order to maintain its superiority, incline
+ to a preference of a particular class of electors, than that a
+ similar spirit should take possession of the representatives of
+ thirteen States, spread over a vast region, and in several respects
+ distinguishable from each other by a diversity of local
+ circumstances, prejudices, and interests.
+Hitherto my observations have only aimed at a vindication of the
+ provision in question, on the ground of theoretic propriety, on that
+ of the danger of placing the power elsewhere, and on that of the
+ safety of placing it in the manner proposed. But there remains to
+ be mentioned a positive advantage which will result from this
+ disposition, and which could not as well have been obtained from any
+ other: I allude to the circumstance of uniformity in the time of
+ elections for the federal House of Representatives. It is more than
+ possible that this uniformity may be found by experience to be of
+ great importance to the public welfare, both as a security against
+ the perpetuation of the same spirit in the body, and as a cure for
+ the diseases of faction. If each State may choose its own time of
+ election, it is possible there may be at least as many different
+ periods as there are months in the year. The times of election in
+ the several States, as they are now established for local purposes,
+ vary between extremes as wide as March and November. The
+ consequence of this diversity would be that there could never happen
+ a total dissolution or renovation of the body at one time. If an
+ improper spirit of any kind should happen to prevail in it, that
+ spirit would be apt to infuse itself into the new members, as they
+ come forward in succession. The mass would be likely to remain
+ nearly the same, assimilating constantly to itself its gradual
+ accretions. There is a contagion in example which few men have
+ sufficient force of mind to resist. I am inclined to think that
+ treble the duration in office, with the condition of a total
+ dissolution of the body at the same time, might be less formidable
+ to liberty than one third of that duration subject to gradual and
+ successive alterations.
+Uniformity in the time of elections seems not less requisite for
+ executing the idea of a regular rotation in the Senate, and for
+ conveniently assembling the legislature at a stated period in each
+ year.
+It may be asked, Why, then, could not a time have been fixed in
+ the Constitution? As the most zealous adversaries of the plan of
+ the convention in this State are, in general, not less zealous
+ admirers of the constitution of the State, the question may be
+ retorted, and it may be asked, Why was not a time for the like
+ purpose fixed in the constitution of this State? No better answer
+ can be given than that it was a matter which might safely be
+ entrusted to legislative discretion; and that if a time had been
+ appointed, it might, upon experiment, have been found less
+ convenient than some other time. The same answer may be given to
+ the question put on the other side. And it may be added that the
+ supposed danger of a gradual change being merely speculative, it
+ would have been hardly advisable upon that speculation to establish,
+ as a fundamental point, what would deprive several States of the
+ convenience of having the elections for their own governments and
+ for the national government at the same epochs.
+PUBLIUS.
+
+
+FEDERALIST No. 62
+
+The Senate
+For the Independent Journal.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+HAVING examined the constitution of the House of
+ Representatives, and answered such of the objections against it as
+ seemed to merit notice, I enter next on the examination of the
+ Senate.
+The heads into which this member of the government may be
+ considered are: I. The qualification of senators; II. The
+ appointment of them by the State legislatures; III. The equality of
+ representation in the Senate; IV. The number of senators, and the
+ term for which they are to be elected; V. The powers vested in the
+ Senate.
+I. The qualifications proposed for senators, as distinguished
+ from those of representatives, consist in a more advanced age and a
+ longer period of citizenship. A senator must be thirty years of age
+ at least; as a representative must be twenty-five. And the former
+ must have been a citizen nine years; as seven years are required
+ for the latter. The propriety of these distinctions is explained by
+ the nature of the senatorial trust, which, requiring greater extent
+ of information and stability of character, requires at the same time
+ that the senator should have reached a period of life most likely to
+ supply these advantages; and which, participating immediately in
+ transactions with foreign nations, ought to be exercised by none who
+ are not thoroughly weaned from the prepossessions and habits
+ incident to foreign birth and education. The term of nine years
+ appears to be a prudent mediocrity between a total exclusion of
+ adopted citizens, whose merits and talents may claim a share in the
+ public confidence, and an indiscriminate and hasty admission of
+ them, which might create a channel for foreign influence on the
+ national councils.
+II. It is equally unnecessary to dilate on the appointment of
+ senators by the State legislatures. Among the various modes which
+ might have been devised for constituting this branch of the
+ government, that which has been proposed by the convention is
+ probably the most congenial with the public opinion. It is
+ recommended by the double advantage of favoring a select
+ appointment, and of giving to the State governments such an agency
+ in the formation of the federal government as must secure the
+ authority of the former, and may form a convenient link between the
+ two systems.
+III. The equality of representation in the Senate is another
+ point, which, being evidently the result of compromise between the
+ opposite pretensions of the large and the small States, does not
+ call for much discussion. If indeed it be right, that among a
+ people thoroughly incorporated into one nation, every district ought
+ to have a PROPORTIONAL share in the government, and that among
+ independent and sovereign States, bound together by a simple league,
+ the parties, however unequal in size, ought to have an EQUAL share
+ in the common councils, it does not appear to be without some reason
+ that in a compound republic, partaking both of the national and
+ federal character, the government ought to be founded on a mixture
+ of the principles of proportional and equal representation. But it
+ is superfluous to try, by the standard of theory, a part of the
+ Constitution which is allowed on all hands to be the result, not of
+ theory, but ``of a spirit of amity, and that mutual deference and
+ concession which the peculiarity of our political situation rendered
+ indispensable.'' A common government, with powers equal to its
+ objects, is called for by the voice, and still more loudly by the
+ political situation, of America. A government founded on principles
+ more consonant to the wishes of the larger States, is not likely to
+ be obtained from the smaller States. The only option, then, for the
+ former, lies between the proposed government and a government still
+ more objectionable. Under this alternative, the advice of prudence
+ must be to embrace the lesser evil; and, instead of indulging a
+ fruitless anticipation of the possible mischiefs which may ensue, to
+ contemplate rather the advantageous consequences which may qualify
+ the sacrifice.
+In this spirit it may be remarked, that the equal vote allowed
+ to each State is at once a constitutional recognition of the portion
+ of sovereignty remaining in the individual States, and an instrument
+ for preserving that residuary sovereignty. So far the equality
+ ought to be no less acceptable to the large than to the small
+ States; since they are not less solicitous to guard, by every
+ possible expedient, against an improper consolidation of the States
+ into one simple republic.
+Another advantage accruing from this ingredient in the
+ constitution of the Senate is, the additional impediment it must
+ prove against improper acts of legislation. No law or resolution
+ can now be passed without the concurrence, first, of a majority of
+ the people, and then, of a majority of the States. It must be
+ acknowledged that this complicated check on legislation may in some
+ instances be injurious as well as beneficial; and that the peculiar
+ defense which it involves in favor of the smaller States, would be
+ more rational, if any interests common to them, and distinct from
+ those of the other States, would otherwise be exposed to peculiar
+ danger. But as the larger States will always be able, by their
+ power over the supplies, to defeat unreasonable exertions of this
+ prerogative of the lesser States, and as the faculty and excess of
+ law-making seem to be the diseases to which our governments are most
+ liable, it is not impossible that this part of the Constitution may
+ be more convenient in practice than it appears to many in
+ contemplation.
+IV. The number of senators, and the duration of their
+ appointment, come next to be considered. In order to form an
+ accurate judgment on both of these points, it will be proper to
+ inquire into the purposes which are to be answered by a senate; and
+ in order to ascertain these, it will be necessary to review the
+ inconveniences which a republic must suffer from the want of such an
+ institution.
+First. It is a misfortune incident to republican
+ government, though in a less degree than to other governments, that
+ those who administer it may forget their obligations to their
+ constituents, and prove unfaithful to their important trust. In
+ this point of view, a senate, as a second branch of the legislative
+ assembly, distinct from, and dividing the power with, a first, must
+ be in all cases a salutary check on the government. It doubles the
+ security to the people, by requiring the concurrence of two distinct
+ bodies in schemes of usurpation or perfidy, where the ambition or
+ corruption of one would otherwise be sufficient. This is a
+ precaution founded on such clear principles, and now so well
+ understood in the United States, that it would be more than
+ superfluous to enlarge on it. I will barely remark, that as the
+ improbability of sinister combinations will be in proportion to the
+ dissimilarity in the genius of the two bodies, it must be politic to
+ distinguish them from each other by every circumstance which will
+ consist with a due harmony in all proper measures, and with the
+ genuine principles of republican government.
+Secondly. The necessity of a senate is not less indicated
+ by the propensity of all single and numerous assemblies to yield to
+ the impulse of sudden and violent passions, and to be seduced by
+ factious leaders into intemperate and pernicious resolutions.
+ Examples on this subject might be cited without number; and from
+ proceedings within the United States, as well as from the history of
+ other nations. But a position that will not be contradicted, need
+ not be proved. All that need be remarked is, that a body which is
+ to correct this infirmity ought itself to be free from it, and
+ consequently ought to be less numerous. It ought, moreover, to
+ possess great firmness, and consequently ought to hold its authority
+ by a tenure of considerable duration.
+Thirdly. Another defect to be supplied by a senate lies in
+ a want of due acquaintance with the objects and principles of
+ legislation. It is not possible that an assembly of men called for
+ the most part from pursuits of a private nature, continued in
+ appointment for a short time, and led by no permanent motive to
+ devote the intervals of public occupation to a study of the laws,
+ the affairs, and the comprehensive interests of their country,
+ should, if left wholly to themselves, escape a variety of important
+ errors in the exercise of their legislative trust. It may be
+ affirmed, on the best grounds, that no small share of the present
+ embarrassments of America is to be charged on the blunders of our
+ governments; and that these have proceeded from the heads rather
+ than the hearts of most of the authors of them. What indeed are all
+ the repealing, explaining, and amending laws, which fill and
+ disgrace our voluminous codes, but so many monuments of deficient
+ wisdom; so many impeachments exhibited by each succeeding against
+ each preceding session; so many admonitions to the people, of the
+ value of those aids which may be expected from a well-constituted
+ senate?
+A good government implies two things: first, fidelity to the
+ object of government, which is the happiness of the people;
+ secondly, a knowledge of the means by which that object can be best
+ attained. Some governments are deficient in both these qualities;
+ most governments are deficient in the first. I scruple not to
+ assert, that in American governments too little attention has been
+ paid to the last. The federal Constitution avoids this error; and
+ what merits particular notice, it provides for the last in a mode
+ which increases the security for the first.
+Fourthly. The mutability in the public councils arising
+ from a rapid succession of new members, however qualified they may
+ be, points out, in the strongest manner, the necessity of some
+ stable institution in the government. Every new election in the
+ States is found to change one half of the representatives. From
+ this change of men must proceed a change of opinions; and from a
+ change of opinions, a change of measures. But a continual change
+ even of good measures is inconsistent with every rule of prudence
+ and every prospect of success. The remark is verified in private
+ life, and becomes more just, as well as more important, in national
+ transactions.
+To trace the mischievous effects of a mutable government would
+ fill a volume. I will hint a few only, each of which will be
+ perceived to be a source of innumerable others.
+In the first place, it forfeits the respect and confidence of
+ other nations, and all the advantages connected with national
+ character. An individual who is observed to be inconstant to his
+ plans, or perhaps to carry on his affairs without any plan at all,
+ is marked at once, by all prudent people, as a speedy victim to his
+ own unsteadiness and folly. His more friendly neighbors may pity
+ him, but all will decline to connect their fortunes with his; and
+ not a few will seize the opportunity of making their fortunes out of
+ his. One nation is to another what one individual is to another;
+ with this melancholy distinction perhaps, that the former, with
+ fewer of the benevolent emotions than the latter, are under fewer
+ restraints also from taking undue advantage from the indiscretions
+ of each other. Every nation, consequently, whose affairs betray a
+ want of wisdom and stability, may calculate on every loss which can
+ be sustained from the more systematic policy of their wiser
+ neighbors. But the best instruction on this subject is unhappily
+ conveyed to America by the example of her own situation. She finds
+ that she is held in no respect by her friends; that she is the
+ derision of her enemies; and that she is a prey to every nation
+ which has an interest in speculating on her fluctuating councils and
+ embarrassed affairs.
+The internal effects of a mutable policy are still more
+ calamitous. It poisons the blessing of liberty itself. It will be
+ of little avail to the people, that the laws are made by men of
+ their own choice, if the laws be so voluminous that they cannot be
+ read, or so incoherent that they cannot be understood; if they be
+ repealed or revised before they are promulgated, or undergo such
+ incessant changes that no man, who knows what the law is to-day, can
+ guess what it will be to-morrow. Law is defined to be a rule of
+ action; but how can that be a rule, which is little known, and less
+ fixed?
+Another effect of public instability is the unreasonable
+ advantage it gives to the sagacious, the enterprising, and the
+ moneyed few over the industrious and uniformed mass of the people.
+ Every new regulation concerning commerce or revenue, or in any way
+ affecting the value of the different species of property, presents a
+ new harvest to those who watch the change, and can trace its
+ consequences; a harvest, reared not by themselves, but by the toils
+ and cares of the great body of their fellow-citizens. This is a
+ state of things in which it may be said with some truth that laws
+ are made for the FEW, not for the MANY.
+In another point of view, great injury results from an unstable
+ government. The want of confidence in the public councils damps
+ every useful undertaking, the success and profit of which may depend
+ on a continuance of existing arrangements. What prudent merchant
+ will hazard his fortunes in any new branch of commerce when he knows
+ not but that his plans may be rendered unlawful before they can be
+ executed? What farmer or manufacturer will lay himself out for the
+ encouragement given to any particular cultivation or establishment,
+ when he can have no assurance that his preparatory labors and
+ advances will not render him a victim to an inconstant government?
+ In a word, no great improvement or laudable enterprise can go
+ forward which requires the auspices of a steady system of national
+ policy.
+But the most deplorable effect of all is that diminution of
+ attachment and reverence which steals into the hearts of the people,
+ towards a political system which betrays so many marks of infirmity,
+ and disappoints so many of their flattering hopes. No government,
+ any more than an individual, will long be respected without being
+ truly respectable; nor be truly respectable, without possessing a
+ certain portion of order and stability.
+PUBLIUS.
+
+
+FEDERALIST. No. 63
+
+The Senate Continued
+For the Independent Journal.
+
+HAMILTON OR MADISON
+
+To the People of the State of New York:
+A FIFTH desideratum, illustrating the utility of a senate, is
+ the want of a due sense of national character. Without a select and
+ stable member of the government, the esteem of foreign powers will
+ not only be forfeited by an unenlightened and variable policy,
+ proceeding from the causes already mentioned, but the national
+ councils will not possess that sensibility to the opinion of the
+ world, which is perhaps not less necessary in order to merit, than
+ it is to obtain, its respect and confidence.
+An attention to the judgment of other nations is important to
+ every government for two reasons: the one is, that, independently
+ of the merits of any particular plan or measure, it is desirable, on
+ various accounts, that it should appear to other nations as the
+ offspring of a wise and honorable policy; the second is, that in
+ doubtful cases, particularly where the national councils may be
+ warped by some strong passion or momentary interest, the presumed or
+ known opinion of the impartial world may be the best guide that can
+ be followed. What has not America lost by her want of character
+ with foreign nations; and how many errors and follies would she not
+ have avoided, if the justice and propriety of her measures had, in
+ every instance, been previously tried by the light in which they
+ would probably appear to the unbiased part of mankind?
+Yet however requisite a sense of national character may be, it
+ is evident that it can never be sufficiently possessed by a numerous
+ and changeable body. It can only be found in a number so small that
+ a sensible degree of the praise and blame of public measures may be
+ the portion of each individual; or in an assembly so durably
+ invested with public trust, that the pride and consequence of its
+ members may be sensibly incorporated with the reputation and
+ prosperity of the community. The half-yearly representatives of
+ Rhode Island would probably have been little affected in their
+ deliberations on the iniquitous measures of that State, by arguments
+ drawn from the light in which such measures would be viewed by
+ foreign nations, or even by the sister States; whilst it can
+ scarcely be doubted that if the concurrence of a select and stable
+ body had been necessary, a regard to national character alone would
+ have prevented the calamities under which that misguided people is
+ now laboring.
+I add, as a SIXTH defect the want, in some important cases, of a
+ due responsibility in the government to the people, arising from
+ that frequency of elections which in other cases produces this
+ responsibility. This remark will, perhaps, appear not only new, but
+ paradoxical. It must nevertheless be acknowledged, when explained,
+ to be as undeniable as it is important.
+Responsibility, in order to be reasonable, must be limited to
+ objects within the power of the responsible party, and in order to
+ be effectual, must relate to operations of that power, of which a
+ ready and proper judgment can be formed by the constituents. The
+ objects of government may be divided into two general classes: the
+ one depending on measures which have singly an immediate and
+ sensible operation; the other depending on a succession of
+ well-chosen and well-connected measures, which have a gradual and
+ perhaps unobserved operation. The importance of the latter
+ description to the collective and permanent welfare of every
+ country, needs no explanation. And yet it is evident that an
+ assembly elected for so short a term as to be unable to provide more
+ than one or two links in a chain of measures, on which the general
+ welfare may essentially depend, ought not to be answerable for the
+ final result, any more than a steward or tenant, engaged for one
+ year, could be justly made to answer for places or improvements
+ which could not be accomplished in less than half a dozen years.
+ Nor is it possible for the people to estimate the SHARE of
+ influence which their annual assemblies may respectively have on
+ events resulting from the mixed transactions of several years. It
+ is sufficiently difficult to preserve a personal responsibility in
+ the members of a NUMEROUS body, for such acts of the body as have an
+ immediate, detached, and palpable operation on its constituents.
+The proper remedy for this defect must be an additional body in
+ the legislative department, which, having sufficient permanency to
+ provide for such objects as require a continued attention, and a
+ train of measures, may be justly and effectually answerable for the
+ attainment of those objects.
+Thus far I have considered the circumstances which point out the
+ necessity of a well-constructed Senate only as they relate to the
+ representatives of the people. To a people as little blinded by
+ prejudice or corrupted by flattery as those whom I address, I shall
+ not scruple to add, that such an institution may be sometimes
+ necessary as a defense to the people against their own temporary
+ errors and delusions. As the cool and deliberate sense of the
+ community ought, in all governments, and actually will, in all free
+ governments, ultimately prevail over the views of its rulers; so
+ there are particular moments in public affairs when the people,
+ stimulated by some irregular passion, or some illicit advantage, or
+ misled by the artful misrepresentations of interested men, may call
+ for measures which they themselves will afterwards be the most ready
+ to lament and condemn. In these critical moments, how salutary will
+ be the interference of some temperate and respectable body of
+ citizens, in order to check the misguided career, and to suspend the
+ blow meditated by the people against themselves, until reason,
+ justice, and truth can regain their authority over the public mind?
+ What bitter anguish would not the people of Athens have often
+ escaped if their government had contained so provident a safeguard
+ against the tyranny of their own passions? Popular liberty might
+ then have escaped the indelible reproach of decreeing to the same
+ citizens the hemlock on one day and statues on the next.
+It may be suggested, that a people spread over an extensive
+ region cannot, like the crowded inhabitants of a small district, be
+ subject to the infection of violent passions, or to the danger of
+ combining in pursuit of unjust measures. I am far from denying that
+ this is a distinction of peculiar importance. I have, on the
+ contrary, endeavored in a former paper to show, that it is one of
+ the principal recommendations of a confederated republic. At the
+ same time, this advantage ought not to be considered as superseding
+ the use of auxiliary precautions. It may even be remarked, that the
+ same extended situation, which will exempt the people of America
+ from some of the dangers incident to lesser republics, will expose
+ them to the inconveniency of remaining for a longer time under the
+ influence of those misrepresentations which the combined industry of
+ interested men may succeed in distributing among them.
+It adds no small weight to all these considerations, to
+ recollect that history informs us of no long-lived republic which
+ had not a senate. Sparta, Rome, and Carthage are, in fact, the only
+ states to whom that character can be applied. In each of the two
+ first there was a senate for life. The constitution of the senate
+ in the last is less known. Circumstantial evidence makes it
+ probable that it was not different in this particular from the two
+ others. It is at least certain, that it had some quality or other
+ which rendered it an anchor against popular fluctuations; and that
+ a smaller council, drawn out of the senate, was appointed not only
+ for life, but filled up vacancies itself. These examples, though as
+ unfit for the imitation, as they are repugnant to the genius, of
+ America, are, notwithstanding, when compared with the fugitive and
+ turbulent existence of other ancient republics, very instructive
+ proofs of the necessity of some institution that will blend
+ stability with liberty. I am not unaware of the circumstances which
+ distinguish the American from other popular governments, as well
+ ancient as modern; and which render extreme circumspection
+ necessary, in reasoning from the one case to the other. But after
+ allowing due weight to this consideration, it may still be
+ maintained, that there are many points of similitude which render
+ these examples not unworthy of our attention. Many of the defects,
+ as we have seen, which can only be supplied by a senatorial
+ institution, are common to a numerous assembly frequently elected by
+ the people, and to the people themselves. There are others peculiar
+ to the former, which require the control of such an institution.
+ The people can never wilfully betray their own interests; but they
+ may possibly be betrayed by the representatives of the people; and
+ the danger will be evidently greater where the whole legislative
+ trust is lodged in the hands of one body of men, than where the
+ concurrence of separate and dissimilar bodies is required in every
+ public act.
+The difference most relied on, between the American and other
+ republics, consists in the principle of representation; which is
+ the pivot on which the former move, and which is supposed to have
+ been unknown to the latter, or at least to the ancient part of them.
+ The use which has been made of this difference, in reasonings
+ contained in former papers, will have shown that I am disposed
+ neither to deny its existence nor to undervalue its importance. I
+ feel the less restraint, therefore, in observing, that the position
+ concerning the ignorance of the ancient governments on the subject
+ of representation, is by no means precisely true in the latitude
+ commonly given to it. Without entering into a disquisition which
+ here would be misplaced, I will refer to a few known facts, in
+ support of what I advance.
+In the most pure democracies of Greece, many of the executive
+ functions were performed, not by the people themselves, but by
+ officers elected by the people, and REPRESENTING the people in their
+ EXECUTIVE capacity.
+Prior to the reform of Solon, Athens was governed by nine
+ Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of
+ power delegated to them seems to be left in great obscurity.
+ Subsequent to that period, we find an assembly, first of four, and
+ afterwards of six hundred members, annually ELECTED BY THE PEOPLE;
+ and PARTIALLY representing them in their LEGISLATIVE capacity,
+ since they were not only associated with the people in the function
+ of making laws, but had the exclusive right of originating
+ legislative propositions to the people. The senate of Carthage,
+ also, whatever might be its power, or the duration of its
+ appointment, appears to have been ELECTIVE by the suffrages of the
+ people. Similar instances might be traced in most, if not all the
+ popular governments of antiquity.
+Lastly, in Sparta we meet with the Ephori, and in Rome with the
+ Tribunes; two bodies, small indeed in numbers, but annually ELECTED
+ BY THE WHOLE BODY OF THE PEOPLE, and considered as the
+ REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY
+ capacity. The Cosmi of Crete were also annually ELECTED BY THE
+ PEOPLE, and have been considered by some authors as an institution
+ analogous to those of Sparta and Rome, with this difference only,
+ that in the election of that representative body the right of
+ suffrage was communicated to a part only of the people.
+From these facts, to which many others might be added, it is
+ clear that the principle of representation was neither unknown to
+ the ancients nor wholly overlooked in their political constitutions.
+ The true distinction between these and the American governments,
+ lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE
+ CAPACITY, from any share in the LATTER, and not in the TOTAL
+ EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the
+ administration of the FORMER. The distinction, however, thus
+ qualified, must be admitted to leave a most advantageous superiority
+ in favor of the United States. But to insure to this advantage its
+ full effect, we must be careful not to separate it from the other
+ advantage, of an extensive territory. For it cannot be believed,
+ that any form of representative government could have succeeded
+ within the narrow limits occupied by the democracies of Greece.
+In answer to all these arguments, suggested by reason,
+ illustrated by examples, and enforced by our own experience, the
+ jealous adversary of the Constitution will probably content himself
+ with repeating, that a senate appointed not immediately by the
+ people, and for the term of six years, must gradually acquire a
+ dangerous pre-eminence in the government, and finally transform it
+ into a tyrannical aristocracy.
+To this general answer, the general reply ought to be
+ sufficient, that liberty may be endangered by the abuses of liberty
+ as well as by the abuses of power; that there are numerous
+ instances of the former as well as of the latter; and that the
+ former, rather than the latter, are apparently most to be
+ apprehended by the United States. But a more particular reply may
+ be given.
+Before such a revolution can be effected, the Senate, it is to
+ be observed, must in the first place corrupt itself; must next
+ corrupt the State legislatures; must then corrupt the House of
+ Representatives; and must finally corrupt the people at large. It
+ is evident that the Senate must be first corrupted before it can
+ attempt an establishment of tyranny. Without corrupting the State
+ legislatures, it cannot prosecute the attempt, because the
+ periodical change of members would otherwise regenerate the whole
+ body. Without exerting the means of corruption with equal success
+ on the House of Representatives, the opposition of that coequal
+ branch of the government would inevitably defeat the attempt; and
+ without corrupting the people themselves, a succession of new
+ representatives would speedily restore all things to their pristine
+ order. Is there any man who can seriously persuade himself that the
+ proposed Senate can, by any possible means within the compass of
+ human address, arrive at the object of a lawless ambition, through
+ all these obstructions?
+If reason condemns the suspicion, the same sentence is
+ pronounced by experience. The constitution of Maryland furnishes
+ the most apposite example. The Senate of that State is elected, as
+ the federal Senate will be, indirectly by the people, and for a term
+ less by one year only than the federal Senate. It is distinguished,
+ also, by the remarkable prerogative of filling up its own vacancies
+ within the term of its appointment, and, at the same time, is not
+ under the control of any such rotation as is provided for the
+ federal Senate. There are some other lesser distinctions, which
+ would expose the former to colorable objections, that do not lie
+ against the latter. If the federal Senate, therefore, really
+ contained the danger which has been so loudly proclaimed, some
+ symptoms at least of a like danger ought by this time to have been
+ betrayed by the Senate of Maryland, but no such symptoms have
+ appeared. On the contrary, the jealousies at first entertained by
+ men of the same description with those who view with terror the
+ correspondent part of the federal Constitution, have been gradually
+ extinguished by the progress of the experiment; and the Maryland
+ constitution is daily deriving, from the salutary operation of this
+ part of it, a reputation in which it will probably not be rivalled
+ by that of any State in the Union.
+But if any thing could silence the jealousies on this subject,
+ it ought to be the British example. The Senate there instead of
+ being elected for a term of six years, and of being unconfined to
+ particular families or fortunes, is an hereditary assembly of
+ opulent nobles. The House of Representatives, instead of being
+ elected for two years, and by the whole body of the people, is
+ elected for seven years, and, in very great proportion, by a very
+ small proportion of the people. Here, unquestionably, ought to be
+ seen in full display the aristocratic usurpations and tyranny which
+ are at some future period to be exemplified in the United States.
+ Unfortunately, however, for the anti-federal argument, the British
+ history informs us that this hereditary assembly has not been able
+ to defend itself against the continual encroachments of the House of
+ Representatives; and that it no sooner lost the support of the
+ monarch, than it was actually crushed by the weight of the popular
+ branch.
+As far as antiquity can instruct us on this subject, its
+ examples support the reasoning which we have employed. In Sparta,
+ the Ephori, the annual representatives of the people, were found an
+ overmatch for the senate for life, continually gained on its
+ authority and finally drew all power into their own hands. The
+ Tribunes of Rome, who were the representatives of the people,
+ prevailed, it is well known, in almost every contest with the senate
+ for life, and in the end gained the most complete triumph over it.
+ The fact is the more remarkable, as unanimity was required in every
+ act of the Tribunes, even after their number was augmented to ten.
+ It proves the irresistible force possessed by that branch of a free
+ government, which has the people on its side. To these examples
+ might be added that of Carthage, whose senate, according to the
+ testimony of Polybius, instead of drawing all power into its vortex,
+ had, at the commencement of the second Punic War, lost almost the
+ whole of its original portion.
+Besides the conclusive evidence resulting from this assemblage
+ of facts, that the federal Senate will never be able to transform
+ itself, by gradual usurpations, into an independent and aristocratic
+ body, we are warranted in believing, that if such a revolution
+ should ever happen from causes which the foresight of man cannot
+ guard against, the House of Representatives, with the people on
+ their side, will at all times be able to bring back the Constitution
+ to its primitive form and principles. Against the force of the
+ immediate representatives of the people, nothing will be able to
+ maintain even the constitutional authority of the Senate, but such a
+ display of enlightened policy, and attachment to the public good, as
+ will divide with that branch of the legislature the affections and
+ support of the entire body of the people themselves.
+PUBLIUS.
+
+
+FEDERALIST No. 64
+
+The Powers of the Senate
+From the New York Packet.
+Friday, March 7, 1788.
+
+JAY
+
+To the People of the State of New York:
+IT IS a just and not a new observation, that enemies to
+ particular persons, and opponents to particular measures, seldom
+ confine their censures to such things only in either as are worthy
+ of blame. Unless on this principle, it is difficult to explain the
+ motives of their conduct, who condemn the proposed Constitution in
+ the aggregate, and treat with severity some of the most
+ unexceptionable articles in it.
+The second section gives power to the President, ``BY AND WITH
+ THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO
+ THIRDS OF THE SENATORS PRESENT CONCUR.''
+The power of making treaties is an important one, especially as
+ it relates to war, peace, and commerce; and it should not be
+ delegated but in such a mode, and with such precautions, as will
+ afford the highest security that it will be exercised by men the
+ best qualified for the purpose, and in the manner most conducive to
+ the public good. The convention appears to have been attentive to
+ both these points: they have directed the President to be chosen by
+ select bodies of electors, to be deputed by the people for that
+ express purpose; and they have committed the appointment of
+ senators to the State legislatures. This mode has, in such cases,
+ vastly the advantage of elections by the people in their collective
+ capacity, where the activity of party zeal, taking the advantage of
+ the supineness, the ignorance, and the hopes and fears of the unwary
+ and interested, often places men in office by the votes of a small
+ proportion of the electors.
+As the select assemblies for choosing the President, as well as
+ the State legislatures who appoint the senators, will in general be
+ composed of the most enlightened and respectable citizens, there is
+ reason to presume that their attention and their votes will be
+ directed to those men only who have become the most distinguished by
+ their abilities and virtue, and in whom the people perceive just
+ grounds for confidence. The Constitution manifests very particular
+ attention to this object. By excluding men under thirty-five from
+ the first office, and those under thirty from the second, it
+ confines the electors to men of whom the people have had time to
+ form a judgment, and with respect to whom they will not be liable to
+ be deceived by those brilliant appearances of genius and patriotism,
+ which, like transient meteors, sometimes mislead as well as dazzle.
+ If the observation be well founded, that wise kings will always be
+ served by able ministers, it is fair to argue, that as an assembly
+ of select electors possess, in a greater degree than kings, the
+ means of extensive and accurate information relative to men and
+ characters, so will their appointments bear at least equal marks of
+ discretion and discernment. The inference which naturally results
+ from these considerations is this, that the President and senators
+ so chosen will always be of the number of those who best understand
+ our national interests, whether considered in relation to the
+ several States or to foreign nations, who are best able to promote
+ those interests, and whose reputation for integrity inspires and
+ merits confidence. With such men the power of making treaties may
+ be safely lodged.
+Although the absolute necessity of system, in the conduct of any
+ business, is universally known and acknowledged, yet the high
+ importance of it in national affairs has not yet become sufficiently
+ impressed on the public mind. They who wish to commit the power
+ under consideration to a popular assembly, composed of members
+ constantly coming and going in quick succession, seem not to
+ recollect that such a body must necessarily be inadequate to the
+ attainment of those great objects, which require to be steadily
+ contemplated in all their relations and circumstances, and which can
+ only be approached and achieved by measures which not only talents,
+ but also exact information, and often much time, are necessary to
+ concert and to execute. It was wise, therefore, in the convention
+ to provide, not only that the power of making treaties should be
+ committed to able and honest men, but also that they should continue
+ in place a sufficient time to become perfectly acquainted with our
+ national concerns, and to form and introduce a a system for the
+ management of them. The duration prescribed is such as will give
+ them an opportunity of greatly extending their political
+ information, and of rendering their accumulating experience more and
+ more beneficial to their country. Nor has the convention discovered
+ less prudence in providing for the frequent elections of senators in
+ such a way as to obviate the inconvenience of periodically
+ transferring those great affairs entirely to new men; for by
+ leaving a considerable residue of the old ones in place, uniformity
+ and order, as well as a constant succession of official information
+ will be preserved.
+There are a few who will not admit that the affairs of trade and
+ navigation should be regulated by a system cautiously formed and
+ steadily pursued; and that both our treaties and our laws should
+ correspond with and be made to promote it. It is of much
+ consequence that this correspondence and conformity be carefully
+ maintained; and they who assent to the truth of this position will
+ see and confess that it is well provided for by making concurrence
+ of the Senate necessary both to treaties and to laws.
+It seldom happens in the negotiation of treaties, of whatever
+ nature, but that perfect SECRECY and immediate DESPATCH are
+ sometimes requisite. These are cases where the most useful
+ intelligence may be obtained, if the persons possessing it can be
+ relieved from apprehensions of discovery. Those apprehensions will
+ operate on those persons whether they are actuated by mercenary or
+ friendly motives; and there doubtless are many of both
+ descriptions, who would rely on the secrecy of the President, but
+ who would not confide in that of the Senate, and still less in that
+ of a large popular Assembly. The convention have done well,
+ therefore, in so disposing of the power of making treaties, that
+ although the President must, in forming them, act by the advice and
+ consent of the Senate, yet he will be able to manage the business of
+ intelligence in such a manner as prudence may suggest.
+They who have turned their attention to the affairs of men, must
+ have perceived that there are tides in them; tides very irregular
+ in their duration, strength, and direction, and seldom found to run
+ twice exactly in the same manner or measure. To discern and to
+ profit by these tides in national affairs is the business of those
+ who preside over them; and they who have had much experience on
+ this head inform us, that there frequently are occasions when days,
+ nay, even when hours, are precious. The loss of a battle, the death
+ of a prince, the removal of a minister, or other circumstances
+ intervening to change the present posture and aspect of affairs, may
+ turn the most favorable tide into a course opposite to our wishes.
+ As in the field, so in the cabinet, there are moments to be seized
+ as they pass, and they who preside in either should be left in
+ capacity to improve them. So often and so essentially have we
+ heretofore suffered from the want of secrecy and despatch, that the
+ Constitution would have been inexcusably defective, if no attention
+ had been paid to those objects. Those matters which in negotiations
+ usually require the most secrecy and the most despatch, are those
+ preparatory and auxiliary measures which are not otherwise important
+ in a national view, than as they tend to facilitate the attainment
+ of the objects of the negotiation. For these, the President will
+ find no difficulty to provide; and should any circumstance occur
+ which requires the advice and consent of the Senate, he may at any
+ time convene them. Thus we see that the Constitution provides that
+ our negotiations for treaties shall have every advantage which can
+ be derived from talents, information, integrity, and deliberate
+ investigations, on the one hand, and from secrecy and despatch on
+ the other.
+But to this plan, as to most others that have ever appeared,
+ objections are contrived and urged.
+Some are displeased with it, not on account of any errors or
+ defects in it, but because, as the treaties, when made, are to have
+ the force of laws, they should be made only by men invested with
+ legislative authority. These gentlemen seem not to consider that
+ the judgments of our courts, and the commissions constitutionally
+ given by our governor, are as valid and as binding on all persons
+ whom they concern, as the laws passed by our legislature. All
+ constitutional acts of power, whether in the executive or in the
+ judicial department, have as much legal validity and obligation as
+ if they proceeded from the legislature; and therefore, whatever
+ name be given to the power of making treaties, or however obligatory
+ they may be when made, certain it is, that the people may, with much
+ propriety, commit the power to a distinct body from the legislature,
+ the executive, or the judicial. It surely does not follow, that
+ because they have given the power of making laws to the legislature,
+ that therefore they should likewise give them the power to do every
+ other act of sovereignty by which the citizens are to be bound and
+ affected.
+Others, though content that treaties should be made in the mode
+ proposed, are averse to their being the SUPREME laws of the land.
+ They insist, and profess to believe, that treaties like acts of
+ assembly, should be repealable at pleasure. This idea seems to be
+ new and peculiar to this country, but new errors, as well as new
+ truths, often appear. These gentlemen would do well to reflect that
+ a treaty is only another name for a bargain, and that it would be
+ impossible to find a nation who would make any bargain with us,
+ which should be binding on them ABSOLUTELY, but on us only so long
+ and so far as we may think proper to be bound by it. They who make
+ laws may, without doubt, amend or repeal them; and it will not be
+ disputed that they who make treaties may alter or cancel them; but
+ still let us not forget that treaties are made, not by only one of
+ the contracting parties, but by both; and consequently, that as the
+ consent of both was essential to their formation at first, so must
+ it ever afterwards be to alter or cancel them. The proposed
+ Constitution, therefore, has not in the least extended the
+ obligation of treaties. They are just as binding, and just as far
+ beyond the lawful reach of legislative acts now, as they will be at
+ any future period, or under any form of government.
+However useful jealousy may be in republics, yet when like bile
+ in the natural, it abounds too much in the body politic, the eyes of
+ both become very liable to be deceived by the delusive appearances
+ which that malady casts on surrounding objects. From this cause,
+ probably, proceed the fears and apprehensions of some, that the
+ President and Senate may make treaties without an equal eye to the
+ interests of all the States. Others suspect that two thirds will
+ oppress the remaining third, and ask whether those gentlemen are
+ made sufficiently responsible for their conduct; whether, if they
+ act corruptly, they can be punished; and if they make
+ disadvantageous treaties, how are we to get rid of those treaties?
+As all the States are equally represented in the Senate, and by
+ men the most able and the most willing to promote the interests of
+ their constituents, they will all have an equal degree of influence
+ in that body, especially while they continue to be careful in
+ appointing proper persons, and to insist on their punctual
+ attendance. In proportion as the United States assume a national
+ form and a national character, so will the good of the whole be more
+ and more an object of attention, and the government must be a weak
+ one indeed, if it should forget that the good of the whole can only
+ be promoted by advancing the good of each of the parts or members
+ which compose the whole. It will not be in the power of the
+ President and Senate to make any treaties by which they and their
+ families and estates will not be equally bound and affected with the
+ rest of the community; and, having no private interests distinct
+ from that of the nation, they will be under no temptations to
+ neglect the latter.
+As to corruption, the case is not supposable. He must either
+ have been very unfortunate in his intercourse with the world, or
+ possess a heart very susceptible of such impressions, who can think
+ it probable that the President and two thirds of the Senate will
+ ever be capable of such unworthy conduct. The idea is too gross and
+ too invidious to be entertained. But in such a case, if it should
+ ever happen, the treaty so obtained from us would, like all other
+ fraudulent contracts, be null and void by the law of nations.
+With respect to their responsibility, it is difficult to
+ conceive how it could be increased. Every consideration that can
+ influence the human mind, such as honor, oaths, reputations,
+ conscience, the love of country, and family affections and
+ attachments, afford security for their fidelity. In short, as the
+ Constitution has taken the utmost care that they shall be men of
+ talents and integrity, we have reason to be persuaded that the
+ treaties they make will be as advantageous as, all circumstances
+ considered, could be made; and so far as the fear of punishment and
+ disgrace can operate, that motive to good behavior is amply afforded
+ by the article on the subject of impeachments.
+PUBLIUS.
+
+
+FEDERALIST No. 65
+
+The Powers of the Senate Continued
+From the New York Packet.
+Friday, March 7, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE remaining powers which the plan of the convention allots to
+ the Senate, in a distinct capacity, are comprised in their
+ participation with the executive in the appointment to offices, and
+ in their judicial character as a court for the trial of impeachments.
+ As in the business of appointments the executive will be the
+ principal agent, the provisions relating to it will most properly be
+ discussed in the examination of that department. We will,
+ therefore, conclude this head with a view of the judicial character
+ of the Senate.
+A well-constituted court for the trial of impeachments is an
+ object not more to be desired than difficult to be obtained in a
+ government wholly elective. The subjects of its jurisdiction are
+ those offenses which proceed from the misconduct of public men, or,
+ in other words, from the abuse or violation of some public trust.
+ They are of a nature which may with peculiar propriety be
+ denominated POLITICAL, as they relate chiefly to injuries done
+ immediately to the society itself. The prosecution of them, for
+ this reason, will seldom fail to agitate the passions of the whole
+ community, and to divide it into parties more or less friendly or
+ inimical to the accused. In many cases it will connect itself with
+ the pre-existing factions, and will enlist all their animosities,
+ partialities, influence, and interest on one side or on the other;
+ and in such cases there will always be the greatest danger that the
+ decision will be regulated more by the comparative strength of
+ parties, than by the real demonstrations of innocence or guilt.
+The delicacy and magnitude of a trust which so deeply concerns
+ the political reputation and existence of every man engaged in the
+ administration of public affairs, speak for themselves. The
+ difficulty of placing it rightly, in a government resting entirely
+ on the basis of periodical elections, will as readily be perceived,
+ when it is considered that the most conspicuous characters in it
+ will, from that circumstance, be too often the leaders or the tools
+ of the most cunning or the most numerous faction, and on this
+ account, can hardly be expected to possess the requisite neutrality
+ towards those whose conduct may be the subject of scrutiny.
+The convention, it appears, thought the Senate the most fit
+ depositary of this important trust. Those who can best discern the
+ intrinsic difficulty of the thing, will be least hasty in condemning
+ that opinion, and will be most inclined to allow due weight to the
+ arguments which may be supposed to have produced it.
+What, it may be asked, is the true spirit of the institution
+ itself? Is it not designed as a method of NATIONAL INQUEST into the
+ conduct of public men? If this be the design of it, who can so
+ properly be the inquisitors for the nation as the representatives of
+ the nation themselves? It is not disputed that the power of
+ originating the inquiry, or, in other words, of preferring the
+ impeachment, ought to be lodged in the hands of one branch of the
+ legislative body. Will not the reasons which indicate the propriety
+ of this arrangement strongly plead for an admission of the other
+ branch of that body to a share of the inquiry? The model from which
+ the idea of this institution has been borrowed, pointed out that
+ course to the convention. In Great Britain it is the province of
+ the House of Commons to prefer the impeachment, and of the House of
+ Lords to decide upon it. Several of the State constitutions have
+ followed the example. As well the latter, as the former, seem to
+ have regarded the practice of impeachments as a bridle in the hands
+ of the legislative body upon the executive servants of the
+ government. Is not this the true light in which it ought to be
+ regarded?
+Where else than in the Senate could have been found a tribunal
+ sufficiently dignified, or sufficiently independent? What other
+ body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION,
+ to preserve, unawed and uninfluenced, the necessary impartiality
+ between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE
+ PEOPLE, HIS ACCUSERS?
+Could the Supreme Court have been relied upon as answering this
+ description? It is much to be doubted, whether the members of that
+ tribunal would at all times be endowed with so eminent a portion of
+ fortitude, as would be called for in the execution of so difficult a
+ task; and it is still more to be doubted, whether they would
+ possess the degree of credit and authority, which might, on certain
+ occasions, be indispensable towards reconciling the people to a
+ decision that should happen to clash with an accusation brought by
+ their immediate representatives. A deficiency in the first, would
+ be fatal to the accused; in the last, dangerous to the public
+ tranquillity. The hazard in both these respects, could only be
+ avoided, if at all, by rendering that tribunal more numerous than
+ would consist with a reasonable attention to economy. The necessity
+ of a numerous court for the trial of impeachments, is equally
+ dictated by the nature of the proceeding. This can never be tied
+ down by such strict rules, either in the delineation of the offense
+ by the prosecutors, or in the construction of it by the judges, as
+ in common cases serve to limit the discretion of courts in favor of
+ personal security. There will be no jury to stand between the
+ judges who are to pronounce the sentence of the law, and the party
+ who is to receive or suffer it. The awful discretion which a court
+ of impeachments must necessarily have, to doom to honor or to infamy
+ the most confidential and the most distinguished characters of the
+ community, forbids the commitment of the trust to a small number of
+ persons.
+These considerations seem alone sufficient to authorize a
+ conclusion, that the Supreme Court would have been an improper
+ substitute for the Senate, as a court of impeachments. There
+ remains a further consideration, which will not a little strengthen
+ this conclusion. It is this: The punishment which may be the
+ consequence of conviction upon impeachment, is not to terminate the
+ chastisement of the offender. After having been sentenced to a
+ perpetual ostracism from the esteem and confidence, and honors and
+ emoluments of his country, he will still be liable to prosecution
+ and punishment in the ordinary course of law. Would it be proper
+ that the persons who had disposed of his fame, and his most valuable
+ rights as a citizen in one trial, should, in another trial, for the
+ same offense, be also the disposers of his life and his fortune?
+ Would there not be the greatest reason to apprehend, that error, in
+ the first sentence, would be the parent of error in the second
+ sentence? That the strong bias of one decision would be apt to
+ overrule the influence of any new lights which might be brought to
+ vary the complexion of another decision? Those who know anything of
+ human nature, will not hesitate to answer these questions in the
+ affirmative; and will be at no loss to perceive, that by making the
+ same persons judges in both cases, those who might happen to be the
+ objects of prosecution would, in a great measure, be deprived of the
+ double security intended them by a double trial. The loss of life
+ and estate would often be virtually included in a sentence which, in
+ its terms, imported nothing more than dismission from a present, and
+ disqualification for a future, office. It may be said, that the
+ intervention of a jury, in the second instance, would obviate the
+ danger. But juries are frequently influenced by the opinions of
+ judges. They are sometimes induced to find special verdicts, which
+ refer the main question to the decision of the court. Who would be
+ willing to stake his life and his estate upon the verdict of a jury
+ acting under the auspices of judges who had predetermined his guilt?
+Would it have been an improvement of the plan, to have united
+ the Supreme Court with the Senate, in the formation of the court of
+ impeachments? This union would certainly have been attended with
+ several advantages; but would they not have been overbalanced by
+ the signal disadvantage, already stated, arising from the agency of
+ the same judges in the double prosecution to which the offender
+ would be liable? To a certain extent, the benefits of that union
+ will be obtained from making the chief justice of the Supreme Court
+ the president of the court of impeachments, as is proposed to be
+ done in the plan of the convention; while the inconveniences of an
+ entire incorporation of the former into the latter will be
+ substantially avoided. This was perhaps the prudent mean. I
+ forbear to remark upon the additional pretext for clamor against the
+ judiciary, which so considerable an augmentation of its authority
+ would have afforded.
+Would it have been desirable to have composed the court for the
+ trial of impeachments, of persons wholly distinct from the other
+ departments of the government? There are weighty arguments, as well
+ against, as in favor of, such a plan. To some minds it will not
+ appear a trivial objection, that it could tend to increase the
+ complexity of the political machine, and to add a new spring to the
+ government, the utility of which would at best be questionable. But
+ an objection which will not be thought by any unworthy of attention,
+ is this: a court formed upon such a plan, would either be attended
+ with a heavy expense, or might in practice be subject to a variety
+ of casualties and inconveniences. It must either consist of
+ permanent officers, stationary at the seat of government, and of
+ course entitled to fixed and regular stipends, or of certain
+ officers of the State governments to be called upon whenever an
+ impeachment was actually depending. It will not be easy to imagine
+ any third mode materially different, which could rationally be
+ proposed. As the court, for reasons already given, ought to be
+ numerous, the first scheme will be reprobated by every man who can
+ compare the extent of the public wants with the means of supplying
+ them. The second will be espoused with caution by those who will
+ seriously consider the difficulty of collecting men dispersed over
+ the whole Union; the injury to the innocent, from the
+ procrastinated determination of the charges which might be brought
+ against them; the advantage to the guilty, from the opportunities
+ which delay would afford to intrigue and corruption; and in some
+ cases the detriment to the State, from the prolonged inaction of men
+ whose firm and faithful execution of their duty might have exposed
+ them to the persecution of an intemperate or designing majority in
+ the House of Representatives. Though this latter supposition may
+ seem harsh, and might not be likely often to be verified, yet it
+ ought not to be forgotten that the demon of faction will, at certain
+ seasons, extend his sceptre over all numerous bodies of men.
+But though one or the other of the substitutes which have been
+ examined, or some other that might be devised, should be thought
+ preferable to the plan in this respect, reported by the convention,
+ it will not follow that the Constitution ought for this reason to be
+ rejected. If mankind were to resolve to agree in no institution of
+ government, until every part of it had been adjusted to the most
+ exact standard of perfection, society would soon become a general
+ scene of anarchy, and the world a desert. Where is the standard of
+ perfection to be found? Who will undertake to unite the discordant
+ opinions of a whole community, in the same judgment of it; and to
+ prevail upon one conceited projector to renounce his INFALLIBLE
+ criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR?
+ To answer the purpose of the adversaries of the Constitution, they
+ ought to prove, not merely that particular provisions in it are not
+ the best which might have been imagined, but that the plan upon the
+ whole is bad and pernicious.
+PUBLIUS.
+
+
+FEDERALIST No. 66
+
+Objections to the Power of the Senate To Set as a Court for
+ Impeachments Further Considered
+From the New York Packet.
+Tuesday, March 11, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+A REVIEW of the principal objections that have appeared against
+ the proposed court for the trial of impeachments, will not
+ improbably eradicate the remains of any unfavorable impressions
+ which may still exist in regard to this matter.
+The FIRST of these objections is, that the provision in question
+ confounds legislative and judiciary authorities in the same body, in
+ violation of that important and wellestablished maxim which requires
+ a separation between the different departments of power. The true
+ meaning of this maxim has been discussed and ascertained in another
+ place, and has been shown to be entirely compatible with a partial
+ intermixture of those departments for special purposes, preserving
+ them, in the main, distinct and unconnected. This partial
+ intermixture is even, in some cases, not only proper but necessary
+ to the mutual defense of the several members of the government
+ against each other. An absolute or qualified negative in the
+ executive upon the acts of the legislative body, is admitted, by the
+ ablest adepts in political science, to be an indispensable barrier
+ against the encroachments of the latter upon the former. And it
+ may, perhaps, with no less reason be contended, that the powers
+ relating to impeachments are, as before intimated, an essential
+ check in the hands of that body upon the encroachments of the
+ executive. The division of them between the two branches of the
+ legislature, assigning to one the right of accusing, to the other
+ the right of judging, avoids the inconvenience of making the same
+ persons both accusers and judges; and guards against the danger of
+ persecution, from the prevalency of a factious spirit in either of
+ those branches. As the concurrence of two thirds of the Senate will
+ be requisite to a condemnation, the security to innocence, from this
+ additional circumstance, will be as complete as itself can desire.
+It is curious to observe, with what vehemence this part of the
+ plan is assailed, on the principle here taken notice of, by men who
+ profess to admire, without exception, the constitution of this
+ State; while that constitution makes the Senate, together with the
+ chancellor and judges of the Supreme Court, not only a court of
+ impeachments, but the highest judicatory in the State, in all
+ causes, civil and criminal. The proportion, in point of numbers, of
+ the chancellor and judges to the senators, is so inconsiderable,
+ that the judiciary authority of New York, in the last resort, may,
+ with truth, be said to reside in its Senate. If the plan of the
+ convention be, in this respect, chargeable with a departure from the
+ celebrated maxim which has been so often mentioned, and seems to be
+ so little understood, how much more culpable must be the
+ constitution of New York?1
+A SECOND objection to the Senate, as a court of impeachments,
+ is, that it contributes to an undue accumulation of power in that
+ body, tending to give to the government a countenance too
+ aristocratic. The Senate, it is observed, is to have concurrent
+ authority with the Executive in the formation of treaties and in the
+ appointment to offices: if, say the objectors, to these
+ prerogatives is added that of deciding in all cases of impeachment,
+ it will give a decided predominancy to senatorial influence. To an
+ objection so little precise in itself, it is not easy to find a very
+ precise answer. Where is the measure or criterion to which we can
+ appeal, for determining what will give the Senate too much, too
+ little, or barely the proper degree of influence? Will it not be
+ more safe, as well as more simple, to dismiss such vague and
+ uncertain calculations, to examine each power by itself, and to
+ decide, on general principles, where it may be deposited with most
+ advantage and least inconvenience?
+If we take this course, it will lead to a more intelligible, if
+ not to a more certain result. The disposition of the power of
+ making treaties, which has obtained in the plan of the convention,
+ will, then, if I mistake not, appear to be fully justified by the
+ considerations stated in a former number, and by others which will
+ occur under the next head of our inquiries. The expediency of the
+ junction of the Senate with the Executive, in the power of
+ appointing to offices, will, I trust, be placed in a light not less
+ satisfactory, in the disquisitions under the same head. And I
+ flatter myself the observations in my last paper must have gone no
+ inconsiderable way towards proving that it was not easy, if
+ practicable, to find a more fit receptacle for the power of
+ determining impeachments, than that which has been chosen. If this
+ be truly the case, the hypothetical dread of the too great weight of
+ the Senate ought to be discarded from our reasonings.
+But this hypothesis, such as it is, has already been refuted in
+ the remarks applied to the duration in office prescribed for the
+ senators. It was by them shown, as well on the credit of historical
+ examples, as from the reason of the thing, that the most POPULAR
+ branch of every government, partaking of the republican genius, by
+ being generally the favorite of the people, will be as generally a
+ full match, if not an overmatch, for every other member of the
+ Government.
+But independent of this most active and operative principle, to
+ secure the equilibrium of the national House of Representatives, the
+ plan of the convention has provided in its favor several important
+ counterpoises to the additional authorities to be conferred upon the
+ Senate. The exclusive privilege of originating money bills will
+ belong to the House of Representatives. The same house will possess
+ the sole right of instituting impeachments: is not this a complete
+ counterbalance to that of determining them? The same house will be
+ the umpire in all elections of the President, which do not unite the
+ suffrages of a majority of the whole number of electors; a case
+ which it cannot be doubted will sometimes, if not frequently, happen.
+ The constant possibility of the thing must be a fruitful source of
+ influence to that body. The more it is contemplated, the more
+ important will appear this ultimate though contingent power, of
+ deciding the competitions of the most illustrious citizens of the
+ Union, for the first office in it. It would not perhaps be rash to
+ predict, that as a mean of influence it will be found to outweigh
+ all the peculiar attributes of the Senate.
+A THIRD objection to the Senate as a court of impeachments, is
+ drawn from the agency they are to have in the appointments to office.
+ It is imagined that they would be too indulgent judges of the
+ conduct of men, in whose official creation they had participated.
+ The principle of this objection would condemn a practice, which is
+ to be seen in all the State governments, if not in all the
+ governments with which we are acquainted: I mean that of rendering
+ those who hold offices during pleasure, dependent on the pleasure of
+ those who appoint them. With equal plausibility might it be alleged
+ in this case, that the favoritism of the latter would always be an
+ asylum for the misbehavior of the former. But that practice, in
+ contradiction to this principle, proceeds upon the presumption, that
+ the responsibility of those who appoint, for the fitness and
+ competency of the persons on whom they bestow their choice, and the
+ interest they will have in the respectable and prosperous
+ administration of affairs, will inspire a sufficient disposition to
+ dismiss from a share in it all such who, by their conduct, shall
+ have proved themselves unworthy of the confidence reposed in them.
+ Though facts may not always correspond with this presumption, yet
+ if it be, in the main, just, it must destroy the supposition that
+ the Senate, who will merely sanction the choice of the Executive,
+ should feel a bias, towards the objects of that choice, strong
+ enough to blind them to the evidences of guilt so extraordinary, as
+ to have induced the representatives of the nation to become its
+ accusers.
+If any further arguments were necessary to evince the
+ improbability of such a bias, it might be found in the nature of the
+ agency of the Senate in the business of appointments.
+It will be the office of the President to NOMINATE, and, with
+ the advice and consent of the Senate, to APPOINT. There will, of
+ course, be no exertion of CHOICE on the part of the Senate. They
+ may defeat one choice of the Executive, and oblige him to make
+ another; but they cannot themselves CHOOSE, they can only ratify or
+ reject the choice of the President. They might even entertain a
+ preference to some other person, at the very moment they were
+ assenting to the one proposed, because there might be no positive
+ ground of opposition to him; and they could not be sure, if they
+ withheld their assent, that the subsequent nomination would fall
+ upon their own favorite, or upon any other person in their
+ estimation more meritorious than the one rejected. Thus it could
+ hardly happen, that the majority of the Senate would feel any other
+ complacency towards the object of an appointment than such as the
+ appearances of merit might inspire, and the proofs of the want of it
+ destroy.
+A FOURTH objection to the Senate in the capacity of a court of
+ impeachments, is derived from its union with the Executive in the
+ power of making treaties. This, it has been said, would constitute
+ the senators their own judges, in every case of a corrupt or
+ perfidious execution of that trust. After having combined with the
+ Executive in betraying the interests of the nation in a ruinous
+ treaty, what prospect, it is asked, would there be of their being
+ made to suffer the punishment they would deserve, when they were
+ themselves to decide upon the accusation brought against them for
+ the treachery of which they have been guilty?
+This objection has been circulated with more earnestness and
+ with greater show of reason than any other which has appeared
+ against this part of the plan; and yet I am deceived if it does not
+ rest upon an erroneous foundation.
+The security essentially intended by the Constitution against
+ corruption and treachery in the formation of treaties, is to be
+ sought for in the numbers and characters of those who are to make
+ them. The JOINT AGENCY of the Chief Magistrate of the Union, and of
+ two thirds of the members of a body selected by the collective
+ wisdom of the legislatures of the several States, is designed to be
+ the pledge for the fidelity of the national councils in this
+ particular. The convention might with propriety have meditated the
+ punishment of the Executive, for a deviation from the instructions
+ of the Senate, or a want of integrity in the conduct of the
+ negotiations committed to him; they might also have had in view the
+ punishment of a few leading individuals in the Senate, who should
+ have prostituted their influence in that body as the mercenary
+ instruments of foreign corruption: but they could not, with more or
+ with equal propriety, have contemplated the impeachment and
+ punishment of two thirds of the Senate, consenting to an improper
+ treaty, than of a majority of that or of the other branch of the
+ national legislature, consenting to a pernicious or unconstitutional
+ law, a principle which, I believe, has never been admitted into any
+ government. How, in fact, could a majority in the House of
+ Representatives impeach themselves? Not better, it is evident, than
+ two thirds of the Senate might try themselves. And yet what reason
+ is there, that a majority of the House of Representatives,
+ sacrificing the interests of the society by an unjust and tyrannical
+ act of legislation, should escape with impunity, more than two
+ thirds of the Senate, sacrificing the same interests in an injurious
+ treaty with a foreign power? The truth is, that in all such cases
+ it is essential to the freedom and to the necessary independence of
+ the deliberations of the body, that the members of it should be
+ exempt from punishment for acts done in a collective capacity; and
+ the security to the society must depend on the care which is taken
+ to confide the trust to proper hands, to make it their interest to
+ execute it with fidelity, and to make it as difficult as possible
+ for them to combine in any interest opposite to that of the public
+ good.
+So far as might concern the misbehavior of the Executive in
+ perverting the instructions or contravening the views of the Senate,
+ we need not be apprehensive of the want of a disposition in that
+ body to punish the abuse of their confidence or to vindicate their
+ own authority. We may thus far count upon their pride, if not upon
+ their virtue. And so far even as might concern the corruption of
+ leading members, by whose arts and influence the majority may have
+ been inveigled into measures odious to the community, if the proofs
+ of that corruption should be satisfactory, the usual propensity of
+ human nature will warrant us in concluding that there would be
+ commonly no defect of inclination in the body to divert the public
+ resentment from themselves by a ready sacrifice of the authors of
+ their mismanagement and disgrace.
+PUBLIUS.
+In that of New Jersey, also, the final judiciary authority is in
+ a branch of the legislature. In New Hampshire, Massachusetts,
+ Pennsylvanis, and South Carolina, one branch of the legislature is
+ the court for the trial of impeachments.
+
+
+FEDERALIST No. 67
+
+The Executive Department
+From the New York Packet.
+Tuesday, March 11, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE constitution of the executive department of the proposed
+ government, claims next our attention.
+There is hardly any part of the system which could have been
+ attended with greater difficulty in the arrangement of it than this;
+ and there is, perhaps, none which has been inveighed against with
+ less candor or criticised with less judgment.
+Here the writers against the Constitution seem to have taken
+ pains to signalize their talent of misrepresentation. Calculating
+ upon the aversion of the people to monarchy, they have endeavored to
+ enlist all their jealousies and apprehensions in opposition to the
+ intended President of the United States; not merely as the embryo,
+ but as the full-grown progeny, of that detested parent. To
+ establish the pretended affinity, they have not scrupled to draw
+ resources even from the regions of fiction. The authorities of a
+ magistrate, in few instances greater, in some instances less, than
+ those of a governor of New York, have been magnified into more than
+ royal prerogatives. He has been decorated with attributes superior
+ in dignity and splendor to those of a king of Great Britain. He has
+ been shown to us with the diadem sparkling on his brow and the
+ imperial purple flowing in his train. He has been seated on a
+ throne surrounded with minions and mistresses, giving audience to
+ the envoys of foreign potentates, in all the supercilious pomp of
+ majesty. The images of Asiatic despotism and voluptuousness have
+ scarcely been wanting to crown the exaggerated scene. We have been
+ taught to tremble at the terrific visages of murdering janizaries,
+ and to blush at the unveiled mysteries of a future seraglio.
+Attempts so extravagant as these to disfigure or, it might
+ rather be said, to metamorphose the object, render it necessary to
+ take an accurate view of its real nature and form: in order as well
+ to ascertain its true aspect and genuine appearance, as to unmask
+ the disingenuity and expose the fallacy of the counterfeit
+ resemblances which have been so insidiously, as well as
+ industriously, propagated.
+In the execution of this task, there is no man who would not
+ find it an arduous effort either to behold with moderation, or to
+ treat with seriousness, the devices, not less weak than wicked,
+ which have been contrived to pervert the public opinion in relation
+ to the subject. They so far exceed the usual though unjustifiable
+ licenses of party artifice, that even in a disposition the most
+ candid and tolerant, they must force the sentiments which favor an
+ indulgent construction of the conduct of political adversaries to
+ give place to a voluntary and unreserved indignation. It is
+ impossible not to bestow the imputation of deliberate imposture and
+ deception upon the gross pretense of a similitude between a king of
+ Great Britain and a magistrate of the character marked out for that
+ of the President of the United States. It is still more impossible
+ to withhold that imputation from the rash and barefaced expedients
+ which have been employed to give success to the attempted imposition.
+In one instance, which I cite as a sample of the general spirit,
+ the temerity has proceeded so far as to ascribe to the President of
+ the United States a power which by the instrument reported is
+ EXPRESSLY allotted to the Executives of the individual States. I
+ mean the power of filling casual vacancies in the Senate.
+This bold experiment upon the discernment of his countrymen has
+ been hazarded by a writer who (whatever may be his real merit) has
+ had no inconsiderable share in the applauses of his party1; and
+ who, upon this false and unfounded suggestion, has built a series of
+ observations equally false and unfounded. Let him now be confronted
+ with the evidence of the fact, and let him, if he be able, justify
+ or extenuate the shameful outrage he has offered to the dictates of
+ truth and to the rules of fair dealing.
+The second clause of the second section of the second article
+ empowers the President of the United States ``to nominate, and by
+ and with the advice and consent of the Senate, to appoint
+ ambassadors, other public ministers and consuls, judges of the
+ Supreme Court, and all other OFFICERS of United States whose
+ appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and
+ WHICH SHALL BE ESTABLISHED BY LAW.'' Immediately after this clause
+ follows another in these words: ``The President shall have power to
+ fill up ?? VACANCIES that may happen DURING THE RECESS OF THE
+ SENATE, by granting commissions which shall EXPIRE AT THE END OF
+ THEIR NEXT SESSION.'' It is from this last provision that the
+ pretended power of the President to fill vacancies in the Senate has
+ been deduced. A slight attention to the connection of the clauses,
+ and to the obvious meaning of the terms, will satisfy us that the
+ deduction is not even colorable.
+The first of these two clauses, it is clear, only provides a
+ mode for appointing such officers, ``whose appointments are NOT
+ OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE
+ ESTABLISHED BY LAW''; of course it cannot extend to the
+ appointments of senators, whose appointments are OTHERWISE PROVIDED
+ FOR in the Constitution2, and who are ESTABLISHED BY THE
+ CONSTITUTION, and will not require a future establishment by law.
+ This position will hardly be contested.
+The last of these two clauses, it is equally clear, cannot be
+ understood to comprehend the power of filling vacancies in the
+ Senate, for the following reasons: First. The relation in
+ which that clause stands to the other, which declares the general
+ mode of appointing officers of the United States, denotes it to be
+ nothing more than a supplement to the other, for the purpose of
+ establishing an auxiliary method of appointment, in cases to which
+ the general method was inadequate. The ordinary power of
+ appointment is confined to the President and Senate JOINTLY, and can
+ therefore only be exercised during the session of the Senate; but
+ as it would have been improper to oblige this body to be continually
+ in session for the appointment of officers and as vacancies might
+ happen IN THEIR RECESS, which it might be necessary for the public
+ service to fill without delay, the succeeding clause is evidently
+ intended to authorize the President, SINGLY, to make temporary
+ appointments ``during the recess of the Senate, by granting
+ commissions which shall expire at the end of their next session.''
+ Secondly. If this clause is to be considered as supplementary
+ to the one which precedes, the VACANCIES of which it speaks must be
+ construed to relate to the ``officers'' described in the preceding
+ one; and this, we have seen, excludes from its description the
+ members of the Senate. Thirdly. The time within which the
+ power is to operate, ``during the recess of the Senate,'' and the
+ duration of the appointments, ``to the end of the next session'' of
+ that body, conspire to elucidate the sense of the provision, which,
+ if it had been intended to comprehend senators, would naturally have
+ referred the temporary power of filling vacancies to the recess of
+ the State legislatures, who are to make the permanent appointments,
+ and not to the recess of the national Senate, who are to have no
+ concern in those appointments; and would have extended the duration
+ in office of the temporary senators to the next session of the
+ legislature of the State, in whose representation the vacancies had
+ happened, instead of making it to expire at the end of the ensuing
+ session of the national Senate. The circumstances of the body
+ authorized to make the permanent appointments would, of course, have
+ governed the modification of a power which related to the temporary
+ appointments; and as the national Senate is the body, whose
+ situation is alone contemplated in the clause upon which the
+ suggestion under examination has been founded, the vacancies to
+ which it alludes can only be deemed to respect those officers in
+ whose appointment that body has a concurrent agency with the
+ President. But lastly, the first and second clauses of the
+ third section of the first article, not only obviate all possibility
+ of doubt, but destroy the pretext of misconception. The former
+ provides, that ``the Senate of the United States shall be composed
+ of two Senators from each State, chosen BY THE LEGISLATURE THEREOF
+ for six years''; and the latter directs, that, ``if vacancies in
+ that body should happen by resignation or otherwise, DURING THE
+ RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may
+ make temporary appointments until the NEXT MEETING OF THE
+ LEGISLATURE, which shall then fill such vacancies.'' Here is an
+ express power given, in clear and unambiguous terms, to the State
+ Executives, to fill casual vacancies in the Senate, by temporary
+ appointments; which not only invalidates the supposition, that the
+ clause before considered could have been intended to confer that
+ power upon the President of the United States, but proves that this
+ supposition, destitute as it is even of the merit of plausibility,
+ must have originated in an intention to deceive the people, too
+ palpable to be obscured by sophistry, too atrocious to be palliated
+ by hypocrisy.
+I have taken the pains to select this instance of
+ misrepresentation, and to place it in a clear and strong light, as
+ an unequivocal proof of the unwarrantable arts which are practiced
+ to prevent a fair and impartial judgment of the real merits of the
+ Constitution submitted to the consideration of the people. Nor have
+ I scrupled, in so flagrant a case, to allow myself a severity of
+ animadversion little congenial with the general spirit of these
+ papers. I hesitate not to submit it to the decision of any candid
+ and honest adversary of the proposed government, whether language
+ can furnish epithets of too much asperity, for so shameless and so
+ prostitute an attempt to impose on the citizens of America.
+PUBLIUS.
+1 See CATO, No. V.
+2 Article I, section 3, clause I.
+
+
+FEDERALIST No. 68
+
+The Mode of Electing the President
+From the New York Packet.
+Friday, March 14, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE mode of appointment of the Chief Magistrate of the United
+ States is almost the only part of the system, of any consequence,
+ which has escaped without severe censure, or which has received the
+ slightest mark of approbation from its opponents. The most
+ plausible of these, who has appeared in print, has even deigned to
+ admit that the election of the President is pretty well
+ guarded.1 I venture somewhat further, and hesitate not to
+ affirm, that if the manner of it be not perfect, it is at least
+ excellent. It unites in an eminent degree all the advantages, the
+ union of which was to be wished for.
+It was desirable that the sense of the people should operate in
+ the choice of the person to whom so important a trust was to be
+ confided. This end will be answered by committing the right of
+ making it, not to any preestablished body, but to men chosen by the
+ people for the special purpose, and at the particular conjuncture.
+It was equally desirable, that the immediate election should be
+ made by men most capable of analyzing the qualities adapted to the
+ station, and acting under circumstances favorable to deliberation,
+ and to a judicious combination of all the reasons and inducements
+ which were proper to govern their choice. A small number of
+ persons, selected by their fellow-citizens from the general mass,
+ will be most likely to possess the information and discernment
+ requisite to such complicated investigations.
+It was also peculiarly desirable to afford as little opportunity
+ as possible to tumult and disorder. This evil was not least to be
+ dreaded in the election of a magistrate, who was to have so
+ important an agency in the administration of the government as the
+ President of the United States. But the precautions which have been
+ so happily concerted in the system under consideration, promise an
+ effectual security against this mischief. The choice of SEVERAL, to
+ form an intermediate body of electors, will be much less apt to
+ convulse the community with any extraordinary or violent movements,
+ than the choice of ONE who was himself to be the final object of the
+ public wishes. And as the electors, chosen in each State, are to
+ assemble and vote in the State in which they are chosen, this
+ detached and divided situation will expose them much less to heats
+ and ferments, which might be communicated from them to the people,
+ than if they were all to be convened at one time, in one place.
+Nothing was more to be desired than that every practicable
+ obstacle should be opposed to cabal, intrigue, and corruption.
+ These most deadly adversaries of republican government might
+ naturally have been expected to make their approaches from more than
+ one quarter, but chiefly from the desire in foreign powers to gain
+ an improper ascendant in our councils. How could they better
+ gratify this, than by raising a creature of their own to the chief
+ magistracy of the Union? But the convention have guarded against
+ all danger of this sort, with the most provident and judicious
+ attention. They have not made the appointment of the President to
+ depend on any preexisting bodies of men, who might be tampered with
+ beforehand to prostitute their votes; but they have referred it in
+ the first instance to an immediate act of the people of America, to
+ be exerted in the choice of persons for the temporary and sole
+ purpose of making the appointment. And they have excluded from
+ eligibility to this trust, all those who from situation might be
+ suspected of too great devotion to the President in office. No
+ senator, representative, or other person holding a place of trust or
+ profit under the United States, can be of the numbers of the
+ electors. Thus without corrupting the body of the people, the
+ immediate agents in the election will at least enter upon the task
+ free from any sinister bias. Their transient existence, and their
+ detached situation, already taken notice of, afford a satisfactory
+ prospect of their continuing so, to the conclusion of it. The
+ business of corruption, when it is to embrace so considerable a
+ number of men, requires time as well as means. Nor would it be
+ found easy suddenly to embark them, dispersed as they would be over
+ thirteen States, in any combinations founded upon motives, which
+ though they could not properly be denominated corrupt, might yet be
+ of a nature to mislead them from their duty.
+Another and no less important desideratum was, that the
+ Executive should be independent for his continuance in office on all
+ but the people themselves. He might otherwise be tempted to
+ sacrifice his duty to his complaisance for those whose favor was
+ necessary to the duration of his official consequence. This
+ advantage will also be secured, by making his re-election to depend
+ on a special body of representatives, deputed by the society for the
+ single purpose of making the important choice.
+All these advantages will happily combine in the plan devised by
+ the convention; which is, that the people of each State shall
+ choose a number of persons as electors, equal to the number of
+ senators and representatives of such State in the national
+ government, who shall assemble within the State, and vote for some
+ fit person as President. Their votes, thus given, are to be
+ transmitted to the seat of the national government, and the person
+ who may happen to have a majority of the whole number of votes will
+ be the President. But as a majority of the votes might not always
+ happen to centre in one man, and as it might be unsafe to permit
+ less than a majority to be conclusive, it is provided that, in such
+ a contingency, the House of Representatives shall select out of the
+ candidates who shall have the five highest number of votes, the man
+ who in their opinion may be best qualified for the office.
+The process of election affords a moral certainty, that the
+ office of President will never fall to the lot of any man who is not
+ in an eminent degree endowed with the requisite qualifications.
+ Talents for low intrigue, and the little arts of popularity, may
+ alone suffice to elevate a man to the first honors in a single
+ State; but it will require other talents, and a different kind of
+ merit, to establish him in the esteem and confidence of the whole
+ Union, or of so considerable a portion of it as would be necessary
+ to make him a successful candidate for the distinguished office of
+ President of the United States. It will not be too strong to say,
+ that there will be a constant probability of seeing the station
+ filled by characters pre-eminent for ability and virtue. And this
+ will be thought no inconsiderable recommendation of the
+ Constitution, by those who are able to estimate the share which the
+ executive in every government must necessarily have in its good or
+ ill administration. Though we cannot acquiesce in the political
+ heresy of the poet who says: ``For forms of government let fools
+ contest That which is best administered is best,''
+ yet we may safely pronounce, that the true test of a good
+ government is its aptitude and tendency to produce a good
+ administration.
+The Vice-President is to be chosen in the same manner with the
+ President; with this difference, that the Senate is to do, in
+ respect to the former, what is to be done by the House of
+ Representatives, in respect to the latter.
+The appointment of an extraordinary person, as Vice-President,
+ has been objected to as superfluous, if not mischievous. It has
+ been alleged, that it would have been preferable to have authorized
+ the Senate to elect out of their own body an officer answering that
+ description. But two considerations seem to justify the ideas of
+ the convention in this respect. One is, that to secure at all times
+ the possibility of a definite resolution of the body, it is
+ necessary that the President should have only a casting vote. And
+ to take the senator of any State from his seat as senator, to place
+ him in that of President of the Senate, would be to exchange, in
+ regard to the State from which he came, a constant for a contingent
+ vote. The other consideration is, that as the Vice-President may
+ occasionally become a substitute for the President, in the supreme
+ executive magistracy, all the reasons which recommend the mode of
+ election prescribed for the one, apply with great if not with equal
+ force to the manner of appointing the other. It is remarkable that
+ in this, as in most other instances, the objection which is made
+ would lie against the constitution of this State. We have a
+ Lieutenant-Governor, chosen by the people at large, who presides in
+ the Senate, and is the constitutional substitute for the Governor,
+ in casualties similar to those which would authorize the
+ Vice-President to exercise the authorities and discharge the duties
+ of the President.
+PUBLIUS.
+1 Vide FEDERAL FARMER.
+
+
+FEDERALIST No. 69
+
+The Real Character of the Executive
+From the New York Packet.
+Friday, March 14, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+I PROCEED now to trace the real characters of the proposed
+ Executive, as they are marked out in the plan of the convention.
+ This will serve to place in a strong light the unfairness of the
+ representations which have been made in regard to it.
+The first thing which strikes our attention is, that the
+ executive authority, with few exceptions, is to be vested in a
+ single magistrate. This will scarcely, however, be considered as a
+ point upon which any comparison can be grounded; for if, in this
+ particular, there be a resemblance to the king of Great Britain,
+ there is not less a resemblance to the Grand Seignior, to the khan
+ of Tartary, to the Man of the Seven Mountains, or to the governor of
+ New York.
+That magistrate is to be elected for FOUR years; and is to be
+ re-eligible as often as the people of the United States shall think
+ him worthy of their confidence. In these circumstances there is a
+ total dissimilitude between HIM and a king of Great Britain, who is
+ an HEREDITARY monarch, possessing the crown as a patrimony
+ descendible to his heirs forever; but there is a close analogy
+ between HIM and a governor of New York, who is elected for THREE
+ years, and is re-eligible without limitation or intermission. If we
+ consider how much less time would be requisite for establishing a
+ dangerous influence in a single State, than for establishing a like
+ influence throughout the United States, we must conclude that a
+ duration of FOUR years for the Chief Magistrate of the Union is a
+ degree of permanency far less to be dreaded in that office, than a
+ duration of THREE years for a corresponding office in a single State.
+The President of the United States would be liable to be
+ impeached, tried, and, upon conviction of treason, bribery, or other
+ high crimes or misdemeanors, removed from office; and would
+ afterwards be liable to prosecution and punishment in the ordinary
+ course of law. The person of the king of Great Britain is sacred
+ and inviolable; there is no constitutional tribunal to which he is
+ amenable; no punishment to which he can be subjected without
+ involving the crisis of a national revolution. In this delicate and
+ important circumstance of personal responsibility, the President of
+ Confederated America would stand upon no better ground than a
+ governor of New York, and upon worse ground than the governors of
+ Maryland and Delaware.
+The President of the United States is to have power to return a
+ bill, which shall have passed the two branches of the legislature,
+ for reconsideration; and the bill so returned is to become a law,
+ if, upon that reconsideration, it be approved by two thirds of both
+ houses. The king of Great Britain, on his part, has an absolute
+ negative upon the acts of the two houses of Parliament. The disuse
+ of that power for a considerable time past does not affect the
+ reality of its existence; and is to be ascribed wholly to the
+ crown's having found the means of substituting influence to
+ authority, or the art of gaining a majority in one or the other of
+ the two houses, to the necessity of exerting a prerogative which
+ could seldom be exerted without hazarding some degree of national
+ agitation. The qualified negative of the President differs widely
+ from this absolute negative of the British sovereign; and tallies
+ exactly with the revisionary authority of the council of revision of
+ this State, of which the governor is a constituent part. In this
+ respect the power of the President would exceed that of the governor
+ of New York, because the former would possess, singly, what the
+ latter shares with the chancellor and judges; but it would be
+ precisely the same with that of the governor of Massachusetts, whose
+ constitution, as to this article, seems to have been the original
+ from which the convention have copied.
+The President is to be the ``commander-in-chief of the army and
+ navy of the United States, and of the militia of the several States,
+ when called into the actual service of the United States. He is to
+ have power to grant reprieves and pardons for offenses against the
+ United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the
+ consideration of Congress such measures as he shall judge necessary
+ and expedient; to convene, on extraordinary occasions, both houses
+ of the legislature, or either of them, and, in case of disagreement
+ between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn
+ them to such time as he shall think proper; to take care that the
+ laws be faithfully executed; and to commission all officers of the
+ United States.'' In most of these particulars, the power of the
+ President will resemble equally that of the king of Great Britain
+ and of the governor of New York. The most material points of
+ difference are these: First. The President will have only the
+ occasional command of such part of the militia of the nation as by
+ legislative provision may be called into the actual service of the
+ Union. The king of Great Britain and the governor of New York have
+ at all times the entire command of all the militia within their
+ several jurisdictions. In this article, therefore, the power of the
+ President would be inferior to that of either the monarch or the
+ governor. Secondly. The President is to be commander-in-chief
+ of the army and navy of the United States. In this respect his
+ authority would be nominally the same with that of the king of Great
+ Britain, but in substance much inferior to it. It would amount to
+ nothing more than the supreme command and direction of the military
+ and naval forces, as first General and admiral of the Confederacy;
+ while that of the British king extends to the DECLARING of war and
+ to the RAISING and REGULATING of fleets and armies, all which, by
+ the Constitution under consideration, would appertain to the
+ legislature.1 The governor of New York, on the other hand, is
+ by the constitution of the State vested only with the command of its
+ militia and navy. But the constitutions of several of the States
+ expressly declare their governors to be commanders-in-chief, as well
+ of the army as navy; and it may well be a question, whether those
+ of New Hampshire and Massachusetts, in particular, do not, in this
+ instance, confer larger powers upon their respective governors, than
+ could be claimed by a President of the United States. Thirdly.
+ The power of the President, in respect to pardons, would extend to
+ all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York
+ may pardon in all cases, even in those of impeachment, except for
+ treason and murder. Is not the power of the governor, in this
+ article, on a calculation of political consequences, greater than
+ that of the President? All conspiracies and plots against the
+ government, which have not been matured into actual treason, may be
+ screened from punishment of every kind, by the interposition of the
+ prerogative of pardoning. If a governor of New York, therefore,
+ should be at the head of any such conspiracy, until the design had
+ been ripened into actual hostility he could insure his accomplices
+ and adherents an entire impunity. A President of the Union, on the
+ other hand, though he may even pardon treason, when prosecuted in
+ the ordinary course of law, could shelter no offender, in any
+ degree, from the effects of impeachment and conviction. Would not
+ the prospect of a total indemnity for all the preliminary steps be a
+ greater temptation to undertake and persevere in an enterprise
+ against the public liberty, than the mere prospect of an exemption
+ from death and confiscation, if the final execution of the design,
+ upon an actual appeal to arms, should miscarry? Would this last
+ expectation have any influence at all, when the probability was
+ computed, that the person who was to afford that exemption might
+ himself be involved in the consequences of the measure, and might be
+ incapacitated by his agency in it from affording the desired
+ impunity? The better to judge of this matter, it will be necessary
+ to recollect, that, by the proposed Constitution, the offense of
+ treason is limited ``to levying war upon the United States, and
+ adhering to their enemies, giving them aid and comfort''; and that
+ by the laws of New York it is confined within similar bounds.
+ Fourthly. The President can only adjourn the national legislature
+ in the single case of disagreement about the time of adjournment.
+ The British monarch may prorogue or even dissolve the Parliament.
+ The governor of New York may also prorogue the legislature of this
+ State for a limited time; a power which, in certain situations, may
+ be employed to very important purposes.
+The President is to have power, with the advice and consent of
+ the Senate, to make treaties, provided two thirds of the senators
+ present concur. The king of Great Britain is the sole and absolute
+ representative of the nation in all foreign transactions. He can of
+ his own accord make treaties of peace, commerce, alliance, and of
+ every other description. It has been insinuated, that his authority
+ in this respect is not conclusive, and that his conventions with
+ foreign powers are subject to the revision, and stand in need of the
+ ratification, of Parliament. But I believe this doctrine was never
+ heard of, until it was broached upon the present occasion. Every
+ jurist2 of that kingdom, and every other man acquainted with its
+ Constitution, knows, as an established fact, that the prerogative of
+ making treaties exists in the crown in its utmost plentitude; and
+ that the compacts entered into by the royal authority have the most
+ complete legal validity and perfection, independent of any other
+ sanction. The Parliament, it is true, is sometimes seen employing
+ itself in altering the existing laws to conform them to the
+ stipulations in a new treaty; and this may have possibly given
+ birth to the imagination, that its co-operation was necessary to the
+ obligatory efficacy of the treaty. But this parliamentary
+ interposition proceeds from a different cause: from the necessity
+ of adjusting a most artificial and intricate system of revenue and
+ commercial laws, to the changes made in them by the operation of the
+ treaty; and of adapting new provisions and precautions to the new
+ state of things, to keep the machine from running into disorder. In
+ this respect, therefore, there is no comparison between the intended
+ power of the President and the actual power of the British sovereign.
+ The one can perform alone what the other can do only with the
+ concurrence of a branch of the legislature. It must be admitted,
+ that, in this instance, the power of the federal Executive would
+ exceed that of any State Executive. But this arises naturally from
+ the sovereign power which relates to treaties. If the Confederacy
+ were to be dissolved, it would become a question, whether the
+ Executives of the several States were not solely invested with that
+ delicate and important prerogative.
+The President is also to be authorized to receive ambassadors
+ and other public ministers. This, though it has been a rich theme
+ of declamation, is more a matter of dignity than of authority. It
+ is a circumstance which will be without consequence in the
+ administration of the government; and it was far more convenient
+ that it should be arranged in this manner, than that there should be
+ a necessity of convening the legislature, or one of its branches,
+ upon every arrival of a foreign minister, though it were merely to
+ take the place of a departed predecessor.
+The President is to nominate, and, WITH THE ADVICE AND CONSENT
+ OF THE SENATE, to appoint ambassadors and other public ministers,
+ judges of the Supreme Court, and in general all officers of the
+ United States established by law, and whose appointments are not
+ otherwise provided for by the Constitution. The king of Great
+ Britain is emphatically and truly styled the fountain of honor. He
+ not only appoints to all offices, but can create offices. He can
+ confer titles of nobility at pleasure; and has the disposal of an
+ immense number of church preferments. There is evidently a great
+ inferiority in the power of the President, in this particular, to
+ that of the British king; nor is it equal to that of the governor
+ of New York, if we are to interpret the meaning of the constitution
+ of the State by the practice which has obtained under it. The power
+ of appointment is with us lodged in a council, composed of the
+ governor and four members of the Senate, chosen by the Assembly.
+ The governor CLAIMS, and has frequently EXERCISED, the right of
+ nomination, and is ENTITLED to a casting vote in the appointment.
+ If he really has the right of nominating, his authority is in this
+ respect equal to that of the President, and exceeds it in the
+ article of the casting vote. In the national government, if the
+ Senate should be divided, no appointment could be made; in the
+ government of New York, if the council should be divided, the
+ governor can turn the scale, and confirm his own nomination.3
+ If we compare the publicity which must necessarily attend the mode
+ of appointment by the President and an entire branch of the national
+ legislature, with the privacy in the mode of appointment by the
+ governor of New York, closeted in a secret apartment with at most
+ four, and frequently with only two persons; and if we at the same
+ time consider how much more easy it must be to influence the small
+ number of which a council of appointment consists, than the
+ considerable number of which the national Senate would consist, we
+ cannot hesitate to pronounce that the power of the chief magistrate
+ of this State, in the disposition of offices, must, in practice, be
+ greatly superior to that of the Chief Magistrate of the Union.
+Hence it appears that, except as to the concurrent authority of
+ the President in the article of treaties, it would be difficult to
+ determine whether that magistrate would, in the aggregate, possess
+ more or less power than the Governor of New York. And it appears
+ yet more unequivocally, that there is no pretense for the parallel
+ which has been attempted between him and the king of Great Britain.
+ But to render the contrast in this respect still more striking, it
+ may be of use to throw the principal circumstances of dissimilitude
+ into a closer group.
+The President of the United States would be an officer elected
+ by the people for FOUR years; the king of Great Britain is a
+ perpetual and HEREDITARY prince. The one would be amenable to
+ personal punishment and disgrace; the person of the other is sacred
+ and inviolable. The one would have a QUALIFIED negative upon the
+ acts of the legislative body; the other has an ABSOLUTE negative.
+ The one would have a right to command the military and naval forces
+ of the nation; the other, in addition to this right, possesses that
+ of DECLARING war, and of RAISING and REGULATING fleets and armies by
+ his own authority. The one would have a concurrent power with a
+ branch of the legislature in the formation of treaties; the other
+ is the SOLE POSSESSOR of the power of making treaties. The one
+ would have a like concurrent authority in appointing to offices;
+ the other is the sole author of all appointments. The one can
+ confer no privileges whatever; the other can make denizens of
+ aliens, noblemen of commoners; can erect corporations with all the
+ rights incident to corporate bodies. The one can prescribe no rules
+ concerning the commerce or currency of the nation; the other is in
+ several respects the arbiter of commerce, and in this capacity can
+ establish markets and fairs, can regulate weights and measures, can
+ lay embargoes for a limited time, can coin money, can authorize or
+ prohibit the circulation of foreign coin. The one has no particle
+ of spiritual jurisdiction; the other is the supreme head and
+ governor of the national church! What answer shall we give to those
+ who would persuade us that things so unlike resemble each other?
+ The same that ought to be given to those who tell us that a
+ government, the whole power of which would be in the hands of the
+ elective and periodical servants of the people, is an aristocracy, a
+ monarchy, and a despotism.
+PUBLIUS.
+1 A writer in a Pennsylvania paper, under the signature of
+ TAMONY, has asserted that the king of Great Britain owes his
+ prerogative as commander-in-chief to an annual mutiny bill. The
+ truth is, on the contrary, that his prerogative, in this respect, is
+ immemorial, and was only disputed, ``contrary to all reason and
+ precedent,'' as Blackstone vol. i., page 262, expresses it, by the
+ Long Parliament of Charles I. but by the statute the 13th of Charles
+ II., chap. 6, it was declared to be in the king alone, for that the
+ sole supreme government and command of the militia within his
+ Majesty's realms and dominions, and of all forces by sea and land,
+ and of all forts and places of strength, EVER WAS AND IS the
+ undoubted right of his Majesty and his royal predecessors, kings and
+ queens of England, and that both or either house of Parliament
+ cannot nor ought to pretend to the same.
+2 Vide Blackstone's ``Commentaries,'' vol i., p. 257.
+3 Candor, however, demands an acknowledgment that I do not think
+ the claim of the governor to a right of nomination well founded.
+ Yet it is always justifiable to reason from the practice of a
+ government, till its propriety has been constitutionally questioned.
+ And independent of this claim, when we take into view the other
+ considerations, and pursue them through all their consequences, we
+ shall be inclined to draw much the same conclusion.
+
+*There are two slightly different versions of No. 70 included here.
+
+FEDERALIST No. 70
+
+The Executive Department Further Considered
+From the New York Packet.
+Tuesday, March 18, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THERE is an idea, which is not without its advocates, that a
+ vigorous Executive is inconsistent with the genius of republican
+ government. The enlightened well-wishers to this species of
+ government must at least hope that the supposition is destitute of
+ foundation; since they can never admit its truth, without at the
+ same time admitting the condemnation of their own principles.
+ Energy in the Executive is a leading character in the definition of
+ good government. It is essential to the protection of the community
+ against foreign attacks; it is not less essential to the steady
+ administration of the laws; to the protection of property against
+ those irregular and high-handed combinations which sometimes
+ interrupt the ordinary course of justice; to the security of
+ liberty against the enterprises and assaults of ambition, of
+ faction, and of anarchy. Every man the least conversant in Roman
+ story, knows how often that republic was obliged to take refuge in
+ the absolute power of a single man, under the formidable title of
+ Dictator, as well against the intrigues of ambitious individuals who
+ aspired to the tyranny, and the seditions of whole classes of the
+ community whose conduct threatened the existence of all government,
+ as against the invasions of external enemies who menaced the
+ conquest and destruction of Rome.
+There can be no need, however, to multiply arguments or examples
+ on this head. A feeble Executive implies a feeble execution of the
+ government. A feeble execution is but another phrase for a bad
+ execution; and a government ill executed, whatever it may be in
+ theory, must be, in practice, a bad government.
+Taking it for granted, therefore, that all men of sense will
+ agree in the necessity of an energetic Executive, it will only
+ remain to inquire, what are the ingredients which constitute this
+ energy? How far can they be combined with those other ingredients
+ which constitute safety in the republican sense? And how far does
+ this combination characterize the plan which has been reported by
+ the convention?
+The ingredients which constitute energy in the Executive are,
+ first, unity; secondly, duration; thirdly, an adequate provision
+ for its support; fourthly, competent powers.
+The ingredients which constitute safety in the repub lican sense
+ are, first, a due dependence on the people, secondly, a due
+ responsibility.
+Those politicians and statesmen who have been the most
+ celebrated for the soundness of their principles and for the justice
+ of their views, have declared in favor of a single Executive and a
+ numerous legislature. They have with great propriety, considered
+ energy as the most necessary qualification of the former, and have
+ regarded this as most applicable to power in a single hand, while
+ they have, with equal propriety, considered the latter as best
+ adapted to deliberation and wisdom, and best calculated to
+ conciliate the confidence of the people and to secure their
+ privileges and interests.
+That unity is conducive to energy will not be disputed.
+ Decision, activity, secrecy, and despatch will generally
+ characterize the proceedings of one man in a much more eminent
+ degree than the proceedings of any greater number; and in
+ proportion as the number is increased, these qualities will be
+ diminished.
+This unity may be destroyed in two ways: either by vesting the
+ power in two or more magistrates of equal dignity and authority; or
+ by vesting it ostensibly in one man, subject, in whole or in part,
+ to the control and co-operation of others, in the capacity of
+ counsellors to him. Of the first, the two Consuls of Rome may serve
+ as an example; of the last, we shall find examples in the
+ constitutions of several of the States. New York and New Jersey, if
+ I recollect right, are the only States which have intrusted the
+ executive authority wholly to single men.1 Both these methods
+ of destroying the unity of the Executive have their partisans; but
+ the votaries of an executive council are the most numerous. They
+ are both liable, if not to equal, to similar objections, and may in
+ most lights be examined in conjunction.
+The experience of other nations will afford little instruction
+ on this head. As far, however, as it teaches any thing, it teaches
+ us not to be enamoured of plurality in the Executive. We have seen
+ that the Achaeans, on an experiment of two Praetors, were induced to
+ abolish one. The Roman history records many instances of mischiefs
+ to the republic from the dissensions between the Consuls, and
+ between the military Tribunes, who were at times substituted for the
+ Consuls. But it gives us no specimens of any peculiar advantages
+ derived to the state from the circumstance of the plurality of those
+ magistrates. That the dissensions between them were not more
+ frequent or more fatal, is a matter of astonishment, until we advert
+ to the singular position in which the republic was almost
+ continually placed, and to the prudent policy pointed out by the
+ circumstances of the state, and pursued by the Consuls, of making a
+ division of the government between them. The patricians engaged in
+ a perpetual struggle with the plebeians for the preservation of
+ their ancient authorities and dignities; the Consuls, who were
+ generally chosen out of the former body, were commonly united by the
+ personal interest they had in the defense of the privileges of their
+ order. In addition to this motive of union, after the arms of the
+ republic had considerably expanded the bounds of its empire, it
+ became an established custom with the Consuls to divide the
+ administration between themselves by lot one of them remaining at
+ Rome to govern the city and its environs, the other taking the
+ command in the more distant provinces. This expedient must, no
+ doubt, have had great influence in preventing those collisions and
+ rivalships which might otherwise have embroiled the peace of the
+ republic.
+But quitting the dim light of historical research, attaching
+ ourselves purely to the dictates of reason and good sense, we shall
+ discover much greater cause to reject than to approve the idea of
+ plurality in the Executive, under any modification whatever.
+Wherever two or more persons are engaged in any common
+ enterprise or pursuit, there is always danger of difference of
+ opinion. If it be a public trust or office, in which they are
+ clothed with equal dignity and authority, there is peculiar danger
+ of personal emulation and even animosity. From either, and
+ especially from all these causes, the most bitter dissensions are
+ apt to spring. Whenever these happen, they lessen the
+ respectability, weaken the authority, and distract the plans and
+ operation of those whom they divide. If they should unfortunately
+ assail the supreme executive magistracy of a country, consisting of
+ a plurality of persons, they might impede or frustrate the most
+ important measures of the government, in the most critical
+ emergencies of the state. And what is still worse, they might split
+ the community into the most violent and irreconcilable factions,
+ adhering differently to the different individuals who composed the
+ magistracy.
+Men often oppose a thing, merely because they have had no agency
+ in planning it, or because it may have been planned by those whom
+ they dislike. But if they have been consulted, and have happened to
+ disapprove, opposition then becomes, in their estimation, an
+ indispensable duty of self-love. They seem to think themselves
+ bound in honor, and by all the motives of personal infallibility, to
+ defeat the success of what has been resolved upon contrary to their
+ sentiments. Men of upright, benevolent tempers have too many
+ opportunities of remarking, with horror, to what desperate lengths
+ this disposition is sometimes carried, and how often the great
+ interests of society are sacrificed to the vanity, to the conceit,
+ and to the obstinacy of individuals, who have credit enough to make
+ their passions and their caprices interesting to mankind. Perhaps
+ the question now before the public may, in its consequences, afford
+ melancholy proofs of the effects of this despicable frailty, or
+ rather detestable vice, in the human character.
+Upon the principles of a free government, inconveniences from
+ the source just mentioned must necessarily be submitted to in the
+ formation of the legislature; but it is unnecessary, and therefore
+ unwise, to introduce them into the constitution of the Executive.
+ It is here too that they may be most pernicious. In the
+ legislature, promptitude of decision is oftener an evil than a
+ benefit. The differences of opinion, and the jarrings of parties in
+ that department of the government, though they may sometimes
+ obstruct salutary plans, yet often promote deliberation and
+ circumspection, and serve to check excesses in the majority. When a
+ resolution too is once taken, the opposition must be at an end.
+ That resolution is a law, and resistance to it punishable. But no
+ favorable circumstances palliate or atone for the disadvantages of
+ dissension in the executive department. Here, they are pure and
+ unmixed. There is no point at which they cease to operate. They
+ serve to embarrass and weaken the execution of the plan or measure
+ to which they relate, from the first step to the final conclusion of
+ it. They constantly counteract those qualities in the Executive
+ which are the most necessary ingredients in its composition, vigor
+ and expedition, and this without anycounterbalancing good. In the
+ conduct of war, in which the energy of the Executive is the bulwark
+ of the national security, every thing would be to be apprehended
+ from its plurality.
+It must be confessed that these observations apply with
+ principal weight to the first case supposed that is, to a plurality
+ of magistrates of equal dignity and authority a scheme, the
+ advocates for which are not likely to form a numerous sect; but
+ they apply, though not with equal, yet with considerable weight to
+ the project of a council, whose concurrence is made constitutionally
+ necessary to the operations of the ostensible Executive. An artful
+ cabal in that council would be able to distract and to enervate the
+ whole system of administration. If no such cabal should exist, the
+ mere diversity of views and opinions would alone be sufficient to
+ tincture the exercise of the executive authority with a spirit of
+ habitual feebleness and dilatoriness.
+But one of the weightiest objections to a plurality in the
+ Executive, and which lies as much against the last as the first
+ plan, is, that it tends to conceal faults and destroy responsibility.
+ Responsibility is of two kinds to censure and to punishment. The
+ first is the more important of the two, especially in an elective
+ office. Man, in public trust, will much oftener act in such a
+ manner as to render him unworthy of being any longer trusted, than
+ in such a manner as to make him obnoxious to legal punishment. But
+ the multiplication of the Executive adds to the difficulty of
+ detection in either case. It often becomes impossible, amidst
+ mutual accusations, to determine on whom the blame or the punishment
+ of a pernicious measure, or series of pernicious measures, ought
+ really to fall. It is shifted from one to another with so much
+ dexterity, and under such plausible appearances, that the public
+ opinion is left in suspense about the real author. The
+ circumstances which may have led to any national miscarriage or
+ misfortune are sometimes so complicated that, where there are a
+ number of actors who may have had different degrees and kinds of
+ agency, though we may clearly see upon the whole that there has been
+ mismanagement, yet it may be impracticable to pronounce to whose
+ account the evil which may have been incurred is truly chargeable.
+``I was overruled by my council. The council were so divided in
+ their opinions that it was impossible to obtain any better
+ resolution on the point.'' These and similar pretexts are
+ constantly at hand, whether true or false. And who is there that
+ will either take the trouble or incur the odium, of a strict
+ scrunity into the secret springs of the transaction? Should there
+ be found a citizen zealous enough to undertake the unpromising task,
+ if there happen to be collusion between the parties concerned, how
+ easy it is to clothe the circumstances with so much ambiguity, as to
+ render it uncertain what was the precise conduct of any of those
+ parties?
+In the single instance in which the governor of this State is
+ coupled with a council that is, in the appointment to offices, we
+ have seen the mischiefs of it in the view now under consideration.
+ Scandalous appointments to important offices have been made. Some
+ cases, indeed, have been so flagrant that ALL PARTIES have agreed in
+ the impropriety of the thing. When inquiry has been made, the blame
+ has been laid by the governor on the members of the council, who, on
+ their part, have charged it upon his nomination; while the people
+ remain altogether at a loss to determine, by whose influence their
+ interests have been committed to hands so unqualified and so
+ manifestly improper. In tenderness to individuals, I forbear to
+ descend to particulars.
+It is evident from these considerations, that the plurality of
+ the Executive tends to deprive the people of the two greatest
+ securities they can have for the faithful exercise of any delegated
+ power, first, the restraints of public opinion, which lose their
+ efficacy, as well on account of the division of the censure
+ attendant on bad measures among a number, as on account of the
+ uncertainty on whom it ought to fall; and, secondly, the
+ opportunity of discovering with facility and clearness the
+ misconduct of the persons they trust, in order either to their
+ removal from office or to their actual punishment in cases which
+ admit of it.
+In England, the king is a perpetual magistrate; and it is a
+ maxim which has obtained for the sake of the pub lic peace, that he
+ is unaccountable for his administration, and his person sacred.
+ Nothing, therefore, can be wiser in that kingdom, than to annex to
+ the king a constitutional council, who may be responsible to the
+ nation for the advice they give. Without this, there would be no
+ responsibility whatever in the executive department an idea
+ inadmissible in a free government. But even there the king is not
+ bound by the resolutions of his council, though they are answerable
+ for the advice they give. He is the absolute master of his own
+ conduct in the exercise of his office, and may observe or disregard
+ the counsel given to him at his sole discretion.
+But in a republic, where every magistrate ought to be personally
+ responsible for his behavior in office the reason which in the
+ British Constitution dictates the propriety of a council, not only
+ ceases to apply, but turns against the institution. In the monarchy
+ of Great Britain, it furnishes a substitute for the prohibited
+ responsibility of the chief magistrate, which serves in some degree
+ as a hostage to the national justice for his good behavior. In the
+ American republic, it would serve to destroy, or would greatly
+ diminish, the intended and necessary responsibility of the Chief
+ Magistrate himself.
+The idea of a council to the Executive, which has so generally
+ obtained in the State constitutions, has been derived from that
+ maxim of republican jealousy which considers power as safer in the
+ hands of a number of men than of a single man. If the maxim should
+ be admitted to be applicable to the case, I should contend that the
+ advantage on that side would not counterbalance the numerous
+ disadvantages on the opposite side. But I do not think the rule at
+ all applicable to the executive power. I clearly concur in opinion,
+ in this particular, with a writer whom the celebrated Junius
+ pronounces to be ``deep, solid, and ingenious,'' that ``the
+ executive power is more easily confined when it is ONE'';2 that
+ it is far more safe there should be a single object for the jealousy
+ and watchfulness of the people; and, in a word, that all
+ multiplication of the Executive is rather dangerous than friendly to
+ liberty.
+A little consideration will satisfy us, that the species of
+ security sought for in the multiplication of the Executive, is
+ nattainable. Numbers must be so great as to render combination
+ difficult, or they are rather a source of danger than of security.
+ The united credit and influence of several individuals must be more
+ formidable to liberty, than the credit and influence of either of
+ them separately. When power, therefore, is placed in the hands of
+ so small a number of men, as to admit of their interests and views
+ being easily combined in a common enterprise, by an artful leader,
+ it becomes more liable to abuse, and more dangerous when abused,
+ than if it be lodged in the hands of one man; who, from the very
+ circumstance of his being alone, will be more narrowly watched and
+ more readily suspected, and who cannot unite so great a mass of
+ influence as when he is associated with others. The Decemvirs of
+ Rome, whose name denotes their number,3 were more to be dreaded
+ in their usurpation than any ONE of them would have been. No person
+ would think of proposing an Executive much more numerous than that
+ body; from six to a dozen have been suggested for the number of the
+ council. The extreme of these numbers, is not too great for an easy
+ combination; and from such a combination America would have more to
+ fear, than from the ambition of any single individual. A council to
+ a magistrate, who is himself responsible for what he does, are
+ generally nothing better than a clog upon his good intentions, are
+ often the instruments and accomplices of his bad and are almost
+ always a cloak to his faults.
+I forbear to dwell upon the subject of expense; though it be
+ evident that if the council should be numerous enough to answer the
+ principal end aimed at by the institution, the salaries of the
+ members, who must be drawn from their homes to reside at the seat of
+ government, would form an item in the catalogue of public
+ expenditures too serious to be incurred for an object of equivocal
+ utility. I will only add that, prior to the appearance of the
+ Constitution, I rarely met with an intelligent man from any of the
+ States, who did not admit, as the result of experience, that the
+ UNITY of the executive of this State was one of the best of the
+ distinguishing features of our constitution.
+PUBLIUS.
+1 New York has no council except for the single purpose of
+ appointing to offices; New Jersey has a council whom the governor
+ may consult. But I think, from the terms of the constitution, their
+ resolutions do not bind him.
+2 De Lolme.
+3 Ten.
+
+*There are two slightly different versions of No. 70 included here.
+
+FEDERALIST No. 70
+
+The Executive Department Further Considered
+From the New York Packet.
+Tuesday, March 18, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THERE is an idea, which is not without its advocates, that a
+ vigorous Executive is inconsistent with the genius of republican
+ government. The enlightened well-wishers to this species of
+ government must at least hope that the supposition is destitute of
+ foundation; since they can never admit its truth, without at the
+ same time admitting the condemnation of their own principles.
+ Energy in the Executive is a leading character in the definition of
+ good government. It is essential to the protection of the community
+ against foreign attacks; it is not less essential to the steady
+ administration of the laws; to the protection of property against
+ those irregular and high-handed combinations which sometimes
+ interrupt the ordinary course of justice; to the security of
+ liberty against the enterprises and assaults of ambition, of
+ faction, and of anarchy. Every man the least conversant in Roman
+ story, knows how often that republic was obliged to take refuge in
+ the absolute power of a single man, under the formidable title of
+ Dictator, as well against the intrigues of ambitious individuals who
+ aspired to the tyranny, and the seditions of whole classes of the
+ community whose conduct threatened the existence of all government,
+ as against the invasions of external enemies who menaced the
+ conquest and destruction of Rome.
+There can be no need, however, to multiply arguments or examples
+ on this head. A feeble Executive implies a feeble execution of the
+ government. A feeble execution is but another phrase for a bad
+ execution; and a government ill executed, whatever it may be in
+ theory, must be, in practice, a bad government.
+Taking it for granted, therefore, that all men of sense will
+ agree in the necessity of an energetic Executive, it will only
+ remain to inquire, what are the ingredients which constitute this
+ energy? How far can they be combined with those other ingredients
+ which constitute safety in the republican sense? And how far does
+ this combination characterize the plan which has been reported by
+ the convention?
+The ingredients which constitute energy in the Executive are,
+ first, unity; secondly, duration; thirdly, an adequate provision
+ for its support; fourthly, competent powers.
+The ingredients which constitute safety in the repub lican sense
+ are, first, a due dependence on the people, secondly, a due
+ responsibility.
+Those politicians and statesmen who have been the most
+ celebrated for the soundness of their principles and for the justice
+ of their views, have declared in favor of a single Executive and a
+ numerous legislature. They have with great propriety, considered
+ energy as the most necessary qualification of the former, and have
+ regarded this as most applicable to power in a single hand, while
+ they have, with equal propriety, considered the latter as best
+ adapted to deliberation and wisdom, and best calculated to
+ conciliate the confidence of the people and to secure their
+ privileges and interests.
+That unity is conducive to energy will not be disputed.
+ Decision, activity, secrecy, and despatch will generally
+ characterize the proceedings of one man in a much more eminent
+ degree than the proceedings of any greater number; and in
+ proportion as the number is increased, these qualities will be
+ diminished.
+This unity may be destroyed in two ways: either by vesting the
+ power in two or more magistrates of equal dignity and authority; or
+ by vesting it ostensibly in one man, subject, in whole or in part,
+ to the control and co-operation of others, in the capacity of
+ counsellors to him. Of the first, the two Consuls of Rome may serve
+ as an example; of the last, we shall find examples in the
+ constitutions of several of the States. New York and New Jersey, if
+ I recollect right, are the only States which have intrusted the
+ executive authority wholly to single men.1 Both these methods
+ of destroying the unity of the Executive have their partisans; but
+ the votaries of an executive council are the most numerous. They
+ are both liable, if not to equal, to similar objections, and may in
+ most lights be examined in conjunction.
+The experience of other nations will afford little instruction
+ on this head. As far, however, as it teaches any thing, it teaches
+ us not to be enamoured of plurality in the Executive. We have seen
+ that the Achaeans, on an experiment of two Praetors, were induced to
+ abolish one. The Roman history records many instances of mischiefs
+ to the republic from the dissensions between the Consuls, and
+ between the military Tribunes, who were at times substituted for the
+ Consuls. But it gives us no specimens of any peculiar advantages
+ derived to the state from the circumstance of the plurality of those
+ magistrates. That the dissensions between them were not more
+ frequent or more fatal, is a matter of astonishment, until we advert
+ to the singular position in which the republic was almost
+ continually placed, and to the prudent policy pointed out by the
+ circumstances of the state, and pursued by the Consuls, of making a
+ division of the government between them. The patricians engaged in
+ a perpetual struggle with the plebeians for the preservation of
+ their ancient authorities and dignities; the Consuls, who were
+ generally chosen out of the former body, were commonly united by the
+ personal interest they had in the defense of the privileges of their
+ order. In addition to this motive of union, after the arms of the
+ republic had considerably expanded the bounds of its empire, it
+ became an established custom with the Consuls to divide the
+ administration between themselves by lot one of them remaining at
+ Rome to govern the city and its environs, the other taking the
+ command in the more distant provinces. This expedient must, no
+ doubt, have had great influence in preventing those collisions and
+ rivalships which might otherwise have embroiled the peace of the
+ republic.
+But quitting the dim light of historical research, attaching
+ ourselves purely to the dictates of reason and good se se, we shall
+ discover much greater cause to reject than to approve the idea of
+ plurality in the Executive, under any modification whatever.
+Wherever two or more persons are engaged in any common
+ enterprise or pursuit, there is always danger of difference of
+ opinion. If it be a public trust or office, in which they are
+ clothed with equal dignity and authority, there is peculiar danger
+ of personal emulation and even animosity. From either, and
+ especially from all these causes, the most bitter dissensions are
+ apt to spring. Whenever these happen, they lessen the
+ respectability, weaken the authority, and distract the plans and
+ operation of those whom they divide. If they should unfortunately
+ assail the supreme executive magistracy of a country, consisting of
+ a plurality of persons, they might impede or frustrate the most
+ important measures of the government, in the most critical
+ emergencies of the state. And what is still worse, they might split
+ the community into the most violent and irreconcilable factions,
+ adhering differently to the different individuals who composed the
+ magistracy.
+Men often oppose a thing, merely because they have had no agency
+ in planning it, or because it may have been planned by those whom
+ they dislike. But if they have been consulted, and have happened to
+ disapprove, opposition then becomes, in their estimation, an
+ indispensable duty of self-love. They seem to think themselves
+ bound in honor, and by all the motives of personal infallibility, to
+ defeat the success of what has been resolved upon contrary to their
+ sentiments. Men of upright, benevolent tempers have too many
+ opportunities of remarking, with horror, to what desperate lengths
+ this disposition is sometimes carried, and how often the great
+ interests of society are sacrificed to the vanity, to the conceit,
+ and to the obstinacy of individuals, who have credit enough to make
+ their passions and their caprices interesting to mankind. Perhaps
+ the question now before the public may, in its consequences, afford
+ melancholy proofs of the effects of this despicable frailty, or
+ rather detestable vice, in the human character.
+Upon the principles of a free government, inconveniences from
+ the source just mentioned must necessarily be submitted to in the
+ formation of the legislature; but it is unnecessary, and therefore
+ unwise, to introduce them into the constitution of the Executive.
+ It is here too that they may be most pernicious. In the
+ legislature, promptitude of decision is oftener an evil than a
+ benefit. The differences of opinion, and the jarrings of parties in
+ that department of the government, though they may sometimes
+ obstruct salutary plans, yet often promote deliberation and
+ circumspection, and serve to check excesses in the majority. When a
+ resolution too is once taken, the opposition must be at an end.
+ That resolution is a law, and resistance to it punishable. But no
+ favorable circumstances palliate or atone for the disadvantages of
+ dissension in the executive department. Here, they are pure and
+ unmixed. There is no point at which they cease to operate. They
+ serve to embarrass and weaken the execution of the plan or measure
+ to which they relate, from the first step to the final conclusion of
+ it. They constantly counteract those qualities in the Executive
+ which are the most necessary ingredients in its composition, vigor
+ and expedition, and this without anycounterbalancing good. In the
+ conduct of war, in which the energy of the Executive is the bulwark
+ of the national security, every thing would be to be apprehended
+ from its plurality.
+It must be confessed that these observations apply with
+ principal weight to the first case supposed that is, to a plurality
+ of magistrates of equal dignity and authority a scheme, the
+ advocates for which are not likely to form a numerous sect; but
+ they apply, though not with equal, yet with considerable weight to
+ the project of a council, whose concurrence is made constitutionally
+ necessary to the operations of the ostensible Executive. An artful
+ cabal in that council would be able to distract and to enervate the
+ whole system of administration. If no such cabal should exist, the
+ mere diversity of views and opinions would alone be sufficient to
+ tincture the exercise of the executive authority with a spirit of
+ habitual feebleness and dilatoriness.
+But one of the weightiest objections to a plurality in the
+ Executive, and which lies as much against the last as the first
+ plan, is, that it tends to conceal faults and destroy responsibility.
+Responsibility is of two kinds to censure and to punishment. The
+ first is the more important of the two, especially in an elective
+ office. Man, in public trust, will much oftener act in such a
+ manner as to render him unworthy of being any longer trusted, than
+ in such a manner as to make him obnoxious to legal punishment. But
+ the multiplication of the Executive adds to the difficulty of
+ detection in either case. It often becomes impossible, amidst
+ mutual accusations, to determine on whom the blame or the punishment
+ of a pernicious measure, or series of pernicious measures, ought
+ really to fall. It is shifted from one to another with so much
+ dexterity, and under such plausible appearances, that the public
+ opinion is left in suspense about the real author. The
+ circumstances which may have led to any national miscarriage or
+ misfortune are sometimes so complicated that, where there are a
+ number of actors who may have had different degrees and kinds of
+ agency, though we may clearly see upon the whole that there has been
+ mismanagement, yet it may be impracticable to pronounce to whose
+ account the evil which may have been incurred is truly chargeable.
+``I was overruled by my council. The council were so divided in
+ their opinions that it was impossible to obtain any better
+ resolution on the point.'' These and similar pretexts are
+ constantly at hand, whether true or false. And who is there that
+ will either take the trouble or incur the odium, of a strict
+ scrunity into the secret springs of the transaction? Should there
+ be found a citizen zealous enough to undertake the unpromising task,
+ if there happen to be collusion between the parties concerned, how
+ easy it is to clothe the circumstances with so much ambiguity, as to
+ render it uncertain what was the precise conduct of any of those
+ parties?
+In the single instance in which the governor of this State is
+ coupled with a council that is, in the appointment to offices, we
+ have seen the mischiefs of it in the view now under consideration.
+ Scandalous appointments to important offices have been made. Some
+ cases, indeed, have been so flagrant that ALL PARTIES have agreed in
+ the impropriety of the thing. When inquiry has been made, the blame
+ has been laid by the governor on the members of the council, who, on
+ their part, have charged it upon his nomination; while the people
+ remain altogether at a loss to determine, by whose influence their
+ interests have been committed to hands so unqualified and so
+ manifestly improper. In tenderness to individuals, I forbear to
+ descend to particulars.
+It is evident from these considerations, that the plurality of
+ the Executive tends to deprive the people of the two greatest
+ securities they can have for the faithful exercise of any delegated
+ power, first, the restraints of public opinion, which lose their
+ efficacy, as well on account of the division of the censure
+ attendant on bad measures among a number, as on account of the
+ uncertainty on whom it ought to fall; and, secondly, the
+ opportunity of discovering with facility and clearness the
+ misconduct of the persons they trust, in order either to their
+ removal from office or to their actual punishment in cases which
+ admit of it.
+In England, the king is a perpetual magistrate; and it is a
+ maxim which has obtained for the sake of the pub lic peace, that he
+ is unaccountable for his administration, and his person sacred.
+ Nothing, therefore, can be wiser in that kingdom, than to annex to
+ the king a constitutional council, who may be responsible to the
+ nation for the advice they give. Without this, there would be no
+ responsibility whatever in the executive department an idea
+ inadmissible in a free government. But even there the king is not
+ bound by the resolutions of his council, though they are answerable
+ for the advice they give. He is the absolute master of his own
+ conduct in the exercise of his office, and may observe or disregard
+ the counsel given to him at his sole discretion.
+But in a republic, where every magistrate ought to be personally
+ responsible for his behavior in office the reason which in the
+ British Constitution dictates the propriety of a council, not only
+ ceases to apply, but turns against the institution. In the monarchy
+ of Great Britain, it furnishes a substitute for the prohibited
+ responsibility of the chief magistrate, which serves in some degree
+ as a hostage to the national justice for his good behavior. In the
+ American republic, it would serve to destroy, or would greatly
+ diminish, the intended and necessary responsibility of the Chief
+ Magistrate himself.
+The idea of a council to the Executive, which has so generally
+ obtained in the State constitutions, has been derived from that
+ maxim of republican jealousy which considers power as safer in the
+ hands of a number of men than of a single man. If the maxim should
+ be admitted to be applicable to the case, I should contend that the
+ advantage on that side would not counterbalance the numerous
+ disadvantages on the opposite side. But I do not think the rule at
+ all applicable to the executive power. I clearly concur in opinion,
+ in this particular, with a writer whom the celebrated Junius
+ pronounces to be ``deep, solid, and ingenious,'' that ``the
+ executive power is more easily confined when it is ONE'';2 that
+ it is far more safe there should be a single object for the jealousy
+ and watchfulness of the people; and, in a word, that all
+ multiplication of the Executive is rather dangerous than friendly to
+ liberty.
+A little consideration will satisfy us, that the species of
+ security sought for in the multiplication of the Executive, is
+ nattainable. Numbers must be so great as to render combination
+ difficult, or they are rather a source of danger than of security.
+ The united credit and influence of several individuals must be more
+ formidable to liberty, than the credit and influence of either of
+ them separately. When power, therefore, is placed in the hands of
+ so small a number of men, as to admit of their interests and views
+ being easily combined in a common enterprise, by an artful leader,
+ it becomes more liable to abuse, and more dangerous when abused,
+ than if it be lodged in the hands of one man; who, from the very
+ circumstance of his being alone, will be more narrowly watched and
+ more readily suspected, and who cannot unite so great a mass of
+ influence as when he is associated with others. The Decemvirs of
+ Rome, whose name denotes their number,3 were more to be dreaded
+ in their usurpation than any ONE of them would have been. No person
+ would think of proposing an Executive much more numerous than that
+ body; from six to a dozen have been suggested for the number of the
+ council. The extreme of these numbers, is not too great for an easy
+ combination; and from such a combination America would have more to
+ fear, than from the ambition of any single individual. A council to
+ a magistrate, who is himself responsible for what he does, are
+ generally nothing better than a clog upon his good intentions, are
+ often the instruments and accomplices of his bad and are almost
+ always a cloak to his faults.
+I forbear to dwell upon the subject of expense; though it be
+ evident that if the council should be numerous enough to answer the
+ principal end aimed at by the institution, the salaries of the
+ members, who must be drawn from their homes to reside at the seat of
+ government, would form an item in the catalogue of public
+ expenditures too serious to be incurred for an object of equivocal
+ utility. I will only add that, prior to the appearance of the
+ Constitution, I rarely met with an intelligent man from any of the
+ States, who did not admit, as the result of experience, that the
+ UNITY of the executive of this State was one of the best of the
+ distinguishing features of our constitution.
+PUBLIUS.
+1 New York has no council except for the single purpose of
+ appointing to offices; New Jersey has a council whom the governor
+ may consult. But I think, from the terms of the constitution, their
+ resolutions do not bind him.
+2 De Lolme.
+3 Ten.
+
+
+FEDERALIST No. 71
+
+The Duration in Office of the Executive
+From the New York Packet.
+Tuesday, March 18, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+DURATION in office has been mentioned as the second requisite to
+ the energy of the Executive authority. This has relation to two
+ objects: to the personal firmness of the executive magistrate, in
+ the employment of his constitutional powers; and to the stability
+ of the system of administration which may have been adopted under
+ his auspices. With regard to the first, it must be evident, that
+ the longer the duration in office, the greater will be the
+ probability of obtaining so important an advantage. It is a general
+ principle of human nature, that a man will be interested in whatever
+ he possesses, in proportion to the firmness or precariousness of the
+ tenure by which he holds it; will be less attached to what he holds
+ by a momentary or uncertain title, than to what he enjoys by a
+ durable or certain title; and, of course, will be willing to risk
+ more for the sake of the one, than for the sake of the other. This
+ remark is not less applicable to a political privilege, or honor, or
+ trust, than to any article of ordinary property. The inference from
+ it is, that a man acting in the capacity of chief magistrate, under
+ a consciousness that in a very short time he MUST lay down his
+ office, will be apt to feel himself too little interested in it to
+ hazard any material censure or perplexity, from the independent
+ exertion of his powers, or from encountering the ill-humors, however
+ transient, which may happen to prevail, either in a considerable
+ part of the society itself, or even in a predominant faction in the
+ legislative body. If the case should only be, that he MIGHT lay it
+ down, unless continued by a new choice, and if he should be desirous
+ of being continued, his wishes, conspiring with his fears, would
+ tend still more powerfully to corrupt his integrity, or debase his
+ fortitude. In either case, feebleness and irresolution must be the
+ characteristics of the station.
+There are some who would be inclined to regard the servile
+ pliancy of the Executive to a prevailing current, either in the
+ community or in the legislature, as its best recommendation. But
+ such men entertain very crude notions, as well of the purposes for
+ which government was instituted, as of the true means by which the
+ public happiness may be promoted. The republican principle demands
+ that the deliberate sense of the community should govern the conduct
+ of those to whom they intrust the management of their affairs; but
+ it does not require an unqualified complaisance to every sudden
+ breeze of passion, or to every transient impulse which the people
+ may receive from the arts of men, who flatter their prejudices to
+ betray their interests. It is a just observation, that the people
+ commonly INTEND the PUBLIC GOOD. This often applies to their very
+ errors. But their good sense would despise the adulator who should
+ pretend that they always REASON RIGHT about the MEANS of promoting
+ it. They know from experience that they sometimes err; and the
+ wonder is that they so seldom err as they do, beset, as they
+ continually are, by the wiles of parasites and sycophants, by the
+ snares of the ambitious, the avaricious, the desperate, by the
+ artifices of men who possess their confidence more than they deserve
+ it, and of those who seek to possess rather than to deserve it.
+ When occasions present themselves, in which the interests of the
+ people are at variance with their inclinations, it is the duty of
+ the persons whom they have appointed to be the guardians of those
+ interests, to withstand the temporary delusion, in order to give
+ them time and opportunity for more cool and sedate reflection.
+ Instances might be cited in which a conduct of this kind has saved
+ the people from very fatal consequences of their own mistakes, and
+ has procured lasting monuments of their gratitude to the men who had
+ courage and magnanimity enough to serve them at the peril of their
+ displeasure.
+But however inclined we might be to insist upon an unbounded
+ complaisance in the Executive to the inclinations of the people, we
+ can with no propriety contend for a like complaisance to the humors
+ of the legislature. The latter may sometimes stand in opposition to
+ the former, and at other times the people may be entirely neutral.
+ In either supposition, it is certainly desirable that the Executive
+ should be in a situation to dare to act his own opinion with vigor
+ and decision.
+The same rule which teaches the propriety of a partition between
+ the various branches of power, teaches us likewise that this
+ partition ought to be so contrived as to render the one independent
+ of the other. To what purpose separate the executive or the
+ judiciary from the legislative, if both the executive and the
+ judiciary are so constituted as to be at the absolute devotion of
+ the legislative? Such a separation must be merely nominal, and
+ incapable of producing the ends for which it was established. It is
+ one thing to be subordinate to the laws, and another to be dependent
+ on the legislative body. The first comports with, the last
+ violates, the fundamental principles of good government; and,
+ whatever may be the forms of the Constitution, unites all power in
+ the same hands. The tendency of the legislative authority to absorb
+ every other, has been fully displayed and illustrated by examples in
+ some preceding numbers. In governments purely republican, this
+ tendency is almost irresistible. The representatives of the people,
+ in a popular assembly, seem sometimes to fancy that they are the
+ people themselves, and betray strong symptoms of impatience and
+ disgust at the least sign of opposition from any other quarter; as
+ if the exercise of its rights, by either the executive or judiciary,
+ were a breach of their privilege and an outrage to their dignity.
+ They often appear disposed to exert an imperious control over the
+ other departments; and as they commonly have the people on their
+ side, they always act with such momentum as to make it very
+ difficult for the other members of the government to maintain the
+ balance of the Constitution.
+It may perhaps be asked, how the shortness of the duration in
+ office can affect the independence of the Executive on the
+ legislature, unless the one were possessed of the power of
+ appointing or displacing the other. One answer to this inquiry may
+ be drawn from the principle already remarked that is, from the
+ slender interest a man is apt to take in a short-lived advantage,
+ and the little inducement it affords him to expose himself, on
+ account of it, to any considerable inconvenience or hazard. Another
+ answer, perhaps more obvious, though not more conclusive, will
+ result from the consideration of the influence of the legislative
+ body over the people; which might be employed to prevent the
+ re-election of a man who, by an upright resistance to any sinister
+ project of that body, should have made himself obnoxious to its
+ resentment.
+It may be asked also, whether a duration of four years would
+ answer the end proposed; and if it would not, whether a less
+ period, which would at least be recommended by greater security
+ against ambitious designs, would not, for that reason, be preferable
+ to a longer period, which was, at the same time, too short for the
+ purpose of inspiring the desired firmness and independence of the
+ magistrate.
+It cannot be affirmed, that a duration of four years, or any
+ other limited duration, would completely answer the end proposed;
+ but it would contribute towards it in a degree which would have a
+ material influence upon the spirit and character of the government.
+ Between the commencement and termination of such a period, there
+ would always be a considerable interval, in which the prospect of
+ annihilation would be sufficiently remote, not to have an improper
+ effect upon the conduct of a man indued with a tolerable portion of
+ fortitude; and in which he might reasonably promise himself, that
+ there would be time enough before it arrived, to make the community
+ sensible of the propriety of the measures he might incline to pursue.
+ Though it be probable that, as he approached the moment when the
+ public were, by a new election, to signify their sense of his
+ conduct, his confidence, and with it his firmness, would decline;
+ yet both the one and the other would derive support from the
+ opportunities which his previous continuance in the station had
+ afforded him, of establishing himself in the esteem and good-will of
+ his constituents. He might, then, hazard with safety, in proportion
+ to the proofs he had given of his wisdom and integrity, and to the
+ title he had acquired to the respect and attachment of his
+ fellow-citizens. As, on the one hand, a duration of four years will
+ contribute to the firmness of the Executive in a sufficient degree
+ to render it a very valuable ingredient in the composition; so, on
+ the other, it is not enough to justify any alarm for the public
+ liberty. If a British House of Commons, from the most feeble
+ beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE
+ IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the
+ prerogatives of the crown and the privileges of the nobility within
+ the limits they conceived to be compatible with the principles of a
+ free government, while they raised themselves to the rank and
+ consequence of a coequal branch of the legislature; if they have
+ been able, in one instance, to abolish both the royalty and the
+ aristocracy, and to overturn all the ancient establishments, as well
+ in the Church as State; if they have been able, on a recent
+ occasion, to make the monarch tremble at the prospect of an
+ innovation1 attempted by them, what would be to be feared from
+ an elective magistrate of four years' duration, with the confined
+ authorities of a President of the United States? What, but that he
+ might be unequal to the task which the Constitution assigns him? I
+ shall only add, that if his duration be such as to leave a doubt of
+ his firmness, that doubt is inconsistent with a jealousy of his
+ encroachments.
+PUBLIUS.
+1 This was the case with respect to Mr. Fox's India bill, which
+ was carried in the House of Commons, and rejected in the House of
+ Lords, to the entire satisfaction, as it is said, of the people.
+
+
+FEDERALIST No. 72
+
+The Same Subject Continued, and Re-Eligibility of the Executive
+ Considered
+From the New York Packet.
+Friday, March 21, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE administration of government, in its largest sense,
+ comprehends all the operations of the body politic, whether
+ legislative, executive, or judiciary; but in its most usual, and
+ perhaps its most precise signification. It is limited to executive
+ details, and falls peculiarly within the province of the executive
+ department. The actual conduct of foreign negotiations, the
+ preparatory plans of finance, the application and disbursement of
+ the public moneys in conformity to the general appropriations of the
+ legislature, the arrangement of the army and navy, the directions of
+ the operations of war, these, and other matters of a like nature,
+ constitute what seems to be most properly understood by the
+ administration of government. The persons, therefore, to whose
+ immediate management these different matters are committed, ought to
+ be considered as the assistants or deputies of the chief magistrate,
+ and on this account, they ought to derive their offices from his
+ appointment, at least from his nomination, and ought to be subject
+ to his superintendence. This view of the subject will at once
+ suggest to us the intimate connection between the duration of the
+ executive magistrate in office and the stability of the system of
+ administration. To reverse and undo what has been done by a
+ predecessor, is very often considered by a successor as the best
+ proof he can give of his own capacity and desert; and in addition
+ to this propensity, where the alteration has been the result of
+ public choice, the person substituted is warranted in supposing that
+ the dismission of his predecessor has proceeded from a dislike to
+ his measures; and that the less he resembles him, the more he will
+ recommend himself to the favor of his constituents. These
+ considerations, and the influence of personal confidences and
+ attachments, would be likely to induce every new President to
+ promote a change of men to fill the subordinate stations; and these
+ causes together could not fail to occasion a disgraceful and ruinous
+ mutability in the administration of the government.
+With a positive duration of considerable extent, I connect the
+ circumstance of re-eligibility. The first is necessary to give to
+ the officer himself the inclination and the resolution to act his
+ part well, and to the community time and leisure to observe the
+ tendency of his measures, and thence to form an experimental
+ estimate of their merits. The last is necessary to enable the
+ people, when they see reason to approve of his conduct, to continue
+ him in his station, in order to prolong the utility of his talents
+ and virtues, and to secure to the government the advantage of
+ permanency in a wise system of administration.
+Nothing appears more plausible at first sight, nor more
+ ill-founded upon close inspection, than a scheme which in relation
+ to the present point has had some respectable advocates, I mean that
+ of continuing the chief magistrate in office for a certain time, and
+ then excluding him from it, either for a limited period or forever
+ after. This exclusion, whether temporary or perpetual, would have
+ nearly the same effects, and these effects would be for the most
+ part rather pernicious than salutary.
+One ill effect of the exclusion would be a diminution of the
+ inducements to good behavior. There are few men who would not feel
+ much less zeal in the discharge of a duty when they were conscious
+ that the advantages of the station with which it was connected must
+ be relinquished at a determinate period, than when they were
+ permitted to entertain a hope of OBTAINING, by MERITING, a
+ continuance of them. This position will not be disputed so long as
+ it is admitted that the desire of reward is one of the strongest
+ incentives of human conduct; or that the best security for the
+ fidelity of mankind is to make their interests coincide with their
+ duty. Even the love of fame, the ruling passion of the noblest
+ minds, which would prompt a man to plan and undertake extensive and
+ arduous enterprises for the public benefit, requiring considerable
+ time to mature and perfect them, if he could flatter himself with
+ the prospect of being allowed to finish what he had begun, would, on
+ the contrary, deter him from the undertaking, when he foresaw that
+ he must quit the scene before he could accomplish the work, and must
+ commit that, together with his own reputation, to hands which might
+ be unequal or unfriendly to the task. The most to be expected from
+ the generality of men, in such a situation, is the negative merit of
+ not doing harm, instead of the positive merit of doing good.
+Another ill effect of the exclusion would be the temptation to
+ sordid views, to peculation, and, in some instances, to usurpation.
+ An avaricious man, who might happen to fill the office, looking
+ forward to a time when he must at all events yield up the emoluments
+ he enjoyed, would feel a propensity, not easy to be resisted by such
+ a man, to make the best use of the opportunity he enjoyed while it
+ lasted, and might not scruple to have recourse to the most corrupt
+ expedients to make the harvest as abundant as it was transitory;
+ though the same man, probably, with a different prospect before
+ him, might content himself with the regular perquisites of his
+ situation, and might even be unwilling to risk the consequences of
+ an abuse of his opportunities. His avarice might be a guard upon
+ his avarice. Add to this that the same man might be vain or
+ ambitious, as well as avaricious. And if he could expect to prolong
+ his honors by his good conduct, he might hesitate to sacrifice his
+ appetite for them to his appetite for gain. But with the prospect
+ before him of approaching an inevitable annihilation, his avarice
+ would be likely to get the victory over his caution, his vanity, or
+ his ambition.
+An ambitious man, too, when he found himself seated on the
+ summit of his country's honors, when he looked forward to the time
+ at which he must descend from the exalted eminence for ever, and
+ reflected that no exertion of merit on his part could save him from
+ the unwelcome reverse; such a man, in such a situation, would be
+ much more violently tempted to embrace a favorable conjuncture for
+ attempting the prolongation of his power, at every personal hazard,
+ than if he had the probability of answering the same end by doing
+ his duty.
+Would it promote the peace of the community, or the stability of
+ the government to have half a dozen men who had had credit enough to
+ be raised to the seat of the supreme magistracy, wandering among the
+ people like discontented ghosts, and sighing for a place which they
+ were destined never more to possess?
+A third ill effect of the exclusion would be, the depriving the
+ community of the advantage of the experience gained by the chief
+ magistrate in the exercise of his office. That experience is the
+ parent of wisdom, is an adage the truth of which is recognized by
+ the wisest as well as the simplest of mankind. What more desirable
+ or more essential than this quality in the governors of nations?
+ Where more desirable or more essential than in the first magistrate
+ of a nation? Can it be wise to put this desirable and essential
+ quality under the ban of the Constitution, and to declare that the
+ moment it is acquired, its possessor shall be compelled to abandon
+ the station in which it was acquired, and to which it is adapted?
+ This, nevertheless, is the precise import of all those regulations
+ which exclude men from serving their country, by the choice of their
+ fellowcitizens, after they have by a course of service fitted
+ themselves for doing it with a greater degree of utility.
+A fourth ill effect of the exclusion would be the banishing men
+ from stations in which, in certain emergencies of the state, their
+ presence might be of the greatest moment to the public interest or
+ safety. There is no nation which has not, at one period or another,
+ experienced an absolute necessity of the services of particular men
+ in particular situations; perhaps it would not be too strong to
+ say, to the preservation of its political existence. How unwise,
+ therefore, must be every such self-denying ordinance as serves to
+ prohibit a nation from making use of its own citizens in the manner
+ best suited to its exigencies and circumstances! Without supposing
+ the personal essentiality of the man, it is evident that a change of
+ the chief magistrate, at the breaking out of a war, or at any
+ similar crisis, for another, even of equal merit, would at all times
+ be detrimental to the community, inasmuch as it would substitute
+ inexperience to experience, and would tend to unhinge and set afloat
+ the already settled train of the administration.
+A fifth ill effect of the exclusion would be, that it would
+ operate as a constitutional interdiction of stability in the
+ administration. By NECESSITATING a change of men, in the first
+ office of the nation, it would necessitate a mutability of measures.
+ It is not generally to be expected, that men will vary and measures
+ remain uniform. The contrary is the usual course of things. And we
+ need not be apprehensive that there will be too much stability,
+ while there is even the option of changing; nor need we desire to
+ prohibit the people from continuing their confidence where they
+ think it may be safely placed, and where, by constancy on their
+ part, they may obviate the fatal inconveniences of fluctuating
+ councils and a variable policy.
+These are some of the disadvantages which would flow from the
+ principle of exclusion. They apply most forcibly to the scheme of a
+ perpetual exclusion; but when we consider that even a partial
+ exclusion would always render the readmission of the person a remote
+ and precarious object, the observations which have been made will
+ apply nearly as fully to one case as to the other.
+What are the advantages promised to counterbalance these
+ disadvantages? They are represented to be: 1st, greater
+ independence in the magistrate; 2d, greater security to the people.
+ Unless the exclusion be perpetual, there will be no pretense to
+ infer the first advantage. But even in that case, may he have no
+ object beyond his present station, to which he may sacrifice his
+ independence? May he have no connections, no friends, for whom he
+ may sacrifice it? May he not be less willing by a firm conduct, to
+ make personal enemies, when he acts under the impression that a time
+ is fast approaching, on the arrival of which he not only MAY, but
+ MUST, be exposed to their resentments, upon an equal, perhaps upon
+ an inferior, footing? It is not an easy point to determine whether
+ his independence would be most promoted or impaired by such an
+ arrangement.
+As to the second supposed advantage, there is still greater
+ reason to entertain doubts concerning it. If the exclusion were to
+ be perpetual, a man of irregular ambition, of whom alone there could
+ be reason in any case to entertain apprehension, would, with
+ infinite reluctance, yield to the necessity of taking his leave
+ forever of a post in which his passion for power and pre-eminence
+ had acquired the force of habit. And if he had been fortunate or
+ adroit enough to conciliate the good-will of the people, he might
+ induce them to consider as a very odious and unjustifiable restraint
+ upon themselves, a provision which was calculated to debar them of
+ the right of giving a fresh proof of their attachment to a favorite.
+ There may be conceived circumstances in which this disgust of the
+ people, seconding the thwarted ambition of such a favorite, might
+ occasion greater danger to liberty, than could ever reasonably be
+ dreaded from the possibility of a perpetuation in office, by the
+ voluntary suffrages of the community, exercising a constitutional
+ privilege.
+There is an excess of refinement in the idea of disabling the
+ people to continue in office men who had entitled themselves, in
+ their opinion, to approbation and confidence; the advantages of
+ which are at best speculative and equivocal, and are overbalanced by
+ disadvantages far more certain and decisive.
+PUBLIUS.
+
+
+FEDERALIST No. 73
+The Provision For The Support of the Executive, and the Veto Power
+From the New York Packet.
+Friday, March 21, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE third ingredient towards constituting the vigor of the
+ executive authority, is an adequate provision for its support. It
+ is evident that, without proper attention to this article, the
+ separation of the executive from the legislative department would be
+ merely nominal and nugatory. The legislature, with a discretionary
+ power over the salary and emoluments of the Chief Magistrate, could
+ render him as obsequious to their will as they might think proper to
+ make him. They might, in most cases, either reduce him by famine,
+ or tempt him by largesses, to surrender at discretion his judgment
+ to their inclinations. These expressions, taken in all the latitude
+ of the terms, would no doubt convey more than is intended. There
+ are men who could neither be distressed nor won into a sacrifice of
+ their duty; but this stern virtue is the growth of few soils; and
+ in the main it will be found that a power over a man's support is a
+ power over his will. If it were necessary to confirm so plain a
+ truth by facts, examples would not be wanting, even in this country,
+ of the intimidation or seduction of the Executive by the terrors or
+ allurements of the pecuniary arrangements of the legislative body.
+It is not easy, therefore, to commend too highly the judicious
+ attention which has been paid to this subject in the proposed
+ Constitution. It is there provided that ``The President of the
+ United States shall, at stated times, receive for his services a
+ compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING
+ THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT
+ RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United
+ States, or any of them.'' It is impossible to imagine any provision
+ which would have been more eligible than this. The legislature, on
+ the appointment of a President, is once for all to declare what
+ shall be the compensation for his services during the time for which
+ he shall have been elected. This done, they will have no power to
+ alter it, either by increase or diminution, till a new period of
+ service by a new election commences. They can neither weaken his
+ fortitude by operating on his necessities, nor corrupt his integrity
+ by appealing to his avarice. Neither the Union, nor any of its
+ members, will be at liberty to give, nor will he be at liberty to
+ receive, any other emolument than that which may have been
+ determined by the first act. He can, of course, have no pecuniary
+ inducement to renounce or desert the independence intended for him
+ by the Constitution.
+The last of the requisites to energy, which have been
+ enumerated, are competent powers. Let us proceed to consider those
+ which are proposed to be vested in the President of the United
+ States.
+The first thing that offers itself to our observation, is the
+ qualified negative of the President upon the acts or resolutions of
+ the two houses of the legislature; or, in other words, his power of
+ returning all bills with objections, to have the effect of
+ preventing their becoming laws, unless they should afterwards be
+ ratified by two thirds of each of the component members of the
+ legislative body.
+The propensity of the legislative department to intrude upon the
+ rights, and to absorb the powers, of the other departments, has been
+ already suggested and repeated; the insufficiency of a mere
+ parchment delineation of the boundaries of each, has also been
+ remarked upon; and the necessity of furnishing each with
+ constitutional arms for its own defense, has been inferred and
+ proved. From these clear and indubitable principles results the
+ propriety of a negative, either absolute or qualified, in the
+ Executive, upon the acts of the legislative branches. Without the
+ one or the other, the former would be absolutely unable to defend
+ himself against the depredations of the latter. He might gradually
+ be stripped of his authorities by successive resolutions, or
+ annihilated by a single vote. And in the one mode or the other, the
+ legislative and executive powers might speedily come to be blended
+ in the same hands. If even no propensity had ever discovered itself
+ in the legislative body to invade the rights of the Executive, the
+ rules of just reasoning and theoretic propriety would of themselves
+ teach us, that the one ought not to be left to the mercy of the
+ other, but ought to possess a constitutional and effectual power of
+ selfdefense.
+But the power in question has a further use. It not only serves
+ as a shield to the Executive, but it furnishes an additional
+ security against the enaction of improper laws. It establishes a
+ salutary check upon the legislative body, calculated to guard the
+ community against the effects of faction, precipitancy, or of any
+ impulse unfriendly to the public good, which may happen to influence
+ a majority of that body.
+The propriety of a negative has, upon some occasions, been
+ combated by an observation, that it was not to be presumed a single
+ man would possess more virtue and wisdom than a number of men; and
+ that unless this presumption should be entertained, it would be
+ improper to give the executive magistrate any species of control
+ over the legislative body.
+But this observation, when examined, will appear rather specious
+ than solid. The propriety of the thing does not turn upon the
+ supposition of superior wisdom or virtue in the Executive, but upon
+ the supposition that the legislature will not be infallible; that
+ the love of power may sometimes betray it into a disposition to
+ encroach upon the rights of other members of the government; that a
+ spirit of faction may sometimes pervert its deliberations; that
+ impressions of the moment may sometimes hurry it into measures which
+ itself, on maturer reflexion, would condemn. The primary inducement
+ to conferring the power in question upon the Executive is, to enable
+ him to defend himself; the secondary one is to increase the chances
+ in favor of the community against the passing of bad laws, through
+ haste, inadvertence, or design. The oftener the measure is brought
+ under examination, the greater the diversity in the situations of
+ those who are to examine it, the less must be the danger of those
+ errors which flow from want of due deliberation, or of those
+ missteps which proceed from the contagion of some common passion or
+ interest. It is far less probable, that culpable views of any kind
+ should infect all the parts of the government at the same moment and
+ in relation to the same object, than that they should by turns
+ govern and mislead every one of them.
+It may perhaps be said that the power of preventing bad laws
+ includes that of preventing good ones; and may be used to the one
+ purpose as well as to the other. But this objection will have
+ little weight with those who can properly estimate the mischiefs of
+ that inconstancy and mutability in the laws, which form the greatest
+ blemish in the character and genius of our governments. They will
+ consider every institution calculated to restrain the excess of
+ law-making, and to keep things in the same state in which they
+ happen to be at any given period, as much more likely to do good
+ than harm; because it is favorable to greater stability in the
+ system of legislation. The injury which may possibly be done by
+ defeating a few good laws, will be amply compensated by the
+ advantage of preventing a number of bad ones.
+Nor is this all. The superior weight and influence of the
+ legislative body in a free government, and the hazard to the
+ Executive in a trial of strength with that body, afford a
+ satisfactory security that the negative would generally be employed
+ with great caution; and there would oftener be room for a charge of
+ timidity than of rashness in the exercise of it. A king of Great
+ Britain, with all his train of sovereign attributes, and with all
+ the influence he draws from a thousand sources, would, at this day,
+ hesitate to put a negative upon the joint resolutions of the two
+ houses of Parliament. He would not fail to exert the utmost
+ resources of that influence to strangle a measure disagreeable to
+ him, in its progress to the throne, to avoid being reduced to the
+ dilemma of permitting it to take effect, or of risking the
+ displeasure of the nation by an opposition to the sense of the
+ legislative body. Nor is it probable, that he would ultimately
+ venture to exert his prerogatives, but in a case of manifest
+ propriety, or extreme necessity. All well-informed men in that
+ kingdom will accede to the justness of this remark. A very
+ considerable period has elapsed since the negative of the crown has
+ been exercised.
+If a magistrate so powerful and so well fortified as a British
+ monarch, would have scruples about the exercise of the power under
+ consideration, how much greater caution may be reasonably expected
+ in a President of the United States, clothed for the short period of
+ four years with the executive authority of a government wholly and
+ purely republican?
+It is evident that there would be greater danger of his not
+ using his power when necessary, than of his using it too often, or
+ too much. An argument, indeed, against its expediency, has been
+ drawn from this very source. It has been represented, on this
+ account, as a power odious in appearance, useless in practice. But
+ it will not follow, that because it might be rarely exercised, it
+ would never be exercised. In the case for which it is chiefly
+ designed, that of an immediate attack upon the constitutional rights
+ of the Executive, or in a case in which the public good was
+ evidently and palpably sacrificed, a man of tolerable firmness would
+ avail himself of his constitutional means of defense, and would
+ listen to the admonitions of duty and responsibility. In the former
+ supposition, his fortitude would be stimulated by his immediate
+ interest in the power of his office; in the latter, by the
+ probability of the sanction of his constituents, who, though they
+ would naturally incline to the legislative body in a doubtful case,
+ would hardly suffer their partiality to delude them in a very plain
+ case. I speak now with an eye to a magistrate possessing only a
+ common share of firmness. There are men who, under any
+ circumstances, will have the courage to do their duty at every
+ hazard.
+But the convention have pursued a mean in this business, which
+ will both facilitate the exercise of the power vested in this
+ respect in the executive magistrate, and make its efficacy to depend
+ on the sense of a considerable part of the legislative body.
+ Instead of an absolute negative, it is proposed to give the
+ Executive the qualified negative already described. This is a power
+ which would be much more readily exercised than the other. A man
+ who might be afraid to defeat a law by his single VETO, might not
+ scruple to return it for reconsideration; subject to being finally
+ rejected only in the event of more than one third of each house
+ concurring in the sufficiency of his objections. He would be
+ encouraged by the reflection, that if his opposition should prevail,
+ it would embark in it a very respectable proportion of the
+ legislative body, whose influence would be united with his in
+ supporting the propriety of his conduct in the public opinion. A
+ direct and categorical negative has something in the appearance of
+ it more harsh, and more apt to irritate, than the mere suggestion of
+ argumentative objections to be approved or disapproved by those to
+ whom they are addressed. In proportion as it would be less apt to
+ offend, it would be more apt to be exercised; and for this very
+ reason, it may in practice be found more effectual. It is to be
+ hoped that it will not often happen that improper views will govern
+ so large a proportion as two thirds of both branches of the
+ legislature at the same time; and this, too, in spite of the
+ counterposing weight of the Executive. It is at any rate far less
+ probable that this should be the case, than that such views should
+ taint the resolutions and conduct of a bare majority. A power of
+ this nature in the Executive, will often have a silent and
+ unperceived, though forcible, operation. When men, engaged in
+ unjustifiable pursuits, are aware that obstructions may come from a
+ quarter which they cannot control, they will often be restrained by
+ the bare apprehension of opposition, from doing what they would with
+ eagerness rush into, if no such external impediments were to be
+ feared.
+This qualified negative, as has been elsewhere remarked, is in
+ this State vested in a council, consisting of the governor, with the
+ chancellor and judges of the Supreme Court, or any two of them. It
+ has been freely employed upon a variety of occasions, and frequently
+ with success. And its utility has become so apparent, that persons
+ who, in compiling the Constitution, were violent opposers of it,
+ have from experience become its declared admirers.1
+I have in another place remarked, that the convention, in the
+ formation of this part of their plan, had departed from the model of
+ the constitution of this State, in favor of that of Massachusetts.
+ Two strong reasons may be imagined for this preference. One is
+ that the judges, who are to be the interpreters of the law, might
+ receive an improper bias, from having given a previous opinion in
+ their revisionary capacities; the other is that by being often
+ associated with the Executive, they might be induced to embark too
+ far in the political views of that magistrate, and thus a dangerous
+ combination might by degrees be cemented between the executive and
+ judiciary departments. It is impossible to keep the judges too
+ distinct from every other avocation than that of expounding the laws.
+ It is peculiarly dangerous to place them in a situation to be
+ either corrupted or influenced by the Executive.
+PUBLIUS.
+1 Mr. Abraham Yates, a warm opponent of the plan of the
+ convention is of this number.
+
+
+FEDERALIST No. 74
+
+The Command of the Military and Naval Forces, and the Pardoning
+ Power of the Executive
+From the New York Packet.
+Tuesday, March 25, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE President of the United States is to be ``commander-in-chief
+ of the army and navy of the United States, and of the militia of the
+ several States WHEN CALLED INTO THE ACTUAL SERVICE of the United
+ States.'' The propriety of this provision is so evident in itself,
+ and it is, at the same time, so consonant to the precedents of the
+ State constitutions in general, that little need be said to explain
+ or enforce it. Even those of them which have, in other respects,
+ coupled the chief magistrate with a council, have for the most part
+ concentrated the military authority in him alone. Of all the cares
+ or concerns of government, the direction of war most peculiarly
+ demands those qualities which distinguish the exercise of power by a
+ single hand. The direction of war implies the direction of the
+ common strength; and the power of directing and employing the
+ common strength, forms a usual and essential part in the definition
+ of the executive authority.
+``The President may require the opinion, in writing, of the
+ principal officer in each of the executive departments, upon any
+ subject relating to the duties of their respective officers.'' This
+ I consider as a mere redundancy in the plan, as the right for which
+ it provides would result of itself from the office.
+He is also to be authorized to grant ``reprieves and pardons for
+ offenses against the United States, EXCEPT IN CASES OF
+ IMPEACHMENT.'' Humanity and good policy conspire to dictate, that
+ the benign prerogative of pardoning should be as little as possible
+ fettered or embarrassed. The criminal code of every country
+ partakes so much of necessary severity, that without an easy access
+ to exceptions in favor of unfortunate guilt, justice would wear a
+ countenance too sanguinary and cruel. As the sense of
+ responsibility is always strongest, in proportion as it is
+ undivided, it may be inferred that a single man would be most ready
+ to attend to the force of those motives which might plead for a
+ mitigation of the rigor of the law, and least apt to yield to
+ considerations which were calculated to shelter a fit object of its
+ vengeance. The reflection that the fate of a fellow-creature
+ depended on his sole fiat, would naturally inspire
+ scrupulousness and caution; the dread of being accused of weakness
+ or connivance, would beget equal circumspection, though of a
+ different kind. On the other hand, as men generally derive
+ confidence from their numbers, they might often encourage each other
+ in an act of obduracy, and might be less sensible to the
+ apprehension of suspicion or censure for an injudicious or affected
+ clemency. On these accounts, one man appears to be a more eligible
+ dispenser of the mercy of government, than a body of men.
+The expediency of vesting the power of pardoning in the
+ President has, if I mistake not, been only contested in relation to
+ the crime of treason. This, it has been urged, ought to have
+ depended upon the assent of one, or both, of the branches of the
+ legislative body. I shall not deny that there are strong reasons to
+ be assigned for requiring in this particular the concurrence of that
+ body, or of a part of it. As treason is a crime levelled at the
+ immediate being of the society, when the laws have once ascertained
+ the guilt of the offender, there seems a fitness in referring the
+ expediency of an act of mercy towards him to the judgment of the
+ legislature. And this ought the rather to be the case, as the
+ supposition of the connivance of the Chief Magistrate ought not to
+ be entirely excluded. But there are also strong objections to such
+ a plan. It is not to be doubted, that a single man of prudence and
+ good sense is better fitted, in delicate conjunctures, to balance
+ the motives which may plead for and against the remission of the
+ punishment, than any numerous body whatever. It deserves particular
+ attention, that treason will often be connected with seditions which
+ embrace a large proportion of the community; as lately happened in
+ Massachusetts. In every such case, we might expect to see the
+ representation of the people tainted with the same spirit which had
+ given birth to the offense. And when parties were pretty equally
+ matched, the secret sympathy of the friends and favorers of the
+ condemned person, availing itself of the good-nature and weakness of
+ others, might frequently bestow impunity where the terror of an
+ example was necessary. On the other hand, when the sedition had
+ proceeded from causes which had inflamed the resentments of the
+ major party, they might often be found obstinate and inexorable,
+ when policy demanded a conduct of forbearance and clemency. But the
+ principal argument for reposing the power of pardoning in this case
+ to the Chief Magistrate is this: in seasons of insurrection or
+ rebellion, there are often critical moments, when a welltimed offer
+ of pardon to the insurgents or rebels may restore the tranquillity
+ of the commonwealth; and which, if suffered to pass unimproved, it
+ may never be possible afterwards to recall. The dilatory process of
+ convening the legislature, or one of its branches, for the purpose
+ of obtaining its sanction to the measure, would frequently be the
+ occasion of letting slip the golden opportunity. The loss of a
+ week, a day, an hour, may sometimes be fatal. If it should be
+ observed, that a discretionary power, with a view to such
+ contingencies, might be occasionally conferred upon the President,
+ it may be answered in the first place, that it is questionable,
+ whether, in a limited Constitution, that power could be delegated by
+ law; and in the second place, that it would generally be impolitic
+ beforehand to take any step which might hold out the prospect of
+ impunity. A proceeding of this kind, out of the usual course, would
+ be likely to be construed into an argument of timidity or of
+ weakness, and would have a tendency to embolden guilt.
+PUBLIUS.
+
+
+FEDERALIST No. 75
+The Treaty-Making Power of the Executive
+For the Independent Journal.
+
+HAMILTON
+
+To the People of the State of New York:
+THE President is to have power, ``by and with the advice and
+ consent of the Senate, to make treaties, provided two thirds of the
+ senators present concur.''
+Though this provision has been assailed, on different grounds,
+ with no small degree of vehemence, I scruple not to declare my firm
+ persuasion, that it is one of the best digested and most
+ unexceptionable parts of the plan. One ground of objection is the
+ trite topic of the intermixture of powers; some contending that the
+ President ought alone to possess the power of making treaties;
+ others, that it ought to have been exclusively deposited in the
+ Senate. Another source of objection is derived from the small
+ number of persons by whom a treaty may be made. Of those who
+ espouse this objection, a part are of opinion that the House of
+ Representatives ought to have been associated in the business, while
+ another part seem to think that nothing more was necessary than to
+ have substituted two thirds of ALL the members of the Senate, to two
+ thirds of the members PRESENT. As I flatter myself the observations
+ made in a preceding number upon this part of the plan must have
+ sufficed to place it, to a discerning eye, in a very favorable
+ light, I shall here content myself with offering only some
+ supplementary remarks, principally with a view to the objections
+ which have been just stated.
+With regard to the intermixture of powers, I shall rely upon the
+ explanations already given in other places, of the true sense of the
+ rule upon which that objection is founded; and shall take it for
+ granted, as an inference from them, that the union of the Executive
+ with the Senate, in the article of treaties, is no infringement of
+ that rule. I venture to add, that the particular nature of the
+ power of making treaties indicates a peculiar propriety in that
+ union. Though several writers on the subject of government place
+ that power in the class of executive authorities, yet this is
+ evidently an arbitrary disposition; for if we attend carefully to
+ its operation, it will be found to partake more of the legislative
+ than of the executive character, though it does not seem strictly to
+ fall within the definition of either of them. The essence of the
+ legislative authority is to enact laws, or, in other words, to
+ prescribe rules for the regulation of the society; while the
+ execution of the laws, and the employment of the common strength,
+ either for this purpose or for the common defense, seem to comprise
+ all the functions of the executive magistrate. The power of making
+ treaties is, plainly, neither the one nor the other. It relates
+ neither to the execution of the subsisting laws, nor to the enaction
+ of new ones; and still less to an exertion of the common strength.
+ Its objects are CONTRACTS with foreign nations, which have the
+ force of law, but derive it from the obligations of good faith.
+ They are not rules prescribed by the sovereign to the subject, but
+ agreements between sovereign and sovereign. The power in question
+ seems therefore to form a distinct department, and to belong,
+ properly, neither to the legislative nor to the executive. The
+ qualities elsewhere detailed as indispensable in the management of
+ foreign negotiations, point out the Executive as the most fit agent
+ in those transactions; while the vast importance of the trust, and
+ the operation of treaties as laws, plead strongly for the
+ participation of the whole or a portion of the legislative body in
+ the office of making them.
+However proper or safe it may be in governments where the
+ executive magistrate is an hereditary monarch, to commit to him the
+ entire power of making treaties, it would be utterly unsafe and
+ improper to intrust that power to an elective magistrate of four
+ years' duration. It has been remarked, upon another occasion, and
+ the remark is unquestionably just, that an hereditary monarch,
+ though often the oppressor of his people, has personally too much
+ stake in the government to be in any material danger of being
+ corrupted by foreign powers. But a man raised from the station of a
+ private citizen to the rank of chief magistrate, possessed of a
+ moderate or slender fortune, and looking forward to a period not
+ very remote when he may probably be obliged to return to the station
+ from which he was taken, might sometimes be under temptations to
+ sacrifice his duty to his interest, which it would require
+ superlative virtue to withstand. An avaricious man might be tempted
+ to betray the interests of the state to the acquisition of wealth.
+ An ambitious man might make his own aggrandizement, by the aid of a
+ foreign power, the price of his treachery to his constituents. The
+ history of human conduct does not warrant that exalted opinion of
+ human virtue which would make it wise in a nation to commit
+ interests of so delicate and momentous a kind, as those which
+ concern its intercourse with the rest of the world, to the sole
+ disposal of a magistrate created and circumstanced as would be a
+ President of the United States.
+To have intrusted the power of making treaties to the Senate
+ alone, would have been to relinquish the benefits of the
+ constitutional agency of the President in the conduct of foreign
+ negotiations. It is true that the Senate would, in that case, have
+ the option of employing him in this capacity, but they would also
+ have the option of letting it alone, and pique or cabal might induce
+ the latter rather than the former. Besides this, the ministerial
+ servant of the Senate could not be expected to enjoy the confidence
+ and respect of foreign powers in the same degree with the
+ constitutional representatives of the nation, and, of course, would
+ not be able to act with an equal degree of weight or efficacy.
+ While the Union would, from this cause, lose a considerable
+ advantage in the management of its external concerns, the people
+ would lose the additional security which would result from the
+ co-operation of the Executive. Though it would be imprudent to
+ confide in him solely so important a trust, yet it cannot be doubted
+ that his participation would materially add to the safety of the
+ society. It must indeed be clear to a demonstration that the joint
+ possession of the power in question, by the President and Senate,
+ would afford a greater prospect of security, than the separate
+ possession of it by either of them. And whoever has maturely
+ weighed the circumstances which must concur in the appointment of a
+ President, will be satisfied that the office will always bid fair to
+ be filled by men of such characters as to render their concurrence
+ in the formation of treaties peculiarly desirable, as well on the
+ score of wisdom, as on that of integrity.
+The remarks made in a former number, which have been alluded to
+ in another part of this paper, will apply with conclusive force
+ against the admission of the House of Representatives to a share in
+ the formation of treaties. The fluctuating and, taking its future
+ increase into the account, the multitudinous composition of that
+ body, forbid us to expect in it those qualities which are essential
+ to the proper execution of such a trust. Accurate and comprehensive
+ knowledge of foreign politics; a steady and systematic adherence to
+ the same views; a nice and uniform sensibility to national
+ character; decision, SECRECY, and despatch, are incompatible with
+ the genius of a body so variable and so numerous. The very
+ complication of the business, by introducing a necessity of the
+ concurrence of so many different bodies, would of itself afford a
+ solid objection. The greater frequency of the calls upon the House
+ of Representatives, and the greater length of time which it would
+ often be necessary to keep them together when convened, to obtain
+ their sanction in the progressive stages of a treaty, would be a
+ source of so great inconvenience and expense as alone ought to
+ condemn the project.
+The only objection which remains to be canvassed, is that which
+ would substitute the proportion of two thirds of all the members
+ composing the senatorial body, to that of two thirds of the members
+ PRESENT. It has been shown, under the second head of our inquiries,
+ that all provisions which require more than the majority of any body
+ to its resolutions, have a direct tendency to embarrass the
+ operations of the government, and an indirect one to subject the
+ sense of the majority to that of the minority. This consideration
+ seems sufficient to determine our opinion, that the convention have
+ gone as far in the endeavor to secure the advantage of numbers in
+ the formation of treaties as could have been reconciled either with
+ the activity of the public councils or with a reasonable regard to
+ the major sense of the community. If two thirds of the whole number
+ of members had been required, it would, in many cases, from the
+ non-attendance of a part, amount in practice to a necessity of
+ unanimity. And the history of every political establishment in
+ which this principle has prevailed, is a history of impotence,
+ perplexity, and disorder. Proofs of this position might be adduced
+ from the examples of the Roman Tribuneship, the Polish Diet, and the
+ States-General of the Netherlands, did not an example at home render
+ foreign precedents unnecessary.
+To require a fixed proportion of the whole body would not, in
+ all probability, contribute to the advantages of a numerous agency,
+ better then merely to require a proportion of the attending members.
+ The former, by making a determinate number at all times requisite
+ to a resolution, diminishes the motives to punctual attendance. The
+ latter, by making the capacity of the body to depend on a PROPORTION
+ which may be varied by the absence or presence of a single member,
+ has the contrary effect. And as, by promoting punctuality, it tends
+ to keep the body complete, there is great likelihood that its
+ resolutions would generally be dictated by as great a number in this
+ case as in the other; while there would be much fewer occasions of
+ delay. It ought not to be forgotten that, under the existing
+ Confederation, two members MAY, and usually DO, represent a State;
+ whence it happens that Congress, who now are solely invested with
+ ALL THE POWERS of the Union, rarely consist of a greater number of
+ persons than would compose the intended Senate. If we add to this,
+ that as the members vote by States, and that where there is only a
+ single member present from a State, his vote is lost, it will
+ justify a supposition that the active voices in the Senate, where
+ the members are to vote individually, would rarely fall short in
+ number of the active voices in the existing Congress. When, in
+ addition to these considerations, we take into view the co-operation
+ of the President, we shall not hesitate to infer that the people of
+ America would have greater security against an improper use of the
+ power of making treaties, under the new Constitution, than they now
+ enjoy under the Confederation. And when we proceed still one step
+ further, and look forward to the probable augmentation of the
+ Senate, by the erection of new States, we shall not only perceive
+ ample ground of confidence in the sufficiency of the members to
+ whose agency that power will be intrusted, but we shall probably be
+ led to conclude that a body more numerous than the Senate would be
+ likely to become, would be very little fit for the proper discharge
+ of the trust.
+PUBLIUS.
+
+
+FEDERALIST No. 76
+The Appointing Power of the Executive
+From the New York Packet.
+Tuesday, April 1, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+THE President is ``to NOMINATE, and, by and with the advice and
+ consent of the Senate, to appoint ambassadors, other public
+ ministers and consuls, judges of the Supreme Court, and all other
+ officers of the United States whose appointments are not otherwise
+ provided for in the Constitution. But the Congress may by law vest
+ the appointment of such inferior officers as they think proper, in
+ the President alone, or in the courts of law, or in the heads of
+ departments. The President shall have power to fill up ALL
+ VACANCIES which may happen DURING THE RECESS OF THE SENATE, by
+ granting commissions which shall EXPIRE at the end of their next
+ session.''
+It has been observed in a former paper, that ``the true test of
+ a good government is its aptitude and tendency to produce a good
+ administration.'' If the justness of this observation be admitted,
+ the mode of appointing the officers of the United States contained
+ in the foregoing clauses, must, when examined, be allowed to be
+ entitled to particular commendation. It is not easy to conceive a
+ plan better calculated than this to promote a judicious choice of
+ men for filling the offices of the Union; and it will not need
+ proof, that on this point must essentially depend the character of
+ its administration.
+It will be agreed on all hands, that the power of appointment,
+ in ordinary cases, ought to be modified in one of three ways. It
+ ought either to be vested in a single man, or in a SELECT assembly
+ of a moderate number; or in a single man, with the concurrence of
+ such an assembly. The exercise of it by the people at large will be
+ readily admitted to be impracticable; as waiving every other
+ consideration, it would leave them little time to do anything else.
+ When, therefore, mention is made in the subsequent reasonings of an
+ assembly or body of men, what is said must be understood to relate
+ to a select body or assembly, of the description already given. The
+ people collectively, from their number and from their dispersed
+ situation, cannot be regulated in their movements by that systematic
+ spirit of cabal and intrigue, which will be urged as the chief
+ objections to reposing the power in question in a body of men.
+Those who have themselves reflected upon the subject, or who
+ have attended to the observations made in other parts of these
+ papers, in relation to the appointment of the President, will, I
+ presume, agree to the position, that there would always be great
+ probability of having the place supplied by a man of abilities, at
+ least respectable. Premising this, I proceed to lay it down as a
+ rule, that one man of discernment is better fitted to analyze and
+ estimate the peculiar qualities adapted to particular offices, than
+ a body of men of equal or perhaps even of superior discernment.
+The sole and undivided responsibility of one man will naturally
+ beget a livelier sense of duty and a more exact regard to reputation.
+ He will, on this account, feel himself under stronger obligations,
+ and more interested to investigate with care the qualities requisite
+ to the stations to be filled, and to prefer with impartiality the
+ persons who may have the fairest pretensions to them. He will have
+ FEWER personal attachments to gratify, than a body of men who may
+ each be supposed to have an equal number; and will be so much the
+ less liable to be misled by the sentiments of friendship and of
+ affection. A single well-directed man, by a single understanding,
+ cannot be distracted and warped by that diversity of views,
+ feelings, and interests, which frequently distract and warp the
+ resolutions of a collective body. There is nothing so apt to
+ agitate the passions of mankind as personal considerations whether
+ they relate to ourselves or to others, who are to be the objects of
+ our choice or preference. Hence, in every exercise of the power of
+ appointing to offices, by an assembly of men, we must expect to see
+ a full display of all the private and party likings and dislikes,
+ partialities and antipathies, attachments and animosities, which are
+ felt by those who compose the assembly. The choice which may at any
+ time happen to be made under such circumstances, will of course be
+ the result either of a victory gained by one party over the other,
+ or of a compromise between the parties. In either case, the
+ intrinsic merit of the candidate will be too often out of sight. In
+ the first, the qualifications best adapted to uniting the suffrages
+ of the party, will be more considered than those which fit the
+ person for the station. In the last, the coalition will commonly
+ turn upon some interested equivalent: ``Give us the man we wish for
+ this office, and you shall have the one you wish for that.'' This
+ will be the usual condition of the bargain. And it will rarely
+ happen that the advancement of the public service will be the
+ primary object either of party victories or of party negotiations.
+The truth of the principles here advanced seems to have been
+ felt by the most intelligent of those who have found fault with the
+ provision made, in this respect, by the convention. They contend
+ that the President ought solely to have been authorized to make the
+ appointments under the federal government. But it is easy to show,
+ that every advantage to be expected from such an arrangement would,
+ in substance, be derived from the power of NOMINATION, which is
+ proposed to be conferred upon him; while several disadvantages
+ which might attend the absolute power of appointment in the hands of
+ that officer would be avoided. In the act of nomination, his
+ judgment alone would be exercised; and as it would be his sole duty
+ to point out the man who, with the approbation of the Senate, should
+ fill an office, his responsibility would be as complete as if he
+ were to make the final appointment. There can, in this view, be no
+ difference others, who are to be the objects of our choice or
+ preference. Hence, in every exercise of the power of appointing to
+ offices, by an assembly of men, we must expect to see a full display
+ of all the private and party likings and dislikes, partialities and
+ antipathies, attachments and animosities, which are felt by those
+ who compose the assembly. The choice which may at any time happen
+ to be made under such circumstances, will of course be the result
+ either of a victory gained by one party over the other, or of a
+ compromise between the parties. In either case, the intrinsic merit
+ of the candidate will be too often out of sight. In the first, the
+ qualifications best adapted to uniting the suffrages of the party,
+ will be more considered than those which fit the person for the
+ station. In the last, the coalition will commonly turn upon some
+ interested equivalent: ``Give us the man we wish for this office,
+ and you shall have the one you wish for that.'' This will be the
+ usual condition of the bargain. And it will rarely happen that the
+ advancement of the public service will be the primary object either
+ of party victories or of party negotiations.
+The truth of the principles here advanced seems to have been
+ felt by the most intelligent of those who have found fault with the
+ provision made, in this respect, by the convention. They contend
+ that the President ought solely to have been authorized to make the
+ appointments under the federal government. But it is easy to show,
+ that every advantage to be expected from such an arrangement would,
+ in substance, be derived from the power of NOMINATION, which is
+ proposed to be conferred upon him; while several disadvantages
+ which might attend the absolute power of appointment in the hands of
+ that officer would be avoided. In the act of nomination, his
+ judgment alone would be exercised; and as it would be his sole duty
+ to point out the man who, with the approbation of the Senate, should
+ fill an office, his responsibility would be as complete as if he
+ were to make the final appointment. There can, in this view, be no
+ difference between nominating and appointing. The same motives
+ which would influence a proper discharge of his duty in one case,
+ would exist in the other. And as no man could be appointed but on
+ his previous nomination, every man who might be appointed would be,
+ in fact, his choice.
+But might not his nomination be overruled? I grant it might,
+ yet this could only be to make place for another nomination by
+ himself. The person ultimately appointed must be the object of his
+ preference, though perhaps not in the first degree. It is also not
+ very probable that his nomination would often be overruled. The
+ Senate could not be tempted, by the preference they might feel to
+ another, to reject the one proposed; because they could not assure
+ themselves, that the person they might wish would be brought forward
+ by a second or by any subsequent nomination. They could not even be
+ certain, that a future nomination would present a candidate in any
+ degree more acceptable to them; and as their dissent might cast a
+ kind of stigma upon the individual rejected, and might have the
+ appearance of a reflection upon the judgment of the chief
+ magistrate, it is not likely that their sanction would often be
+ refused, where there were not special and strong reasons for the
+ refusal.
+To what purpose then require the co-operation of the Senate? I
+ answer, that the necessity of their concurrence would have a
+ powerful, though, in general, a silent operation. It would be an
+ excellent check upon a spirit of favoritism in the President, and
+ would tend greatly to prevent the appointment of unfit characters
+ from State prejudice, from family connection, from personal
+ attachment, or from a view to popularity. In addition to this, it
+ would be an efficacious source of stability in the administration.
+It will readily be comprehended, that a man who had himself the
+ sole disposition of offices, would be governed much more by his
+ private inclinations and interests, than when he was bound to submit
+ the propriety of his choice to the discussion and determination of a
+ different and independent body, and that body an entire branch of
+ the legislature. The possibility of rejection would be a strong
+ motive to care in proposing. The danger to his own reputation, and,
+ in the case of an elective magistrate, to his political existence,
+ from betraying a spirit of favoritism, or an unbecoming pursuit of
+ popularity, to the observation of a body whose opinion would have
+ great weight in forming that of the public, could not fail to
+ operate as a barrier to the one and to the other. He would be both
+ ashamed and afraid to bring forward, for the most distinguished or
+ lucrative stations, candidates who had no other merit than that of
+ coming from the same State to which he particularly belonged, or of
+ being in some way or other personally allied to him, or of
+ possessing the necessary insignificance and pliancy to render them
+ the obsequious instruments of his pleasure.
+To this reasoning it has been objected that the President, by
+ the influence of the power of nomination, may secure the
+ complaisance of the Senate to his views. This supposition of
+ universal venalty in human nature is little less an error in
+ political reasoning, than the supposition of universal rectitude.
+ The institution of delegated power implies, that there is a portion
+ of virtue and honor among mankind, which may be a reasonable
+ foundation of confidence; and experience justifies the theory. It
+ has been found to exist in the most corrupt periods of the most
+ corrupt governments. The venalty of the British House of Commons
+ has been long a topic of accusation against that body, in the
+ country to which they belong as well as in this; and it cannot be
+ doubted that the charge is, to a considerable extent, well founded.
+ But it is as little to be doubted, that there is always a large
+ proportion of the body, which consists of independent and
+ public-spirited men, who have an influential weight in the councils
+ of the nation. Hence it is (the present reign not excepted) that
+ the sense of that body is often seen to control the inclinations of
+ the monarch, both with regard to men and to measures. Though it
+ might therefore be allowable to suppose that the Executive might
+ occasionally influence some individuals in the Senate, yet the
+ supposition, that he could in general purchase the integrity of the
+ whole body, would be forced and improbable. A man disposed to view
+ human nature as it is, without either flattering its virtues or
+ exaggerating its vices, will see sufficient ground of confidence in
+ the probity of the Senate, to rest satisfied, not only that it will
+ be impracticable to the Executive to corrupt or seduce a majority of
+ its members, but that the necessity of its co-operation, in the
+ business of appointments, will be a considerable and salutary
+ restraint upon the conduct of that magistrate. Nor is the integrity
+ of the Senate the only reliance. The Constitution has provided some
+ important guards against the danger of executive influence upon the
+ legislative body: it declares that ``No senator or representative
+ shall during the time FOR WHICH HE WAS ELECTED, be appointed to any
+ civil office under the United States, which shall have been created,
+ or the emoluments whereof shall have been increased, during such
+ time; and no person, holding any office under the United States,
+ shall be a member of either house during his continuance in
+ office.''
+PUBLIUS.
+
+
+FEDERALIST No. 77
+
+The Appointing Power Continued and Other Powers of the Executive
+ Considered
+From the New York Packet.
+Friday, April 4, 1788.
+
+HAMILTON
+
+To the People of the State of New York:
+IT HAS been mentioned as one of the advantages to be expected
+ from the co-operation of the Senate, in the business of
+ appointments, that it would contribute to the stability of the
+ administration. The consent of that body would be necessary to
+ displace as well as to appoint. A change of the Chief Magistrate,
+ therefore, would not occasion so violent or so general a revolution
+ in the officers of the government as might be expected, if he were
+ the sole disposer of offices. Where a man in any station had given
+ satisfactory evidence of his fitness for it, a new President would
+ be restrained from attempting a change in favor of a person more
+ agreeable to him, by the apprehension that a discountenance of the
+ Senate might frustrate the attempt, and bring some degree of
+ discredit upon himself. Those who can best estimate the value of a
+ steady administration, will be most disposed to prize a provision
+ which connects the official existence of public men with the
+ approbation or disapprobation of that body which, from the greater
+ permanency of its own composition, will in all probability be less
+ subject to inconstancy than any other member of the government.
+To this union of the Senate with the President, in the article
+ of appointments, it has in some cases been suggested that it would
+ serve to give the President an undue influence over the Senate, and
+ in others that it would have an opposite tendency, a strong proof
+ that neither suggestion is true.
+To state the first in its proper form, is to refute it. It
+ amounts to this: the President would have an improper INFLUENCE
+ OVER the Senate, because the Senate would have the power of
+ RESTRAINING him. This is an absurdity in terms. It cannot admit of
+ a doubt that the entire power of appointment would enable him much
+ more effectually to establish a dangerous empire over that body,
+ than a mere power of nomination subject to their control.
+Let us take a view of the converse of the proposition: ``the
+ Senate would influence the Executive.'' As I have had occasion to
+ remark in several other instances, the indistinctness of the
+ objection forbids a precise answer. In what manner is this
+ influence to be exerted? In relation to what objects? The power of
+ influencing a person, in the sense in which it is here used, must
+ imply a power of conferring a benefit upon him. How could the
+ Senate confer a benefit upon the President by the manner of
+ employing their right of negative upon his nominations? If it be
+ said they might sometimes gratify him by an acquiescence in a
+ favorite choice, when public motives might dictate a different
+ conduct, I answer, that the instances in which the President could
+ be personally interested in the result, would be too few to admit of
+ his being materially affected by the compliances of the Senate. The
+ POWER which can ORIGINATE the disposition of honors and emoluments,
+ is more likely to attract than to be attracted by the POWER which
+ can merely obstruct their course. If by influencing the President
+ be meant RESTRAINING him, this is precisely what must have been
+ intended. And it has been shown that the restraint would be
+ salutary, at the same time that it would not be such as to destroy a
+ single advantage to be looked for from the uncontrolled agency of
+ that Magistrate. The right of nomination would produce all the good
+ of that of appointment, and would in a great measure avoid its evils.
+ Upon a comparison of the plan for the appointment of the
+ officers of the proposed government with that which is established
+ by the constitution of this State, a decided preference must be
+ given to the former. In that plan the power of nomination is
+ unequivocally vested in the Executive. And as there would be a
+ necessity for submitting each nomination to the judgment of an
+ entire branch of the legislature, the circumstances attending an
+ appointment, from the mode of conducting it, would naturally become
+ matters of notoriety; and the public would be at no loss to
+ determine what part had been performed by the different actors. The
+ blame of a bad nomination would fall upon the President singly and
+ absolutely. The censure of rejecting a good one would lie entirely
+ at the door of the Senate; aggravated by the consideration of their
+ having counteracted the good intentions of the Executive. If an ill
+ appointment should be made, the Executive for nominating, and the
+ Senate for approving, would participate, though in different
+ degrees, in the opprobrium and disgrace.
+The reverse of all this characterizes the manner of appointment
+ in this State. The council of appointment consists of from three to
+ five persons, of whom the governor is always one. This small body,
+ shut up in a private apartment, impenetrable to the public eye,
+ proceed to the execution of the trust committed to them. It is
+ known that the governor claims the right of nomination, upon the
+ strength of some ambiguous expressions in the constitution; but it
+ is not known to what extent, or in what manner he exercises it; nor
+ upon what occasions he is contradicted or opposed. The censure of a
+ bad appointment, on account of the uncertainty of its author, and
+ for want of a determinate object, has neither poignancy nor duration.
+ And while an unbounded field for cabal and intrigue lies open, all
+ idea of responsibility is lost. The most that the public can know,
+ is that the governor claims the right of nomination; that TWO out
+ of the inconsiderable number of FOUR men can too often be managed
+ without much difficulty; that if some of the members of a
+ particular council should happen to be of an uncomplying character,
+ it is frequently not impossible to get rid of their opposition by
+ regulating the times of meeting in such a manner as to render their
+ attendance inconvenient; and that from whatever cause it may
+ proceed, a great number of very improper appointments are from time
+ to time made. Whether a governor of this State avails himself of
+ the ascendant he must necessarily have, in this delicate and
+ important part of the administration, to prefer to offices men who
+ are best qualified for them, or whether he prostitutes that
+ advantage to the advancement of persons whose chief merit is their
+ implicit devotion to his will, and to the support of a despicable
+ and dangerous system of personal influence, are questions which,
+ unfortunately for the community, can only be the subjects of
+ speculation and conjecture.
+Every mere council of appointment, however constituted, will be
+ a conclave, in which cabal and intrigue will have their full scope.
+ Their number, without an unwarrantable increase of expense, cannot
+ be large enough to preclude a facility of combination. And as each
+ member will have his friends and connections to provide for, the
+ desire of mutual gratification will beget a scandalous bartering of
+ votes and bargaining for places. The private attachments of one man
+ might easily be satisfied; but to satisfy the private attachments
+ of a dozen, or of twenty men, would occasion a monopoly of all the
+ principal employments of the government in a few families, and would
+ lead more directly to an aristocracy or an oligarchy than any
+ measure that could be contrived. If, to avoid an accumulation of
+ offices, there was to be a frequent change in the persons who were
+ to compose the council, this would involve the mischiefs of a
+ mutable administration in their full extent. Such a council would
+ also be more liable to executive influence than the Senate, because
+ they would be fewer in number, and would act less immediately under
+ the public inspection. Such a council, in fine, as a substitute for
+ the plan of the convention, would be productive of an increase of
+ expense, a multiplication of the evils which spring from favoritism
+ and intrigue in the distribution of public honors, a decrease of
+ stability in the administration of the government, and a diminution
+ of the security against an undue influence of the Executive. And
+ yet such a council has been warmly contended for as an essential
+ amendment in the proposed Constitution.
+I could not with propriety conclude my observations on the
+ subject of appointments without taking notice of a scheme for which
+ there have appeared some, though but few advocates; I mean that of
+ uniting the House of Representatives in the power of making them. I
+ shall, however, do little more than mention it, as I cannot imagine
+ that it is likely to gain the countenance of any considerable part
+ of the community. A body so fluctuating and at the same time so
+ numerous, can never be deemed proper for the exercise of that power.
+ Its unfitness will appear manifest to all, when it is recollected
+ that in half a century it may consist of three or four hundred
+ persons. All the advantages of the stability, both of the Executive
+ and of the Senate, would be defeated by this union, and infinite
+ delays and embarrassments would be occasioned. The example of most
+ of the States in their local constitutions encourages us to
+ reprobate the idea.
+The only remaining powers of the Executive are comprehended in
+ giving information to Congress of the state of the Union; in
+ recommending to their consideration such measures as he shall judge
+ expedient; in convening them, or either branch, upon extraordinary
+ occasions; in adjourning them when they cannot themselves agree
+ upon the time of adjournment; in receiving ambassadors and other
+ public ministers; in faithfully executing the laws; and in
+ commissioning all the officers of the United States.
+Except some cavils about the power of convening EITHER house of
+ the legislature, and that of receiving ambassadors, no objection has
+ been made to this class of authorities; nor could they possibly
+ admit of any. It required, indeed, an insatiable avidity for
+ censure to invent exceptions to the parts which have been excepted
+ to. In regard to the power of convening either house of the
+ legislature, I shall barely remark, that in respect to the Senate at
+ least, we can readily discover a good reason for it. AS this body
+ has a concurrent power with the Executive in the article of
+ treaties, it might often be necessary to call it together with a
+ view to this object, when it would be unnecessary and improper to
+ convene the House of Representatives. As to the reception of
+ ambassadors, what I have said in a former paper will furnish a
+ sufficient answer.
+We have now completed a survey of the structure and powers of
+ the executive department, which, I have endeavored to show,
+ combines, as far as republican principles will admit, all the
+ requisites to energy. The remaining inquiry is: Does it also
+ combine the requisites to safety, in a republican sense, a due
+ dependence on the people, a due responsibility? The answer to this
+ question has been anticipated in the investigation of its other
+ characteristics, and is satisfactorily deducible from these
+ circumstances; from the election of the President once in four
+ years by persons immediately chosen by the people for that purpose;
+ and from his being at all times liable to impeachment, trial,
+ dismission from office, incapacity to serve in any other, and to
+ forfeiture of life and estate by subsequent prosecution in the
+ common course of law. But these precautions, great as they are, are
+ not the only ones which the plan of the convention has provided in
+ favor of the public security. In the only instances in which the
+ abuse of the executive authority was materially to be feared, the
+ Chief Magistrate of the United States would, by that plan, be
+ subjected to the control of a branch of the legislative body. What
+ more could be desired by an enlightened and reasonable people?
+PUBLIUS.
+
+
+FEDERALIST No. 78
+
+The Judiciary Department
+From McLEAN'S Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+WE PROCEED now to an examination of the judiciary department of
+ the proposed government.
+In unfolding the defects of the existing Confederation, the
+ utility and necessity of a federal judicature have been clearly
+ pointed out. It is the less necessary to recapitulate the
+ considerations there urged, as the propriety of the institution in
+ the abstract is not disputed; the only questions which have been
+ raised being relative to the manner of constituting it, and to its
+ extent. To these points, therefore, our observations shall be
+ confined.
+The manner of constituting it seems to embrace these several
+ objects: 1st. The mode of appointing the judges. 2d. The tenure by
+ which they are to hold their places. 3d. The partition of the
+ judiciary authority between different courts, and their relations to
+ each other.
+First. As to the mode of appointing the judges; this is
+ the same with that of appointing the officers of the Union in
+ general, and has been so fully discussed in the two last numbers,
+ that nothing can be said here which would not be useless repetition.
+Second. As to the tenure by which the judges are to hold
+ their places; this chiefly concerns their duration in office; the
+ provisions for their support; the precautions for their
+ responsibility.
+According to the plan of the convention, all judges who may be
+ appointed by the United States are to hold their offices DURING GOOD
+ BEHAVIOR; which is conformable to the most approved of the State
+ constitutions and among the rest, to that of this State. Its
+ propriety having been drawn into question by the adversaries of that
+ plan, is no light symptom of the rage for objection, which disorders
+ their imaginations and judgments. The standard of good behavior for
+ the continuance in office of the judicial magistracy, is certainly
+ one of the most valuable of the modern improvements in the practice
+ of government. In a monarchy it is an excellent barrier to the
+ despotism of the prince; in a republic it is a no less excellent
+ barrier to the encroachments and oppressions of the representative
+ body. And it is the best expedient which can be devised in any
+ government, to secure a steady, upright, and impartial
+ administration of the laws.
+Whoever attentively considers the different departments of power
+ must perceive, that, in a government in which they are separated
+ from each other, the judiciary, from the nature of its functions,
+ will always be the least dangerous to the political rights of the
+ Constitution; because it will be least in a capacity to annoy or
+ injure them. The Executive not only dispenses the honors, but holds
+ the sword of the community. The legislature not only commands the
+ purse, but prescribes the rules by which the duties and rights of
+ every citizen are to be regulated. The judiciary, on the contrary,
+ has no influence over either the sword or the purse; no direction
+ either of the strength or of the wealth of the society; and can
+ take no active resolution whatever. It may truly be said to have
+ neither FORCE nor WILL, but merely judgment; and must ultimately
+ depend upon the aid of the executive arm even for the efficacy of
+ its judgments.
+This simple view of the matter suggests several important
+ consequences. It proves incontestably, that the judiciary is beyond
+ comparison the weakest of the three departments of power1; that
+ it can never attack with success either of the other two; and that
+ all possible care is requisite to enable it to defend itself against
+ their attacks. It equally proves, that though individual oppression
+ may now and then proceed from the courts of justice, the general
+ liberty of the people can never be endangered from that quarter; I
+ mean so long as the judiciary remains truly distinct from both the
+ legislature and the Executive. For I agree, that ``there is no
+ liberty, if the power of judging be not separated from the
+ legislative and executive powers.''2 And it proves, in the last
+ place, that as liberty can have nothing to fear from the judiciary
+ alone, but would have every thing to fear from its union with either
+ of the other departments; that as all the effects of such a union
+ must ensue from a dependence of the former on the latter,
+ notwithstanding a nominal and apparent separation; that as, from
+ the natural feebleness of the judiciary, it is in continual jeopardy
+ of being overpowered, awed, or influenced by its co-ordinate
+ branches; and that as nothing can contribute so much to its
+ firmness and independence as permanency in office, this quality may
+ therefore be justly regarded as an indispensable ingredient in its
+ constitution, and, in a great measure, as the citadel of the public
+ justice and the public security.
+The complete independence of the courts of justice is peculiarly
+ essential in a limited Constitution. By a limited Constitution, I
+ understand one which contains certain specified exceptions to the
+ legislative authority; such, for instance, as that it shall pass no
+ bills of attainder, no ex-post-facto laws, and the like.
+ Limitations of this kind can be preserved in practice no other way
+ than through the medium of courts of justice, whose duty it must be
+ to declare all acts contrary to the manifest tenor of the
+ Constitution void. Without this, all the reservations of particular
+ rights or privileges would amount to nothing.
+Some perplexity respecting the rights of the courts to pronounce
+ legislative acts void, because contrary to the Constitution, has
+ arisen from an imagination that the doctrine would imply a
+ superiority of the judiciary to the legislative power. It is urged
+ that the authority which can declare the acts of another void, must
+ necessarily be superior to the one whose acts may be declared void.
+ As this doctrine is of great importance in all the American
+ constitutions, a brief discussion of the ground on which it rests
+ cannot be unacceptable.
+There is no position which depends on clearer principles, than
+ that every act of a delegated authority, contrary to the tenor of
+ the commission under which it is exercised, is void. No legislative
+ act, therefore, contrary to the Constitution, can be valid. To deny
+ this, would be to affirm, that the deputy is greater than his
+ principal; that the servant is above his master; that the
+ representatives of the people are superior to the people themselves;
+ that men acting by virtue of powers, may do not only what their
+ powers do not authorize, but what they forbid.
+If it be said that the legislative body are themselves the
+ constitutional judges of their own powers, and that the construction
+ they put upon them is conclusive upon the other departments, it may
+ be answered, that this cannot be the natural presumption, where it
+ is not to be collected from any particular provisions in the
+ Constitution. It is not otherwise to be supposed, that the
+ Constitution could intend to enable the representatives of the
+ people to substitute their WILL to that of their constituents. It
+ is far more rational to suppose, that the courts were designed to be
+ an intermediate body between the people and the legislature, in
+ order, among other things, to keep the latter within the limits
+ assigned to their authority. The interpretation of the laws is the
+ proper and peculiar province of the courts. A constitution is, in
+ fact, and must be regarded by the judges, as a fundamental law. It
+ therefore belongs to them to ascertain its meaning, as well as the
+ meaning of any particular act proceeding from the legislative body.
+ If there should happen to be an irreconcilable variance between the
+ two, that which has the superior obligation and validity ought, of
+ course, to be preferred; or, in other words, the Constitution ought
+ to be preferred to the statute, the intention of the people to the
+ intention of their agents.
+Nor does this conclusion by any means suppose a superiority of
+ the judicial to the legislative power. It only supposes that the
+ power of the people is superior to both; and that where the will of
+ the legislature, declared in its statutes, stands in opposition to
+ that of the people, declared in the Constitution, the judges ought
+ to be governed by the latter rather than the former. They ought to
+ regulate their decisions by the fundamental laws, rather than by
+ those which are not fundamental.
+This exercise of judicial discretion, in determining between two
+ contradictory laws, is exemplified in a familiar instance. It not
+ uncommonly happens, that there are two statutes existing at one
+ time, clashing in whole or in part with each other, and neither of
+ them containing any repealing clause or expression. In such a case,
+ it is the province of the courts to liquidate and fix their meaning
+ and operation. So far as they can, by any fair construction, be
+ reconciled to each other, reason and law conspire to dictate that
+ this should be done; where this is impracticable, it becomes a
+ matter of necessity to give effect to one, in exclusion of the other.
+ The rule which has obtained in the courts for determining their
+ relative validity is, that the last in order of time shall be
+ preferred to the first. But this is a mere rule of construction,
+ not derived from any positive law, but from the nature and reason of
+ the thing. It is a rule not enjoined upon the courts by legislative
+ provision, but adopted by themselves, as consonant to truth and
+ propriety, for the direction of their conduct as interpreters of the
+ law. They thought it reasonable, that between the interfering acts
+ of an EQUAL authority, that which was the last indication of its
+ will should have the preference.
+But in regard to the interfering acts of a superior and
+ subordinate authority, of an original and derivative power, the
+ nature and reason of the thing indicate the converse of that rule as
+ proper to be followed. They teach us that the prior act of a
+ superior ought to be preferred to the subsequent act of an inferior
+ and subordinate authority; and that accordingly, whenever a
+ particular statute contravenes the Constitution, it will be the duty
+ of the judicial tribunals to adhere to the latter and disregard the
+ former.
+It can be of no weight to say that the courts, on the pretense
+ of a repugnancy, may substitute their own pleasure to the
+ constitutional intentions of the legislature. This might as well
+ happen in the case of two contradictory statutes; or it might as
+ well happen in every adjudication upon any single statute. The
+ courts must declare the sense of the law; and if they should be
+ disposed to exercise WILL instead of JUDGMENT, the consequence would
+ equally be the substitution of their pleasure to that of the
+ legislative body. The observation, if it prove any thing, would
+ prove that there ought to be no judges distinct from that body.
+If, then, the courts of justice are to be considered as the
+ bulwarks of a limited Constitution against legislative
+ encroachments, this consideration will afford a strong argument for
+ the permanent tenure of judicial offices, since nothing will
+ contribute so much as this to that independent spirit in the judges
+ which must be essential to the faithful performance of so arduous a
+ duty.
+This independence of the judges is equally requisite to guard
+ the Constitution and the rights of individuals from the effects of
+ those ill humors, which the arts of designing men, or the influence
+ of particular conjunctures, sometimes disseminate among the people
+ themselves, and which, though they speedily give place to better
+ information, and more deliberate reflection, have a tendency, in the
+ meantime, to occasion dangerous innovations in the government, and
+ serious oppressions of the minor party in the community. Though I
+ trust the friends of the proposed Constitution will never concur
+ with its enemies,3 in questioning that fundamental principle of
+ republican government, which admits the right of the people to alter
+ or abolish the established Constitution, whenever they find it
+ inconsistent with their happiness, yet it is not to be inferred from
+ this principle, that the representatives of the people, whenever a
+ momentary inclination happens to lay hold of a majority of their
+ constituents, incompatible with the provisions in the existing
+ Constitution, would, on that account, be justifiable in a violation
+ of those provisions; or that the courts would be under a greater
+ obligation to connive at infractions in this shape, than when they
+ had proceeded wholly from the cabals of the representative body.
+ Until the people have, by some solemn and authoritative act,
+ annulled or changed the established form, it is binding upon
+ themselves collectively, as well as individually; and no
+ presumption, or even knowledge, of their sentiments, can warrant
+ their representatives in a departure from it, prior to such an act.
+ But it is easy to see, that it would require an uncommon portion of
+ fortitude in the judges to do their duty as faithful guardians of
+ the Constitution, where legislative invasions of it had been
+ instigated by the major voice of the community.
+But it is not with a view to infractions of the Constitution
+ only, that the independence of the judges may be an essential
+ safeguard against the effects of occasional ill humors in the
+ society. These sometimes extend no farther than to the injury of
+ the private rights of particular classes of citizens, by unjust and
+ partial laws. Here also the firmness of the judicial magistracy is
+ of vast importance in mitigating the severity and confining the
+ operation of such laws. It not only serves to moderate the
+ immediate mischiefs of those which may have been passed, but it
+ operates as a check upon the legislative body in passing them; who,
+ perceiving that obstacles to the success of iniquitous intention are
+ to be expected from the scruples of the courts, are in a manner
+ compelled, by the very motives of the injustice they meditate, to
+ qualify their attempts. This is a circumstance calculated to have
+ more influence upon the character of our governments, than but few
+ may be aware of. The benefits of the integrity and moderation of
+ the judiciary have already been felt in more States than one; and
+ though they may have displeased those whose sinister expectations
+ they may have disappointed, they must have commanded the esteem and
+ applause of all the virtuous and disinterested. Considerate men, of
+ every description, ought to prize whatever will tend to beget or
+ fortify that temper in the courts: as no man can be sure that he
+ may not be to-morrow the victim of a spirit of injustice, by which
+ he may be a gainer to-day. And every man must now feel, that the
+ inevitable tendency of such a spirit is to sap the foundations of
+ public and private confidence, and to introduce in its stead
+ universal distrust and distress.
+That inflexible and uniform adherence to the rights of the
+ Constitution, and of individuals, which we perceive to be
+ indispensable in the courts of justice, can certainly not be
+ expected from judges who hold their offices by a temporary
+ commission. Periodical appointments, however regulated, or by
+ whomsoever made, would, in some way or other, be fatal to their
+ necessary independence. If the power of making them was committed
+ either to the Executive or legislature, there would be danger of an
+ improper complaisance to the branch which possessed it; if to both,
+ there would be an unwillingness to hazard the displeasure of either;
+ if to the people, or to persons chosen by them for the special
+ purpose, there would be too great a disposition to consult
+ popularity, to justify a reliance that nothing would be consulted
+ but the Constitution and the laws.
+There is yet a further and a weightier reason for the permanency
+ of the judicial offices, which is deducible from the nature of the
+ qualifications they require. It has been frequently remarked, with
+ great propriety, that a voluminous code of laws is one of the
+ inconveniences necessarily connected with the advantages of a free
+ government. To avoid an arbitrary discretion in the courts, it is
+ indispensable that they should be bound down by strict rules and
+ precedents, which serve to define and point out their duty in every
+ particular case that comes before them; and it will readily be
+ conceived from the variety of controversies which grow out of the
+ folly and wickedness of mankind, that the records of those
+ precedents must unavoidably swell to a very considerable bulk, and
+ must demand long and laborious study to acquire a competent
+ knowledge of them. Hence it is, that there can be but few men in
+ the society who will have sufficient skill in the laws to qualify
+ them for the stations of judges. And making the proper deductions
+ for the ordinary depravity of human nature, the number must be still
+ smaller of those who unite the requisite integrity with the
+ requisite knowledge. These considerations apprise us, that the
+ government can have no great option between fit character; and that
+ a temporary duration in office, which would naturally discourage
+ such characters from quitting a lucrative line of practice to accept
+ a seat on the bench, would have a tendency to throw the
+ administration of justice into hands less able, and less well
+ qualified, to conduct it with utility and dignity. In the present
+ circumstances of this country, and in those in which it is likely to
+ be for a long time to come, the disadvantages on this score would be
+ greater than they may at first sight appear; but it must be
+ confessed, that they are far inferior to those which present
+ themselves under the other aspects of the subject.
+Upon the whole, there can be no room to doubt that the
+ convention acted wisely in copying from the models of those
+ constitutions which have established GOOD BEHAVIOR as the tenure of
+ their judicial offices, in point of duration; and that so far from
+ being blamable on this account, their plan would have been
+ inexcusably defective, if it had wanted this important feature of
+ good government. The experience of Great Britain affords an
+ illustrious comment on the excellence of the institution.
+PUBLIUS.
+1 The celebrated Montesquieu, speaking of them, says: ``Of the
+ three powers above mentioned, the judiciary is next to
+ nothing.'' ``Spirit of Laws.'' vol. i., page 186.
+2 Idem, page 181.
+3 Vide ``Protest of the Minority of the Convention of
+ Pennsylvania,'' Martin's Speech, etc.
+
+
+FEDERALIST No. 79
+
+The Judiciary Continued
+From MCLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+NEXT to permanency in office, nothing can contribute more to the
+ independence of the judges than a fixed provision for their support.
+ The remark made in relation to the President is equally applicable
+ here. In the general course of human nature, A POWER OVER A MAN's
+ SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope
+ to see realized in practice, the complete separation of the judicial
+ from the legislative power, in any system which leaves the former
+ dependent for pecuniary resources on the occasional grants of the
+ latter. The enlightened friends to good government in every State,
+ have seen cause to lament the want of precise and explicit
+ precautions in the State constitutions on this head. Some of these
+ indeed have declared that PERMANENT1 salaries should be
+ established for the judges; but the experiment has in some
+ instances shown that such expressions are not sufficiently definite
+ to preclude legislative evasions. Something still more positive and
+ unequivocal has been evinced to be requisite. The plan of the
+ convention accordingly has provided that the judges of the United
+ States ``shall at STATED TIMES receive for their services a
+ compensation which shall not be DIMINISHED during their continuance
+ in office.''
+This, all circumstances considered, is the most eligible
+ provision that could have been devised. It will readily be
+ understood that the fluctuations in the value of money and in the
+ state of society rendered a fixed rate of compensation in the
+ Constitution inadmissible. What might be extravagant to-day, might
+ in half a century become penurious and inadequate. It was therefore
+ necessary to leave it to the discretion of the legislature to vary
+ its provisions in conformity to the variations in circumstances, yet
+ under such restrictions as to put it out of the power of that body
+ to change the condition of the individual for the worse. A man may
+ then be sure of the ground upon which he stands, and can never be
+ deterred from his duty by the apprehension of being placed in a less
+ eligible situation. The clause which has been quoted combines both
+ advantages. The salaries of judicial officers may from time to time
+ be altered, as occasion shall require, yet so as never to lessen the
+ allowance with which any particular judge comes into office, in
+ respect to him. It will be observed that a difference has been made
+ by the convention between the compensation of the President and of
+ the judges, That of the former can neither be increased nor
+ diminished; that of the latter can only not be diminished. This
+ probably arose from the difference in the duration of the respective
+ offices. As the President is to be elected for no more than four
+ years, it can rarely happen that an adequate salary, fixed at the
+ commencement of that period, will not continue to be such to its end.
+ But with regard to the judges, who, if they behave properly, will
+ be secured in their places for life, it may well happen, especially
+ in the early stages of the government, that a stipend, which would
+ be very sufficient at their first appointment, would become too
+ small in the progress of their service.
+This provision for the support of the judges bears every mark of
+ prudence and efficacy; and it may be safely affirmed that, together
+ with the permanent tenure of their offices, it affords a better
+ prospect of their independence than is discoverable in the
+ constitutions of any of the States in regard to their own judges.
+The precautions for their responsibility are comprised in the
+ article respecting impeachments. They are liable to be impeached
+ for malconduct by the House of Representatives, and tried by the
+ Senate; and, if convicted, may be dismissed from office, and
+ disqualified for holding any other. This is the only provision on
+ the point which is consistent with the necessary independence of the
+ judicial character, and is the only one which we find in our own
+ Constitution in respect to our own judges.
+The want of a provision for removing the judges on account of
+ inability has been a subject of complaint. But all considerate men
+ will be sensible that such a provision would either not be practiced
+ upon or would be more liable to abuse than calculated to answer any
+ good purpose. The mensuration of the faculties of the mind has, I
+ believe, no place in the catalogue of known arts. An attempt to fix
+ the boundary between the regions of ability and inability, would
+ much oftener give scope to personal and party attachments and
+ enmities than advance the interests of justice or the public good.
+ The result, except in the case of insanity, must for the most part
+ be arbitrary; and insanity, without any formal or express
+ provision, may be safely pronounced to be a virtual disqualification.
+The constitution of New York, to avoid investigations that must
+ forever be vague and dangerous, has taken a particular age as the
+ criterion of inability. No man can be a judge beyond sixty. I
+ believe there are few at present who do not disapprove of this
+ provision. There is no station, in relation to which it is less
+ proper than to that of a judge. The deliberating and comparing
+ faculties generally preserve their strength much beyond that period
+ in men who survive it; and when, in addition to this circumstance,
+ we consider how few there are who outlive the season of intellectual
+ vigor, and how improbable it is that any considerable portion of the
+ bench, whether more or less numerous, should be in such a situation
+ at the same time, we shall be ready to conclude that limitations of
+ this sort have little to recommend them. In a republic, where
+ fortunes are not affluent, and pensions not expedient, the
+ dismission of men from stations in which they have served their
+ country long and usefully, on which they depend for subsistence, and
+ from which it will be too late to resort to any other occupation for
+ a livelihood, ought to have some better apology to humanity than is
+ to be found in the imaginary danger of a superannuated bench.
+PUBLIUS.
+1 Vide ``Constitution of Massachusetts,'' chapter 2, section
+ I, article 13.
+
+
+FEDERALIST No. 80
+The Powers of the Judiciary
+From McLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+To JUDGE with accuracy of the proper extent of the federal
+ judicature, it will be necessary to consider, in the first place,
+ what are its proper objects.
+It seems scarcely to admit of controversy, that the judicary
+ authority of the Union ought to extend to these several descriptions
+ of cases: 1st, to all those which arise out of the laws of the
+ United States, passed in pursuance of their just and constitutional
+ powers of legislation; 2d, to all those which concern the execution
+ of the provisions expressly contained in the articles of Union; 3d,
+ to all those in which the United States are a party; 4th, to all
+ those which involve the PEACE of the CONFEDERACY, whether they
+ relate to the intercourse between the United States and foreign
+ nations, or to that between the States themselves; 5th, to all
+ those which originate on the high seas, and are of admiralty or
+ maritime jurisdiction; and, lastly, to all those in which the State
+ tribunals cannot be supposed to be impartial and unbiased.
+The first point depends upon this obvious consideration, that
+ there ought always to be a constitutional method of giving efficacy
+ to constitutional provisions. What, for instance, would avail
+ restrictions on the authority of the State legislatures, without
+ some constitutional mode of enforcing the observance of them? The
+ States, by the plan of the convention, are prohibited from doing a
+ variety of things, some of which are incompatible with the interests
+ of the Union, and others with the principles of good government.
+ The imposition of duties on imported articles, and the emission of
+ paper money, are specimens of each kind. No man of sense will
+ believe, that such prohibitions would be scrupulously regarded,
+ without some effectual power in the government to restrain or
+ correct the infractions of them. This power must either be a direct
+ negative on the State laws, or an authority in the federal courts to
+ overrule such as might be in manifest contravention of the articles
+ of Union. There is no third course that I can imagine. The latter
+ appears to have been thought by the convention preferable to the
+ former, and, I presume, will be most agreeable to the States.
+As to the second point, it is impossible, by any argument or
+ comment, to make it clearer than it is in itself. If there are such
+ things as political axioms, the propriety of the judicial power of a
+ government being coextensive with its legislative, may be ranked
+ among the number. The mere necessity of uniformity in the
+ interpretation of the national laws, decides the question. Thirteen
+ independent courts of final jurisdiction over the same causes,
+ arising upon the same laws, is a hydra in government, from which
+ nothing but contradiction and confusion can proceed.
+Still less need be said in regard to the third point.
+ Controversies between the nation and its members or citizens, can
+ only be properly referred to the national tribunals. Any other plan
+ would be contrary to reason, to precedent, and to decorum.
+The fourth point rests on this plain proposition, that the peace
+ of the WHOLE ought not to be left at the disposal of a PART. The
+ Union will undoubtedly be answerable to foreign powers for the
+ conduct of its members. And the responsibility for an injury ought
+ ever to be accompanied with the faculty of preventing it. As the
+ denial or perversion of justice by the sentences of courts, as well
+ as in any other manner, is with reason classed among the just causes
+ of war, it will follow that the federal judiciary ought to have
+ cognizance of all causes in which the citizens of other countries
+ are concerned. This is not less essential to the preservation of
+ the public faith, than to the security of the public tranquillity.
+ A distinction may perhaps be imagined between cases arising upon
+ treaties and the laws of nations and those which may stand merely on
+ the footing of the municipal law. The former kind may be supposed
+ proper for the federal jurisdiction, the latter for that of the
+ States. But it is at least problematical, whether an unjust
+ sentence against a foreigner, where the subject of controversy was
+ wholly relative to the lex loci, would not, if unredressed, be
+ an aggression upon his sovereign, as well as one which violated the
+ stipulations of a treaty or the general law of nations. And a still
+ greater objection to the distinction would result from the immense
+ difficulty, if not impossibility, of a practical discrimination
+ between the cases of one complexion and those of the other. So
+ great a proportion of the cases in which foreigners are parties,
+ involve national questions, that it is by far most safe and most
+ expedient to refer all those in which they are concerned to the
+ national tribunals.
+The power of determining causes between two States, between one
+ State and the citizens of another, and between the citizens of
+ different States, is perhaps not less essential to the peace of the
+ Union than that which has been just examined. History gives us a
+ horrid picture of the dissensions and private wars which distracted
+ and desolated Germany prior to the institution of the Imperial
+ Chamber by Maximilian, towards the close of the fifteenth century;
+ and informs us, at the same time, of the vast influence of that
+ institution in appeasing the disorders and establishing the
+ tranquillity of the empire. This was a court invested with
+ authority to decide finally all differences among the members of the
+ Germanic body.
+A method of terminating territorial disputes between the States,
+ under the authority of the federal head, was not unattended to, even
+ in the imperfect system by which they have been hitherto held
+ together. But there are many other sources, besides interfering
+ claims of boundary, from which bickerings and animosities may spring
+ up among the members of the Union. To some of these we have been
+ witnesses in the course of our past experience. It will readily be
+ conjectured that I allude to the fraudulent laws which have been
+ passed in too many of the States. And though the proposed
+ Constitution establishes particular guards against the repetition of
+ those instances which have heretofore made their appearance, yet it
+ is warrantable to apprehend that the spirit which produced them will
+ assume new shapes, that could not be foreseen nor specifically
+ provided against. Whatever practices may have a tendency to disturb
+ the harmony between the States, are proper objects of federal
+ superintendence and control.
+It may be esteemed the basis of the Union, that ``the citizens
+ of each State shall be entitled to all the privileges and immunities
+ of citizens of the several States.'' And if it be a just principle
+ that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS
+ OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order
+ to the inviolable maintenance of that equality of privileges and
+ immunities to which the citizens of the Union will be entitled, the
+ national judiciary ought to preside in all cases in which one State
+ or its citizens are opposed to another State or its citizens. To
+ secure the full effect of so fundamental a provision against all
+ evasion and subterfuge, it is necessary that its construction should
+ be committed to that tribunal which, having no local attachments,
+ will be likely to be impartial between the different States and
+ their citizens, and which, owing its official existence to the
+ Union, will never be likely to feel any bias inauspicious to the
+ principles on which it is founded.
+The fifth point will demand little animadversion. The most
+ bigoted idolizers of State authority have not thus far shown a
+ disposition to deny the national judiciary the cognizances of
+ maritime causes. These so generally depend on the laws of nations,
+ and so commonly affect the rights of foreigners, that they fall
+ within the considerations which are relative to the public peace.
+ The most important part of them are, by the present Confederation,
+ submitted to federal jurisdiction.
+The reasonableness of the agency of the national courts in cases
+ in which the State tribunals cannot be supposed to be impartial,
+ speaks for itself. No man ought certainly to be a judge in his own
+ cause, or in any cause in respect to which he has the least interest
+ or bias. This principle has no inconsiderable weight in designating
+ the federal courts as the proper tribunals for the determination of
+ controversies between different States and their citizens. And it
+ ought to have the same operation in regard to some cases between
+ citizens of the same State. Claims to land under grants of
+ different States, founded upon adverse pretensions of boundary, are
+ of this description. The courts of neither of the granting States
+ could be expected to be unbiased. The laws may have even prejudged
+ the question, and tied the courts down to decisions in favor of the
+ grants of the State to which they belonged. And even where this had
+ not been done, it would be natural that the judges, as men, should
+ feel a strong predilection to the claims of their own government.
+Having thus laid down and discussed the principles which ought
+ to regulate the constitution of the federal judiciary, we will
+ proceed to test, by these principles, the particular powers of
+ which, according to the plan of the convention, it is to be composed.
+ It is to comprehend ``all cases in law and equity arising under
+ the Constitution, the laws of the United States, and treaties made,
+ or which shall be made, under their authority; to all cases
+ affecting ambassadors, other public ministers, and consuls; to all
+ cases of admiralty and maritime jurisdiction; to controversies to
+ which the United States shall be a party; to controversies between
+ two or more States; between a State and citizens of another State;
+ between citizens of different States; between citizens of the same
+ State claiming lands and grants of different States; and between a
+ State or the citizens thereof and foreign states, citizens, and
+ subjects.'' This constitutes the entire mass of the judicial
+ authority of the Union. Let us now review it in detail. It is,
+ then, to extend:
+First. To all cases in law and equity, ARISING UNDER THE
+ CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds
+ with the two first classes of causes, which have been enumerated, as
+ proper for the jurisdiction of the United States. It has been
+ asked, what is meant by ``cases arising under the Constitution,'' in
+ contradiction from those ``arising under the laws of the United
+ States''? The difference has been already explained. All the
+ restrictions upon the authority of the State legislatures furnish
+ examples of it. They are not, for instance, to emit paper money;
+ but the interdiction results from the Constitution, and will have
+ no connection with any law of the United States. Should paper
+ money, notwithstanding, be emited, the controversies concerning it
+ would be cases arising under the Constitution and not the laws of
+ the United States, in the ordinary signification of the terms. This
+ may serve as a sample of the whole.
+It has also been asked, what need of the word ``equity What
+ equitable causes can grow out of the Constitution and laws of the
+ United States? There is hardly a subject of litigation between
+ individuals, which may not involve those ingredients of FRAUD,
+ ACCIDENT, TRUST, or HARDSHIP, which would render the matter an
+ object of equitable rather than of legal jurisdiction, as the
+ distinction is known and established in several of the States. It
+ is the peculiar province, for instance, of a court of equity to
+ relieve against what are called hard bargains: these are contracts
+ in which, though there may have been no direct fraud or deceit,
+ sufficient to invalidate them in a court of law, yet there may have
+ been some undue and unconscionable advantage taken of the
+ necessities or misfortunes of one of the parties, which a court of
+ equity would not tolerate. In such cases, where foreigners were
+ concerned on either side, it would be impossible for the federal
+ judicatories to do justice without an equitable as well as a legal
+ jurisdiction. Agreements to convey lands claimed under the grants
+ of different States, may afford another example of the necessity of
+ an equitable jurisdiction in the federal courts. This reasoning may
+ not be so palpable in those States where the formal and technical
+ distinction between LAW and EQUITY is not maintained, as in this
+ State, where it is exemplified by every day's practice.
+The judiciary authority of the Union is to extend:
+Second. To treaties made, or which shall be made, under the
+ authority of the United States, and to all cases affecting
+ ambassadors, other public ministers, and consuls. These belong to
+ the fourth class of the enumerated cases, as they have an evident
+ connection with the preservation of the national peace.
+Third. To cases of admiralty and maritime jurisdiction.
+ These form, altogether, the fifth of the enumerated classes of
+ causes proper for the cognizance of the national courts.
+Fourth. To controversies to which the United States shall be
+ a party. These constitute the third of those classes.
+Fifth. To controversies between two or more States; between
+ a State and citizens of another State; between citizens of
+ different States. These belong to the fourth of those classes, and
+ partake, in some measure, of the nature of the last.
+Sixth. To cases between the citizens of the same State,
+ CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within
+ the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED
+ CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES
+ BETWEEN THE CITIZENS OF THE SAME STATE.
+Seventh. To cases between a State and the citizens thereof,
+ and foreign States, citizens, or subjects. These have been already
+ explained to belong to the fourth of the enumerated classes, and
+ have been shown to be, in a peculiar manner, the proper subjects of
+ the national judicature.
+From this review of the particular powers of the federal
+ judiciary, as marked out in the Constitution, it appears that they
+ are all conformable to the principles which ought to have governed
+ the structure of that department, and which were necessary to the
+ perfection of the system. If some partial inconviences should
+ appear to be connected with the incorporation of any of them into
+ the plan, it ought to be recollected that the national legislature
+ will have ample authority to make such EXCEPTIONS, and to prescribe
+ such regulations as will be calculated to obviate or remove these
+ inconveniences. The possibility of particular mischiefs can never
+ be viewed, by a wellinformed mind, as a solid objection to a general
+ principle, which is calculated to avoid general mischiefs and to
+ obtain general advantages.
+PUBLIUS.
+
+
+FEDERALIST. No. 81
+
+The Judiciary Continued, and the Distribution of the Judicial
+ Authority
+From McLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+LET US now return to the partition of the judiciary authority
+ between different courts, and their relations to each other,
+ ``The judicial power of the United States is'' (by the plan of
+ the convention) ``to be vested in one Supreme Court, and in such
+ inferior courts as the Congress may, from time to time, ordain and
+ establish.''1
+That there ought to be one court of supreme and final
+ jurisdiction, is a proposition which is not likely to be contested.
+ The reasons for it have been assigned in another place, and are too
+ obvious to need repetition. The only question that seems to have
+ been raised concerning it, is, whether it ought to be a distinct
+ body or a branch of the legislature. The same contradiction is
+ observable in regard to this matter which has been remarked in
+ several other cases. The very men who object to the Senate as a
+ court of impeachments, on the ground of an improper intermixture of
+ powers, advocate, by implication at least, the propriety of vesting
+ the ultimate decision of all causes, in the whole or in a part of
+ the legislative body.
+The arguments, or rather suggestions, upon which this charge is
+ founded, are to this effect: ``The authority of the proposed
+ Supreme Court of the United States, which is to be a separate and
+ independent body, will be superior to that of the legislature. The
+ power of construing the laws according to the SPIRIT of the
+ Constitution, will enable that court to mould them into whatever
+ shape it may think proper; especially as its decisions will not be
+ in any manner subject to the revision or correction of the
+ legislative body. This is as unprecedented as it is dangerous. In
+ Britain, the judical power, in the last resort, resides in the House
+ of Lords, which is a branch of the legislature; and this part of
+ the British government has been imitated in the State constitutions
+ in general. The Parliament of Great Britain, and the legislatures
+ of the several States, can at any time rectify, by law, the
+ exceptionable decisions of their respective courts. But the errors
+ and usurpations of the Supreme Court of the United States will be
+ uncontrollable and remediless.'' This, upon examination, will be
+ found to be made up altogether of false reasoning upon misconceived
+ fact.
+In the first place, there is not a syllable in the plan under
+ consideration which DIRECTLY empowers the national courts to
+ construe the laws according to the spirit of the Constitution, or
+ which gives them any greater latitude in this respect than may be
+ claimed by the courts of every State. I admit, however, that the
+ Constitution ought to be the standard of construction for the laws,
+ and that wherever there is an evident opposition, the laws ought to
+ give place to the Constitution. But this doctrine is not deducible
+ from any circumstance peculiar to the plan of the convention, but
+ from the general theory of a limited Constitution; and as far as it
+ is true, is equally applicable to most, if not to all the State
+ governments. There can be no objection, therefore, on this account,
+ to the federal judicature which will not lie against the local
+ judicatures in general, and which will not serve to condemn every
+ constitution that attempts to set bounds to legislative discretion.
+But perhaps the force of the objection may be thought to consist
+ in the particular organization of the Supreme Court; in its being
+ composed of a distinct body of magistrates, instead of being one of
+ the branches of the legislature, as in the government of Great
+ Britain and that of the State. To insist upon this point, the
+ authors of the objection must renounce the meaning they have labored
+ to annex to the celebrated maxim, requiring a separation of the
+ departments of power. It shall, nevertheless, be conceded to them,
+ agreeably to the interpretation given to that maxim in the course of
+ these papers, that it is not violated by vesting the ultimate power
+ of judging in a PART of the legislative body. But though this be
+ not an absolute violation of that excellent rule, yet it verges so
+ nearly upon it, as on this account alone to be less eligible than
+ the mode preferred by the convention. From a body which had even a
+ partial agency in passing bad laws, we could rarely expect a
+ disposition to temper and moderate them in the application. The
+ same spirit which had operated in making them, would be too apt in
+ interpreting them; still less could it be expected that men who had
+ infringed the Constitution in the character of legislators, would be
+ disposed to repair the breach in the character of judges. Nor is
+ this all. Every reason which recommends the tenure of good behavior
+ for judicial offices, militates against placing the judiciary power,
+ in the last resort, in a body composed of men chosen for a limited
+ period. There is an absurdity in referring the determination of
+ causes, in the first instance, to judges of permanent standing; in
+ the last, to those of a temporary and mutable constitution. And
+ there is a still greater absurdity in subjecting the decisions of
+ men, selected for their knowledge of the laws, acquired by long and
+ laborious study, to the revision and control of men who, for want of
+ the same advantage, cannot but be deficient in that knowledge. The
+ members of the legislature will rarely be chosen with a view to
+ those qualifications which fit men for the stations of judges; and
+ as, on this account, there will be great reason to apprehend all the
+ ill consequences of defective information, so, on account of the
+ natural propensity of such bodies to party divisions, there will be
+ no less reason to fear that the pestilential breath of faction may
+ poison the fountains of justice. The habit of being continually
+ marshalled on opposite sides will be too apt to stifle the voice
+ both of law and of equity.
+These considerations teach us to applaud the wisdom of those
+ States who have committed the judicial power, in the last resort,
+ not to a part of the legislature, but to distinct and independent
+ bodies of men. Contrary to the supposition of those who have
+ represented the plan of the convention, in this respect, as novel
+ and unprecedented, it is but a copy of the constitutions of New
+ Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland,
+ Virginia, North Carolina, South Carolina, and Georgia; and the
+ preference which has been given to those models is highly to be
+ commended.
+It is not true, in the second place, that the Parliament of
+ Great Britain, or the legislatures of the particular States, can
+ rectify the exceptionable decisions of their respective courts, in
+ any other sense than might be done by a future legislature of the
+ United States. The theory, neither of the British, nor the State
+ constitutions, authorizes the revisal of a judicial sentence by a
+ legislative act. Nor is there any thing in the proposed
+ Constitution, more than in either of them, by which it is forbidden.
+ In the former, as well as in the latter, the impropriety of the
+ thing, on the general principles of law and reason, is the sole
+ obstacle. A legislature, without exceeding its province, cannot
+ reverse a determination once made in a particular case; though it
+ may prescribe a new rule for future cases. This is the principle,
+ and it applies in all its consequences, exactly in the same manner
+ and extent, to the State governments, as to the national government
+ now under consideration. Not the least difference can be pointed
+ out in any view of the subject.
+It may in the last place be observed that the supposed danger of
+ judiciary encroachments on the legislative authority, which has been
+ upon many occasions reiterated, is in reality a phantom. Particular
+ misconstructions and contraventions of the will of the legislature
+ may now and then happen; but they can never be so extensive as to
+ amount to an inconvenience, or in any sensible degree to affect the
+ order of the political system. This may be inferred with certainty,
+ from the general nature of the judicial power, from the objects to
+ which it relates, from the manner in which it is exercised, from its
+ comparative weakness, and from its total incapacity to support its
+ usurpations by force. And the inference is greatly fortified by the
+ consideration of the important constitutional check which the power
+ of instituting impeachments in one part of the legislative body, and
+ of determining upon them in the other, would give to that body upon
+ the members of the judicial department. This is alone a complete
+ security. There never can be danger that the judges, by a series of
+ deliberate usurpations on the authority of the legislature, would
+ hazard the united resentment of the body intrusted with it, while
+ this body was possessed of the means of punishing their presumption,
+ by degrading them from their stations. While this ought to remove
+ all apprehensions on the subject, it affords, at the same time, a
+ cogent argument for constituting the Senate a court for the trial of
+ impeachments.
+Having now examined, and, I trust, removed the objections to the
+ distinct and independent organization of the Supreme Court, I
+ proceed to consider the propriety of the power of constituting
+ inferior courts,2 and the relations which will subsist between
+ these and the former.
+The power of constituting inferior courts is evidently
+ calculated to obviate the necessity of having recourse to the
+ Supreme Court in every case of federal cognizance. It is intended
+ to enable the national government to institute or AUTHORUZE, in each
+ State or district of the United States, a tribunal competent to the
+ determination of matters of national jurisdiction within its limits.
+But why, it is asked, might not the same purpose have been
+ accomplished by the instrumentality of the State courts? This
+ admits of different answers. Though the fitness and competency of
+ those courts should be allowed in the utmost latitude, yet the
+ substance of the power in question may still be regarded as a
+ necessary part of the plan, if it were only to empower the national
+ legislature to commit to them the cognizance of causes arising out
+ of the national Constitution. To confer the power of determining
+ such causes upon the existing courts of the several States, would
+ perhaps be as much ``to constitute tribunals,'' as to create new
+ courts with the like power. But ought not a more direct and
+ explicit provision to have been made in favor of the State courts?
+ There are, in my opinion, substantial reasons against such a
+ provision: the most discerning cannot foresee how far the
+ prevalency of a local spirit may be found to disqualify the local
+ tribunals for the jurisdiction of national causes; whilst every man
+ may discover, that courts constituted like those of some of the
+ States would be improper channels of the judicial authority of the
+ Union. State judges, holding their offices during pleasure, or from
+ year to year, will be too little independent to be relied upon for
+ an inflexible execution of the national laws. And if there was a
+ necessity for confiding the original cognizance of causes arising
+ under those laws to them there would be a correspondent necessity
+ for leaving the door of appeal as wide as possible. In proportion
+ to the grounds of confidence in, or distrust of, the subordinate
+ tribunals, ought to be the facility or difficulty of appeals. And
+ well satisfied as I am of the propriety of the appellate
+ jurisdiction, in the several classes of causes to which it is
+ extended by the plan of the convention. I should consider every
+ thing calculated to give, in practice, an UNRESTRAINED COURSE to
+ appeals, as a source of public and private inconvenience.
+I am not sure, but that it will be found highly expedient and
+ useful, to divide the United States into four or five or half a
+ dozen districts; and to institute a federal court in each district,
+ in lieu of one in every State. The judges of these courts, with the
+ aid of the State judges, may hold circuits for the trial of causes
+ in the several parts of the respective districts. Justice through
+ them may be administered with ease and despatch; and appeals may be
+ safely circumscribed within a narrow compass. This plan appears to
+ me at present the most eligible of any that could be adopted; and
+ in order to it, it is necessary that the power of constituting
+ inferior courts should exist in the full extent in which it is to be
+ found in the proposed Constitution.
+These reasons seem sufficient to satisfy a candid mind, that the
+ want of such a power would have been a great defect in the plan.
+ Let us now examine in what manner the judicial authority is to be
+ distributed between the supreme and the inferior courts of the Union.
+ The Supreme Court is to be invested with original jurisdiction,
+ only ``in cases affecting ambassadors, other public ministers, and
+ consuls, and those in which A STATE shall be a party.'' Public
+ ministers of every class are the immediate representatives of their
+ sovereigns. All questions in which they are concerned are so
+ directly connected with the public peace, that, as well for the
+ preservation of this, as out of respect to the sovereignties they
+ represent, it is both expedient and proper that such questions
+ should be submitted in the first instance to the highest judicatory
+ of the nation. Though consuls have not in strictness a diplomatic
+ character, yet as they are the public agents of the nations to which
+ they belong, the same observation is in a great measure applicable
+ to them. In cases in which a State might happen to be a party, it
+ would ill suit its dignity to be turned over to an inferior tribunal.
+ Though it may rather be a digression from the immediate subject
+ of this paper, I shall take occasion to mention here a supposition
+ which has excited some alarm upon very mistaken grounds. It has
+ been suggested that an assignment of the public securities of one
+ State to the citizens of another, would enable them to prosecute
+ that State in the federal courts for the amount of those securities;
+ a suggestion which the following considerations prove to be without
+ foundation.
+It is inherent in the nature of sovereignty not to be amenable
+ to the suit of an individual WITHOUT ITS CONSENT. This is the
+ general sense, and the general practice of mankind; and the
+ exemption, as one of the attributes of sovereignty, is now enjoyed
+ by the government of every State in the Union. Unless, therefore,
+ there is a surrender of this immunity in the plan of the convention,
+ it will remain with the States, and the danger intimated must be
+ merely ideal. The circumstances which are necessary to produce an
+ alienation of State sovereignty were discussed in considering the
+ article of taxation, and need not be repeated here. A recurrence to
+ the principles there established will satisfy us, that there is no
+ color to pretend that the State governments would, by the adoption
+ of that plan, be divested of the privilege of paying their own debts
+ in their own way, free from every constraint but that which flows
+ from the obligations of good faith. The contracts between a nation
+ and individuals are only binding on the conscience of the sovereign,
+ and have no pretensions to a compulsive force. They confer no right
+ of action, independent of the sovereign will. To what purpose would
+ it be to authorize suits against States for the debts they owe? How
+ could recoveries be enforced? It is evident, it could not be done
+ without waging war against the contracting State; and to ascribe to
+ the federal courts, by mere implication, and in destruction of a
+ pre-existing right of the State governments, a power which would
+ involve such a consequence, would be altogether forced and
+ unwarrantable.
+Let us resume the train of our observations. We have seen that
+ the original jurisdiction of the Supreme Court would be confined to
+ two classes of causes, and those of a nature rarely to occur. In
+ all other cases of federal cognizance, the original jurisdiction
+ would appertain to the inferior tribunals; and the Supreme Court
+ would have nothing more than an appellate jurisdiction, ``with such
+ EXCEPTIONS and under such REGULATIONS as the Congress shall make.''
+The propriety of this appellate jurisdiction has been scarcely
+ called in question in regard to matters of law; but the clamors
+ have been loud against it as applied to matters of fact. Some
+ well-intentioned men in this State, deriving their notions from the
+ language and forms which obtain in our courts, have been induced to
+ consider it as an implied supersedure of the trial by jury, in favor
+ of the civil-law mode of trial, which prevails in our courts of
+ admiralty, probate, and chancery. A technical sense has been
+ affixed to the term ``appellate,'' which, in our law parlance, is
+ commonly used in reference to appeals in the course of the civil law.
+ But if I am not misinformed, the same meaning would not be given
+ to it in any part of New England. There an appeal from one jury to
+ another, is familiar both in language and practice, and is even a
+ matter of course, until there have been two verdicts on one side.
+ The word ``appellate,'' therefore, will not be understood in the
+ same sense in New England as in New York, which shows the
+ impropriety of a technical interpretation derived from the
+ jurisprudence of any particular State. The expression, taken in the
+ abstract, denotes nothing more than the power of one tribunal to
+ review the proceedings of another, either as to the law or fact, or
+ both. The mode of doing it may depend on ancient custom or
+ legislative provision (in a new government it must depend on the
+ latter), and may be with or without the aid of a jury, as may be
+ judged advisable. If, therefore, the re-examination of a fact once
+ determined by a jury, should in any case be admitted under the
+ proposed Constitution, it may be so regulated as to be done by a
+ second jury, either by remanding the cause to the court below for a
+ second trial of the fact, or by directing an issue immediately out
+ of the Supreme Court.
+But it does not follow that the re-examination of a fact once
+ ascertained by a jury, will be permitted in the Supreme Court. Why
+ may not it be said, with the strictest propriety, when a writ of
+ error is brought from an inferior to a superior court of law in this
+ State, that the latter has jurisdiction of the fact as well as the
+ law? It is true it cannot institute a new inquiry concerning the
+ fact, but it takes cognizance of it as it appears upon the record,
+ and pronounces the law arising upon it.3 This is jurisdiction
+ of both fact and law; nor is it even possible to separate them.
+ Though the common-law courts of this State ascertain disputed facts
+ by a jury, yet they unquestionably have jurisdiction of both fact
+ and law; and accordingly when the former is agreed in the
+ pleadings, they have no recourse to a jury, but proceed at once to
+ judgment. I contend, therefore, on this ground, that the
+ expressions, ``appellate jurisdiction, both as to law and fact,'' do
+ not necessarily imply a re-examination in the Supreme Court of facts
+ decided by juries in the inferior courts.
+The following train of ideas may well be imagined to have
+ influenced the convention, in relation to this particular provision.
+ The appellate jurisdiction of the Supreme Court (it may have been
+ argued) will extend to causes determinable in different modes, some
+ in the course of the COMMON LAW, others in the course of the CIVIL
+ LAW. In the former, the revision of the law only will be, generally
+ speaking, the proper province of the Supreme Court; in the latter,
+ the re-examination of the fact is agreeable to usage, and in some
+ cases, of which prize causes are an example, might be essential to
+ the preservation of the public peace. It is therefore necessary
+ that the appellate jurisdiction should, in certain cases, extend in
+ the broadest sense to matters of fact. It will not answer to make
+ an express exception of cases which shall have been originally tried
+ by a jury, because in the courts of some of the States ALL CAUSES
+ are tried in this mode4; and such an exception would preclude
+ the revision of matters of fact, as well where it might be proper,
+ as where it might be improper. To avoid all inconveniencies, it
+ will be safest to declare generally, that the Supreme Court shall
+ possess appellate jurisdiction both as to law and FACT, and that
+ this jurisdiction shall be subject to such EXCEPTIONS and
+ regulations as the national legislature may prescribe. This will
+ enable the government to modify it in such a manner as will best
+ answer the ends of public justice and security.
+This view of the matter, at any rate, puts it out of all doubt
+ that the supposed ABOLITION of the trial by jury, by the operation
+ of this provision, is fallacious and untrue. The legislature of the
+ United States would certainly have full power to provide, that in
+ appeals to the Supreme Court there should be no re-examination of
+ facts where they had been tried in the original causes by juries.
+ This would certainly be an authorized exception; but if, for the
+ reason already intimated, it should be thought too extensive, it
+ might be qualified with a limitation to such causes only as are
+ determinable at common law in that mode of trial.
+The amount of the observations hitherto made on the authority of
+ the judicial department is this: that it has been carefully
+ restricted to those causes which are manifestly proper for the
+ cognizance of the national judicature; that in the partition of
+ this authority a very small portion of original jurisdiction has
+ been preserved to the Supreme Court, and the rest consigned to the
+ subordinate tribunals; that the Supreme Court will possess an
+ appellate jurisdiction, both as to law and fact, in all the cases
+ referred to them, both subject to any EXCEPTIONS and REGULATIONS
+ which may be thought advisable; that this appellate jurisdiction
+ does, in no case, ABOLISH the trial by jury; and that an ordinary
+ degree of prudence and integrity in the national councils will
+ insure us solid advantages from the establishment of the proposed
+ judiciary, without exposing us to any of the inconveniences which
+ have been predicted from that source.
+PUBLIUS.
+1 Article 3, sec. I.
+2 This power has been absurdly represented as intended to
+ abolish all the county courts in the several States, which are
+ commonly called inferior courts. But the expressions of the
+ Constitution are, to constitute ``tribunals INFERIOR TO THE SUPREME
+ COURT''; and the evident design of the provision is to enable the
+ institution of local courts, subordinate to the Supreme, either in
+ States or larger districts. It is ridiculous to imagine that county
+ courts were in contemplation.
+3 This word is composed of JUS and DICTIO, juris dictio or a
+ speaking and pronouncing of the law.
+4 I hold that the States will have concurrent jurisdiction with
+ the subordinate federal judicatories, in many cases of federal
+ cognizance, as will be explained in my next paper.
+
+
+FEDERALIST No. 82
+
+The Judiciary Continued
+From McLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+THE erection of a new government, whatever care or wisdom may
+ distinguish the work, cannot fail to originate questions of
+ intricacy and nicety; and these may, in a particular manner, be
+ expected to flow from the establishment of a constitution founded
+ upon the total or partial incorporation of a number of distinct
+ sovereignties. 'T is time only that can mature and perfect so
+ compound a system, can liquidate the meaning of all the parts, and
+ can adjust them to each other in a harmonious and consistent WHOLE.
+Such questions, accordingly, have arisen upon the plan proposed
+ by the convention, and particularly concerning the judiciary
+ department. The principal of these respect the situation of the
+ State courts in regard to those causes which are to be submitted to
+ federal jurisdiction. Is this to be exclusive, or are those courts
+ to possess a concurrent jurisdiction? If the latter, in what
+ relation will they stand to the national tribunals? These are
+ inquiries which we meet with in the mouths of men of sense, and
+ which are certainly entitled to attention.
+The principles established in a former paper1 teach us that
+ the States will retain all PRE-EXISTING authorities which may not be
+ exclusively delegated to the federal head; and that this exclusive
+ delegation can only exist in one of three cases: where an exclusive
+ authority is, in express terms, granted to the Union; or where a
+ particular authority is granted to the Union, and the exercise of a
+ like authority is prohibited to the States; or where an authority
+ is granted to the Union, with which a similar authority in the
+ States would be utterly incompatible. Though these principles may
+ not apply with the same force to the judiciary as to the legislative
+ power, yet I am inclined to think that they are, in the main, just
+ with respect to the former, as well as the latter. And under this
+ impression, I shall lay it down as a rule, that the State courts
+ will RETAIN the jurisdiction they now have, unless it appears to be
+ taken away in one of the enumerated modes.
+The only thing in the proposed Constitution, which wears the
+ appearance of confining the causes of federal cognizance to the
+ federal courts, is contained in this passage: ``The JUDICIAL POWER
+ of the United States SHALL BE VESTED in one Supreme Court, and in
+ SUCH inferior courts as the Congress shall from time to time ordain
+ and establish.'' This might either be construed to signify, that
+ the supreme and subordinate courts of the Union should alone have
+ the power of deciding those causes to which their authority is to
+ extend; or simply to denote, that the organs of the national
+ judiciary should be one Supreme Court, and as many subordinate
+ courts as Congress should think proper to appoint; or in other
+ words, that the United States should exercise the judicial power
+ with which they are to be invested, through one supreme tribunal,
+ and a certain number of inferior ones, to be instituted by them.
+ The first excludes, the last admits, the concurrent jurisdiction of
+ the State tribunals; and as the first would amount to an alienation
+ of State power by implication, the last appears to me the most
+ natural and the most defensible construction.
+But this doctrine of concurrent jurisdiction is only clearly
+ applicable to those descriptions of causes of which the State courts
+ have previous cognizance. It is not equally evident in relation to
+ cases which may grow out of, and be PECULIAR to, the Constitution to
+ be established; for not to allow the State courts a right of
+ jurisdiction in such cases, can hardly be considered as the
+ abridgment of a pre-existing authority. I mean not therefore to
+ contend that the United States, in the course of legislation upon
+ the objects intrusted to their direction, may not commit the
+ decision of causes arising upon a particular regulation to the
+ federal courts solely, if such a measure should be deemed expedient;
+ but I hold that the State courts will be divested of no part of
+ their primitive jurisdiction, further than may relate to an appeal;
+ and I am even of opinion that in every case in which they were not
+ expressly excluded by the future acts of the national legislature,
+ they will of course take cognizance of the causes to which those
+ acts may give birth. This I infer from the nature of judiciary
+ power, and from the general genius of the system. The judiciary
+ power of every government looks beyond its own local or municipal
+ laws, and in civil cases lays hold of all subjects of litigation
+ between parties within its jurisdiction, though the causes of
+ dispute are relative to the laws of the most distant part of the
+ globe. Those of Japan, not less than of New York, may furnish the
+ objects of legal discussion to our courts. When in addition to this
+ we consider the State governments and the national governments, as
+ they truly are, in the light of kindred systems, and as parts of ONE
+ WHOLE, the inference seems to be conclusive, that the State courts
+ would have a concurrent jurisdiction in all cases arising under the
+ laws of the Union, where it was not expressly prohibited.
+Here another question occurs: What relation would subsist
+ between the national and State courts in these instances of
+ concurrent jurisdiction? I answer, that an appeal would certainly
+ lie from the latter, to the Supreme Court of the United States. The
+ Constitution in direct terms gives an appellate jurisdiction to the
+ Supreme Court in all the enumerated cases of federal cognizance in
+ which it is not to have an original one, without a single expression
+ to confine its operation to the inferior federal courts. The
+ objects of appeal, not the tribunals from which it is to be made,
+ are alone contemplated. From this circumstance, and from the reason
+ of the thing, it ought to be construed to extend to the State
+ tribunals. Either this must be the case, or the local courts must
+ be excluded from a concurrent jurisdiction in matters of national
+ concern, else the judiciary authority of the Union may be eluded at
+ the pleasure of every plaintiff or prosecutor. Neither of these
+ consequences ought, without evident necessity, to be involved; the
+ latter would be entirely inadmissible, as it would defeat some of
+ the most important and avowed purposes of the proposed government,
+ and would essentially embarrass its measures. Nor do I perceive any
+ foundation for such a supposition. Agreeably to the remark already
+ made, the national and State systems are to be regarded as ONE WHOLE.
+ The courts of the latter will of course be natural auxiliaries to
+ the execution of the laws of the Union, and an appeal from them will
+ as naturally lie to that tribunal which is destined to unite and
+ assimilate the principles of national justice and the rules of
+ national decisions. The evident aim of the plan of the convention
+ is, that all the causes of the specified classes shall, for weighty
+ public reasons, receive their original or final determination in the
+ courts of the Union. To confine, therefore, the general expressions
+ giving appellate jurisdiction to the Supreme Court, to appeals from
+ the subordinate federal courts, instead of allowing their extension
+ to the State courts, would be to abridge the latitude of the terms,
+ in subversion of the intent, contrary to every sound rule of
+ interpretation.
+But could an appeal be made to lie from the State courts to the
+ subordinate federal judicatories? This is another of the questions
+ which have been raised, and of greater difficulty than the former.
+ The following considerations countenance the affirmative. The plan
+ of the convention, in the first place, authorizes the national
+ legislature ``to constitute tribunals inferior to the Supreme
+ Court.''2 It declares, in the next place, that ``the JUDICIAL
+ POWER of the United States SHALL BE VESTED in one Supreme Court, and
+ in such inferior courts as Congress shall ordain and establish'';
+ and it then proceeds to enumerate the cases to which this judicial
+ power shall extend. It afterwards divides the jurisdiction of the
+ Supreme Court into original and appellate, but gives no definition
+ of that of the subordinate courts. The only outlines described for
+ them, are that they shall be ``inferior to the Supreme Court,'' and
+ that they shall not exceed the specified limits of the federal
+ judiciary. Whether their authority shall be original or appellate,
+ or both, is not declared. All this seems to be left to the
+ discretion of the legislature. And this being the case, I perceive
+ at present no impediment to the establishment of an appeal from the
+ State courts to the subordinate national tribunals; and many
+ advantages attending the power of doing it may be imagined. It
+ would diminish the motives to the multiplication of federal courts,
+ and would admit of arrangements calculated to contract the appellate
+ jurisdiction of the Supreme Court. The State tribunals may then be
+ left with a more entire charge of federal causes; and appeals, in
+ most cases in which they may be deemed proper, instead of being
+ carried to the Supreme Court, may be made to lie from the State
+ courts to district courts of the Union.
+PUBLIUS.
+1 No. 31.
+2 Sec. 8th art. 1st.
+
+
+FEDERALIST No. 83
+
+The Judiciary Continued in Relation to Trial by Jury
+From MCLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+THE objection to the plan of the convention, which has met with
+ most success in this State, and perhaps in several of the other
+ States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION
+ for the trial by jury in civil cases. The disingenuous form in
+ which this objection is usually stated has been repeatedly adverted
+ to and exposed, but continues to be pursued in all the conversations
+ and writings of the opponents of the plan. The mere silence of the
+ Constitution in regard to CIVIL CAUSES, is represented as an
+ abolition of the trial by jury, and the declamations to which it has
+ afforded a pretext are artfully calculated to induce a persuasion
+ that this pretended abolition is complete and universal, extending
+ not only to every species of civil, but even to CRIMINAL CAUSES. To
+ argue with respect to the latter would, however, be as vain and
+ fruitless as to attempt the serious proof of the EXISTENCE of
+ MATTER, or to demonstrate any of those propositions which, by their
+ own internal evidence, force conviction, when expressed in language
+ adapted to convey their meaning.
+With regard to civil causes, subtleties almost too contemptible
+ for refutation have been employed to countenance the surmise that a
+ thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every
+ man of discernment must at once perceive the wide difference between
+ SILENCE and ABOLITION. But as the inventors of this fallacy have
+ attempted to support it by certain LEGAL MAXIMS of interpretation,
+ which they have perverted from their true meaning, it may not be
+ wholly useless to explore the ground they have taken.
+The maxims on which they rely are of this nature: ``A
+ specification of particulars is an exclusion of generals''; or,
+ ``The expression of one thing is the exclusion of another.'' Hence,
+ say they, as the Constitution has established the trial by jury in
+ criminal cases, and is silent in respect to civil, this silence is
+ an implied prohibition of trial by jury in regard to the latter.
+The rules of legal interpretation are rules of COMMONSENSE,
+ adopted by the courts in the construction of the laws. The true
+ test, therefore, of a just application of them is its conformity to
+ the source from which they are derived. This being the case, let me
+ ask if it is consistent with common-sense to suppose that a
+ provision obliging the legislative power to commit the trial of
+ criminal causes to juries, is a privation of its right to authorize
+ or permit that mode of trial in other cases? Is it natural to
+ suppose, that a command to do one thing is a prohibition to the
+ doing of another, which there was a previous power to do, and which
+ is not incompatible with the thing commanded to be done? If such a
+ supposition would be unnatural and unreasonable, it cannot be
+ rational to maintain that an injunction of the trial by jury in
+ certain cases is an interdiction of it in others.
+A power to constitute courts is a power to prescribe the mode of
+ trial; and consequently, if nothing was said in the Constitution on
+ the subject of juries, the legislature would be at liberty either to
+ adopt that institution or to let it alone. This discretion, in
+ regard to criminal causes, is abridged by the express injunction of
+ trial by jury in all such cases; but it is, of course, left at
+ large in relation to civil causes, there being a total silence on
+ this head. The specification of an obligation to try all criminal
+ causes in a particular mode, excludes indeed the obligation or
+ necessity of employing the same mode in civil causes, but does not
+ abridge THE POWER of the legislature to exercise that mode if it
+ should be thought proper. The pretense, therefore, that the
+ national legislature would not be at full liberty to submit all the
+ civil causes of federal cognizance to the determination of juries,
+ is a pretense destitute of all just foundation.
+From these observations this conclusion results: that the trial
+ by jury in civil cases would not be abolished; and that the use
+ attempted to be made of the maxims which have been quoted, is
+ contrary to reason and common-sense, and therefore not admissible.
+ Even if these maxims had a precise technical sense, corresponding
+ with the idea of those who employ them upon the present occasion,
+ which, however, is not the case, they would still be inapplicable to
+ a constitution of government. In relation to such a subject, the
+ natural and obvious sense of its provisions, apart from any
+ technical rules, is the true criterion of construction.
+Having now seen that the maxims relied upon will not bear the
+ use made of them, let us endeavor to ascertain their proper use and
+ true meaning. This will be best done by examples. The plan of the
+ convention declares that the power of Congress, or, in other words,
+ of the NATIONAL LEGISLATURE, shall extend to certain enumerated
+ cases. This specification of particulars evidently excludes all
+ pretension to a general legislative authority, because an
+ affirmative grant of special powers would be absurd, as well as
+ useless, if a general authority was intended.
+In like manner the judicial authority of the federal judicatures
+ is declared by the Constitution to comprehend certain cases
+ particularly specified. The expression of those cases marks the
+ precise limits, beyond which the federal courts cannot extend their
+ jurisdiction, because the objects of their cognizance being
+ enumerated, the specification would be nugatory if it did not
+ exclude all ideas of more extensive authority.
+These examples are sufficient to elucidate the maxims which have
+ been mentioned, and to designate the manner in which they should be
+ used. But that there may be no misapprehensions upon this subject,
+ I shall add one case more, to demonstrate the proper use of these
+ maxims, and the abuse which has been made of them.
+Let us suppose that by the laws of this State a married woman
+ was incapable of conveying her estate, and that the legislature,
+ considering this as an evil, should enact that she might dispose of
+ her property by deed executed in the presence of a magistrate. In
+ such a case there can be no doubt but the specification would amount
+ to an exclusion of any other mode of conveyance, because the woman
+ having no previous power to alienate her property, the specification
+ determines the particular mode which she is, for that purpose, to
+ avail herself of. But let us further suppose that in a subsequent
+ part of the same act it should be declared that no woman should
+ dispose of any estate of a determinate value without the consent of
+ three of her nearest relations, signified by their signing the deed;
+ could it be inferred from this regulation that a married woman
+ might not procure the approbation of her relations to a deed for
+ conveying property of inferior value? The position is too absurd to
+ merit a refutation, and yet this is precisely the position which
+ those must establish who contend that the trial by juries in civil
+ cases is abolished, because it is expressly provided for in cases of
+ a criminal nature.
+From these observations it must appear unquestionably true, that
+ trial by jury is in no case abolished by the proposed Constitution,
+ and it is equally true, that in those controversies between
+ individuals in which the great body of the people are likely to be
+ interested, that institution will remain precisely in the same
+ situation in which it is placed by the State constitutions, and will
+ be in no degree altered or influenced by the adoption of the plan
+ under consideration. The foundation of this assertion is, that the
+ national judiciary will have no cognizance of them, and of course
+ they will remain determinable as heretofore by the State courts
+ only, and in the manner which the State constitutions and laws
+ prescribe. All land causes, except where claims under the grants of
+ different States come into question, and all other controversies
+ between the citizens of the same State, unless where they depend
+ upon positive violations of the articles of union, by acts of the
+ State legislatures, will belong exclusively to the jurisdiction of
+ the State tribunals. Add to this, that admiralty causes, and almost
+ all those which are of equity jurisdiction, are determinable under
+ our own government without the intervention of a jury, and the
+ inference from the whole will be, that this institution, as it
+ exists with us at present, cannot possibly be affected to any great
+ extent by the proposed alteration in our system of government.
+The friends and adversaries of the plan of the convention, if
+ they agree in nothing else, concur at least in the value they set
+ upon the trial by jury; or if there is any difference between them
+ it consists in this: the former regard it as a valuable safeguard
+ to liberty; the latter represent it as the very palladium of free
+ government. For my own part, the more the operation of the
+ institution has fallen under my observation, the more reason I have
+ discovered for holding it in high estimation; and it would be
+ altogether superfluous to examine to what extent it deserves to be
+ esteemed useful or essential in a representative republic, or how
+ much more merit it may be entitled to, as a defense against the
+ oppressions of an hereditary monarch, than as a barrier to the
+ tyranny of popular magistrates in a popular government. Discussions
+ of this kind would be more curious than beneficial, as all are
+ satisfied of the utility of the institution, and of its friendly
+ aspect to liberty. But I must acknowledge that I cannot readily
+ discern the inseparable connection between the existence of liberty,
+ and the trial by jury in civil cases. Arbitrary impeachments,
+ arbitrary methods of prosecuting pretended offenses, and arbitrary
+ punishments upon arbitrary convictions, have ever appeared to me to
+ be the great engines of judicial despotism; and these have all
+ relation to criminal proceedings. The trial by jury in criminal
+ cases, aided by the habeas-corpus act, seems therefore to be
+ alone concerned in the question. And both of these are provided
+ for, in the most ample manner, in the plan of the convention.
+It has been observed, that trial by jury is a safeguard against
+ an oppressive exercise of the power of taxation. This observation
+ deserves to be canvassed.
+It is evident that it can have no influence upon the
+ legislature, in regard to the AMOUNT of taxes to be laid, to the
+ OBJECTS upon which they are to be imposed, or to the RULE by which
+ they are to be apportioned. If it can have any influence,
+ therefore, it must be upon the mode of collection, and the conduct
+ of the officers intrusted with the execution of the revenue laws.
+As to the mode of collection in this State, under our own
+ Constitution, the trial by jury is in most cases out of use. The
+ taxes are usually levied by the more summary proceeding of distress
+ and sale, as in cases of rent. And it is acknowledged on all hands,
+ that this is essential to the efficacy of the revenue laws. The
+ dilatory course of a trial at law to recover the taxes imposed on
+ individuals, would neither suit the exigencies of the public nor
+ promote the convenience of the citizens. It would often occasion an
+ accumulation of costs, more burdensome than the original sum of the
+ tax to be levied.
+And as to the conduct of the officers of the revenue, the
+ provision in favor of trial by jury in criminal cases, will afford
+ the security aimed at. Wilful abuses of a public authority, to the
+ oppression of the subject, and every species of official extortion,
+ are offenses against the government, for which the persons who
+ commit them may be indicted and punished according to the
+ circumstances of the case.
+The excellence of the trial by jury in civil cases appears to
+ depend on circumstances foreign to the preservation of liberty. The
+ strongest argument in its favor is, that it is a security against
+ corruption. As there is always more time and better opportunity to
+ tamper with a standing body of magistrates than with a jury summoned
+ for the occasion, there is room to suppose that a corrupt influence
+ would more easily find its way to the former than to the latter.
+ The force of this consideration is, however, diminished by others.
+ The sheriff, who is the summoner of ordinary juries, and the clerks
+ of courts, who have the nomination of special juries, are themselves
+ standing officers, and, acting individually, may be supposed more
+ accessible to the touch of corruption than the judges, who are a
+ collective body. It is not difficult to see, that it would be in
+ the power of those officers to select jurors who would serve the
+ purpose of the party as well as a corrupted bench. In the next
+ place, it may fairly be supposed, that there would be less
+ difficulty in gaining some of the jurors promiscuously taken from
+ the public mass, than in gaining men who had been chosen by the
+ government for their probity and good character. But making every
+ deduction for these considerations, the trial by jury must still be
+ a valuable check upon corruption. It greatly multiplies the
+ impediments to its success. As matters now stand, it would be
+ necessary to corrupt both court and jury; for where the jury have
+ gone evidently wrong, the court will generally grant a new trial,
+ and it would be in most cases of little use to practice upon the
+ jury, unless the court could be likewise gained. Here then is a
+ double security; and it will readily be perceived that this
+ complicated agency tends to preserve the purity of both institutions.
+ By increasing the obstacles to success, it discourages attempts to
+ seduce the integrity of either. The temptations to prostitution
+ which the judges might have to surmount, must certainly be much
+ fewer, while the co-operation of a jury is necessary, than they
+ might be, if they had themselves the exclusive determination of all
+ causes.
+Notwithstanding, therefore, the doubts I have expressed, as to
+ the essentiality of trial by jury in civil cases to liberty, I admit
+ that it is in most cases, under proper regulations, an excellent
+ method of determining questions of property; and that on this
+ account alone it would be entitled to a constitutional provision in
+ its favor if it were possible to fix the limits within which it
+ ought to be comprehended. There is, however, in all cases, great
+ difficulty in this; and men not blinded by enthusiasm must be
+ sensible that in a federal government, which is a composition of
+ societies whose ideas and institutions in relation to the matter
+ materially vary from each other, that difficulty must be not a
+ little augmented. For my own part, at every new view I take of the
+ subject, I become more convinced of the reality of the obstacles
+ which, we are authoritatively informed, prevented the insertion of a
+ provision on this head in the plan of the convention.
+The great difference between the limits of the jury trial in
+ different States is not generally understood; and as it must have
+ considerable influence on the sentence we ought to pass upon the
+ omission complained of in regard to this point, an explanation of it
+ is necessary. In this State, our judicial establishments resemble,
+ more nearly than in any other, those of Great Britain. We have
+ courts of common law, courts of probates (analogous in certain
+ matters to the spiritual courts in England), a court of admiralty
+ and a court of chancery. In the courts of common law only, the
+ trial by jury prevails, and this with some exceptions. In all the
+ others a single judge presides, and proceeds in general either
+ according to the course of the canon or civil law, without the aid
+ of a jury.1 In New Jersey, there is a court of chancery which
+ proceeds like ours, but neither courts of admiralty nor of probates,
+ in the sense in which these last are established with us. In that
+ State the courts of common law have the cognizance of those causes
+ which with us are determinable in the courts of admiralty and of
+ probates, and of course the jury trial is more extensive in New
+ Jersey than in New York. In Pennsylvania, this is perhaps still
+ more the case, for there is no court of chancery in that State, and
+ its common-law courts have equity jurisdiction. It has a court of
+ admiralty, but none of probates, at least on the plan of ours.
+ Delaware has in these respects imitated Pennsylvania. Maryland
+ approaches more nearly to New York, as does also Virginia, except
+ that the latter has a plurality of chancellors. North Carolina
+ bears most affinity to Pennsylvania; South Carolina to Virginia. I
+ believe, however, that in some of those States which have distinct
+ courts of admiralty, the causes depending in them are triable by
+ juries. In Georgia there are none but common-law courts, and an
+ appeal of course lies from the verdict of one jury to another, which
+ is called a special jury, and for which a particular mode of
+ appointment is marked out. In Connecticut, they have no distinct
+ courts either of chancery or of admiralty, and their courts of
+ probates have no jurisdiction of causes. Their common-law courts
+ have admiralty and, to a certain extent, equity jurisdiction. In
+ cases of importance, their General Assembly is the only court of
+ chancery. In Connecticut, therefore, the trial by jury extends in
+ PRACTICE further than in any other State yet mentioned. Rhode
+ Island is, I believe, in this particular, pretty much in the
+ situation of Connecticut. Massachusetts and New Hampshire, in
+ regard to the blending of law, equity, and admiralty jurisdictions,
+ are in a similar predicament. In the four Eastern States, the trial
+ by jury not only stands upon a broader foundation than in the other
+ States, but it is attended with a peculiarity unknown, in its full
+ extent, to any of them. There is an appeal OF COURSE from one jury
+ to another, till there have been two verdicts out of three on one
+ side.
+From this sketch it appears that there is a material diversity,
+ as well in the modification as in the extent of the institution of
+ trial by jury in civil cases, in the several States; and from this
+ fact these obvious reflections flow: first, that no general rule
+ could have been fixed upon by the convention which would have
+ corresponded with the circumstances of all the States; and
+ secondly, that more or at least as much might have been hazarded by
+ taking the system of any one State for a standard, as by omitting a
+ provision altogether and leaving the matter, as has been done, to
+ legislative regulation.
+The propositions which have been made for supplying the omission
+ have rather served to illustrate than to obviate the difficulty of
+ the thing. The minority of Pennsylvania have proposed this mode of
+ expression for the purpose ``Trial by jury shall be as
+ heretofore'' and this I maintain would be senseless and nugatory.
+ The United States, in their united or collective capacity, are the
+ OBJECT to which all general provisions in the Constitution must
+ necessarily be construed to refer. Now it is evident that though
+ trial by jury, with various limitations, is known in each State
+ individually, yet in the United States, AS SUCH, it is at this time
+ altogether unknown, because the present federal government has no
+ judiciary power whatever; and consequently there is no proper
+ antecedent or previous establishment to which the term HERETOFORE
+ could relate. It would therefore be destitute of a precise meaning,
+ and inoperative from its uncertainty.
+As, on the one hand, the form of the provision would not fulfil
+ the intent of its proposers, so, on the other, if I apprehend that
+ intent rightly, it would be in itself inexpedient. I presume it to
+ be, that causes in the federal courts should be tried by jury, if,
+ in the State where the courts sat, that mode of trial would obtain
+ in a similar case in the State courts; that is to say, admiralty
+ causes should be tried in Connecticut by a jury, in New York without
+ one. The capricious operation of so dissimilar a method of trial in
+ the same cases, under the same government, is of itself sufficient
+ to indispose every wellregulated judgment towards it. Whether the
+ cause should be tried with or without a jury, would depend, in a
+ great number of cases, on the accidental situation of the court and
+ parties.
+But this is not, in my estimation, the greatest objection. I
+ feel a deep and deliberate conviction that there are many cases in
+ which the trial by jury is an ineligible one. I think it so
+ particularly in cases which concern the public peace with foreign
+ nations that is, in most cases where the question turns wholly on
+ the laws of nations. Of this nature, among others, are all prize
+ causes. Juries cannot be supposed competent to investigations that
+ require a thorough knowledge of the laws and usages of nations; and
+ they will sometimes be under the influence of impressions which will
+ not suffer them to pay sufficient regard to those considerations of
+ public policy which ought to guide their inquiries. There would of
+ course be always danger that the rights of other nations might be
+ infringed by their decisions, so as to afford occasions of reprisal
+ and war. Though the proper province of juries be to determine
+ matters of fact, yet in most cases legal consequences are
+ complicated with fact in such a manner as to render a separation
+ impracticable.
+It will add great weight to this remark, in relation to prize
+ causes, to mention that the method of determining them has been
+ thought worthy of particular regulation in various treaties between
+ different powers of Europe, and that, pursuant to such treaties,
+ they are determinable in Great Britain, in the last resort, before
+ the king himself, in his privy council, where the fact, as well as
+ the law, undergoes a re-examination. This alone demonstrates the
+ impolicy of inserting a fundamental provision in the Constitution
+ which would make the State systems a standard for the national
+ government in the article under consideration, and the danger of
+ encumbering the government with any constitutional provisions the
+ propriety of which is not indisputable.
+My convictions are equally strong that great advantages result
+ from the separation of the equity from the law jurisdiction, and
+ that the causes which belong to the former would be improperly
+ committed to juries. The great and primary use of a court of equity
+ is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS2
+ to general rules. To unite the jurisdiction of such cases with the
+ ordinary jurisdiction, must have a tendency to unsettle the general
+ rules, and to subject every case that arises to a SPECIAL
+ determination; while a separation of the one from the other has the
+ contrary effect of rendering one a sentinel over the other, and of
+ keeping each within the expedient limits. Besides this, the
+ circumstances that constitute cases proper for courts of equity are
+ in many instances so nice and intricate, that they are incompatible
+ with the genius of trials by jury. They require often such long,
+ deliberate, and critical investigation as would be impracticable to
+ men called from their occupations, and obliged to decide before they
+ were permitted to return to them. The simplicity and expedition
+ which form the distinguishing characters of this mode of trial
+ require that the matter to be decided should be reduced to some
+ single and obvious point; while the litigations usual in chancery
+ frequently comprehend a long train of minute and independent
+ particulars.
+It is true that the separation of the equity from the legal
+ jurisdiction is peculiar to the English system of jurisprudence:
+ which is the model that has been followed in several of the States.
+ But it is equally true that the trial by jury has been unknown in
+ every case in which they have been united. And the separation is
+ essential to the preservation of that institution in its pristine
+ purity. The nature of a court of equity will readily permit the
+ extension of its jurisdiction to matters of law; but it is not a
+ little to be suspected, that the attempt to extend the jurisdiction
+ of the courts of law to matters of equity will not only be
+ unproductive of the advantages which may be derived from courts of
+ chancery, on the plan upon which they are established in this State,
+ but will tend gradually to change the nature of the courts of law,
+ and to undermine the trial by jury, by introducing questions too
+ complicated for a decision in that mode.
+These appeared to be conclusive reasons against incorporating
+ the systems of all the States, in the formation of the national
+ judiciary, according to what may be conjectured to have been the
+ attempt of the Pennsylvania minority. Let us now examine how far
+ the proposition of Massachusetts is calculated to remedy the
+ supposed defect.
+It is in this form: ``In civil actions between citizens of
+ different States, every issue of fact, arising in ACTIONS AT COMMON
+ LAW, may be tried by a jury if the parties, or either of them
+ request it.''
+This, at best, is a proposition confined to one description of
+ causes; and the inference is fair, either that the Massachusetts
+ convention considered that as the only class of federal causes, in
+ which the trial by jury would be proper; or that if desirous of a
+ more extensive provision, they found it impracticable to devise one
+ which would properly answer the end. If the first, the omission of
+ a regulation respecting so partial an object can never be considered
+ as a material imperfection in the system. If the last, it affords a
+ strong corroboration of the extreme difficulty of the thing.
+But this is not all: if we advert to the observations already
+ made respecting the courts that subsist in the several States of the
+ Union, and the different powers exercised by them, it will appear
+ that there are no expressions more vague and indeterminate than
+ those which have been employed to characterize THAT species of
+ causes which it is intended shall be entitled to a trial by jury.
+ In this State, the boundaries between actions at common law and
+ actions of equitable jurisdiction, are ascertained in conformity to
+ the rules which prevail in England upon that subject. In many of
+ the other States the boundaries are less precise. In some of them
+ every cause is to be tried in a court of common law, and upon that
+ foundation every action may be considered as an action at common
+ law, to be determined by a jury, if the parties, or either of them,
+ choose it. Hence the same irregularity and confusion would be
+ introduced by a compliance with this proposition, that I have
+ already noticed as resulting from the regulation proposed by the
+ Pennsylvania minority. In one State a cause would receive its
+ determination from a jury, if the parties, or either of them,
+ requested it; but in another State, a cause exactly similar to the
+ other, must be decided without the intervention of a jury, because
+ the State judicatories varied as to common-law jurisdiction.
+It is obvious, therefore, that the Massachusetts proposition,
+ upon this subject cannot operate as a general regulation, until some
+ uniform plan, with respect to the limits of common-law and equitable
+ jurisdictions, shall be adopted by the different States. To devise
+ a plan of that kind is a task arduous in itself, and which it would
+ require much time and reflection to mature. It would be extremely
+ difficult, if not impossible, to suggest any general regulation that
+ would be acceptable to all the States in the Union, or that would
+ perfectly quadrate with the several State institutions.
+It may be asked, Why could not a reference have been made to the
+ constitution of this State, taking that, which is allowed by me to
+ be a good one, as a standard for the United States? I answer that
+ it is not very probable the other States would entertain the same
+ opinion of our institutions as we do ourselves. It is natural to
+ suppose that they are hitherto more attached to their own, and that
+ each would struggle for the preference. If the plan of taking one
+ State as a model for the whole had been thought of in the
+ convention, it is to be presumed that the adoption of it in that
+ body would have been rendered difficult by the predilection of each
+ representation in favor of its own government; and it must be
+ uncertain which of the States would have been taken as the model.
+ It has been shown that many of them would be improper ones. And I
+ leave it to conjecture, whether, under all circumstances, it is most
+ likely that New York, or some other State, would have been preferred.
+ But admit that a judicious selection could have been effected in
+ the convention, still there would have been great danger of jealousy
+ and disgust in the other States, at the partiality which had been
+ shown to the institutions of one. The enemies of the plan would
+ have been furnished with a fine pretext for raising a host of local
+ prejudices against it, which perhaps might have hazarded, in no
+ inconsiderable degree, its final establishment.
+To avoid the embarrassments of a definition of the cases which
+ the trial by jury ought to embrace, it is sometimes suggested by men
+ of enthusiastic tempers, that a provision might have been inserted
+ for establishing it in all cases whatsoever. For this I believe, no
+ precedent is to be found in any member of the Union; and the
+ considerations which have been stated in discussing the proposition
+ of the minority of Pennsylvania, must satisfy every sober mind that
+ the establishment of the trial by jury in ALL cases would have been
+ an unpardonable error in the plan.
+In short, the more it is considered the more arduous will appear
+ the task of fashioning a provision in such a form as not to express
+ too little to answer the purpose, or too much to be advisable; or
+ which might not have opened other sources of opposition to the great
+ and essential object of introducing a firm national government.
+I cannot but persuade myself, on the other hand, that the
+ different lights in which the subject has been placed in the course
+ of these observations, will go far towards removing in candid minds
+ the apprehensions they may have entertained on the point. They have
+ tended to show that the security of liberty is materially concerned
+ only in the trial by jury in criminal cases, which is provided for
+ in the most ample manner in the plan of the convention; that even
+ in far the greatest proportion of civil cases, and those in which
+ the great body of the community is interested, that mode of trial
+ will remain in its full force, as established in the State
+ constitutions, untouched and unaffected by the plan of the
+ convention; that it is in no case abolished3 by that plan; and
+ that there are great if not insurmountable difficulties in the way
+ of making any precise and proper provision for it in a Constitution
+ for the United States.
+The best judges of the matter will be the least anxious for a
+ constitutional establishment of the trial by jury in civil cases,
+ and will be the most ready to admit that the changes which are
+ continually happening in the affairs of society may render a
+ different mode of determining questions of property preferable in
+ many cases in which that mode of trial now prevails. For my part, I
+ acknowledge myself to be convinced that even in this State it might
+ be advantageously extended to some cases to which it does not at
+ present apply, and might as advantageously be abridged in others.
+ It is conceded by all reasonable men that it ought not to obtain in
+ all cases. The examples of innovations which contract its ancient
+ limits, as well in these States as in Great Britain, afford a strong
+ presumption that its former extent has been found inconvenient, and
+ give room to suppose that future experience may discover the
+ propriety and utility of other exceptions. I suspect it to be
+ impossible in the nature of the thing to fix the salutary point at
+ which the operation of the institution ought to stop, and this is
+ with me a strong argument for leaving the matter to the discretion
+ of the legislature.
+This is now clearly understood to be the case in Great Britain,
+ and it is equally so in the State of Connecticut; and yet it may be
+ safely affirmed that more numerous encroachments have been made upon
+ the trial by jury in this State since the Revolution, though
+ provided for by a positive article of our constitution, than has
+ happened in the same time either in Connecticut or Great Britain.
+ It may be added that these encroachments have generally originated
+ with the men who endeavor to persuade the people they are the
+ warmest defenders of popular liberty, but who have rarely suffered
+ constitutional obstacles to arrest them in a favorite career. The
+ truth is that the general GENIUS of a government is all that can be
+ substantially relied upon for permanent effects. Particular
+ provisions, though not altogether useless, have far less virtue and
+ efficacy than are commonly ascribed to them; and the want of them
+ will never be, with men of sound discernment, a decisive objection
+ to any plan which exhibits the leading characters of a good
+ government.
+It certainly sounds not a little harsh and extraordinary to
+ affirm that there is no security for liberty in a Constitution which
+ expressly establishes the trial by jury in criminal cases, because
+ it does not do it in civil also; while it is a notorious fact that
+ Connecticut, which has been always regarded as the most popular
+ State in the Union, can boast of no constitutional provision for
+ either.
+PUBLIUS.
+1 It has been erroneously insinuated, with regard to the court
+ of chancery, that this court generally tries disputed facts by a
+ jury. The truth is, that references to a jury in that court rarely
+ happen, and are in no case necessary but where the validity of a
+ devise of land comes into question.
+2 It is true that the principles by which that relief is
+ governed are now reduced to a regular system; but it is not the
+ less true that they are in the main applicable to SPECIAL
+ circumstances, which form exceptions to general rules.
+3 Vide No. 81, in which the supposition of its being
+ abolished by the appellate jurisdiction in matters of fact being
+ vested in the Supreme Court, is examined and refuted.
+
+
+FEDERALIST No. 84
+
+Certain General and Miscellaneous Objections to the Constitution
+ Considered and Answered
+From McLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+IN THE course of the foregoing review of the Constitution, I
+ have taken notice of, and endeavored to answer most of the
+ objections which have appeared against it. There, however, remain a
+ few which either did not fall naturally under any particular head or
+ were forgotten in their proper places. These shall now be
+ discussed; but as the subject has been drawn into great length, I
+ shall so far consult brevity as to comprise all my observations on
+ these miscellaneous points in a single paper.
+The most considerable of the remaining objections is that the
+ plan of the convention contains no bill of rights. Among other
+ answers given to this, it has been upon different occasions remarked
+ that the constitutions of several of the States are in a similar
+ predicament. I add that New York is of the number. And yet the
+ opposers of the new system, in this State, who profess an unlimited
+ admiration for its constitution, are among the most intemperate
+ partisans of a bill of rights. To justify their zeal in this
+ matter, they allege two things: one is that, though the
+ constitution of New York has no bill of rights prefixed to it, yet
+ it contains, in the body of it, various provisions in favor of
+ particular privileges and rights, which, in substance amount to the
+ same thing; the other is, that the Constitution adopts, in their
+ full extent, the common and statute law of Great Britain, by which
+ many other rights, not expressed in it, are equally secured.
+To the first I answer, that the Constitution proposed by the
+ convention contains, as well as the constitution of this State, a
+ number of such provisions.
+Independent of those which relate to the structure of the
+ government, we find the following: Article 1, section 3, clause 7
+ ``Judgment in cases of impeachment shall not extend further than to
+ removal from office, and disqualification to hold and enjoy any
+ office of honor, trust, or profit under the United States; but the
+ party convicted shall, nevertheless, be liable and subject to
+ indictment, trial, judgment, and punishment according to law.''
+ Section 9, of the same article, clause 2 ``The privilege of the
+ writ of habeas corpus shall not be suspended, unless when in
+ cases of rebellion or invasion the public safety may require it.''
+ Clause 3 ``No bill of attainder or ex-post-facto law shall be
+ passed.'' Clause 7 ``No title of nobility shall be granted by the
+ United States; and no person holding any office of profit or trust
+ under them, shall, without the consent of the Congress, accept of
+ any present, emolument, office, or title of any kind whatever, from
+ any king, prince, or foreign state.'' Article 3, section 2, clause
+ 3 ``The trial of all crimes, except in cases of impeachment, shall
+ be by jury; and such trial shall be held in the State where the
+ said crimes shall have been committed; but when not committed
+ within any State, the trial shall be at such place or places as the
+ Congress may by law have directed.'' Section 3, of the same
+ article ``Treason against the United States shall consist only in
+ levying war against them, or in adhering to their enemies, giving
+ them aid and comfort. No person shall be convicted of treason,
+ unless on the testimony of two witnesses to the same overt act, or
+ on confession in open court.'' And clause 3, of the same
+ section ``The Congress shall have power to declare the punishment of
+ treason; but no attainder of treason shall work corruption of
+ blood, or forfeiture, except during the life of the person attainted.''
+ It may well be a question, whether these are not, upon the
+ whole, of equal importance with any which are to be found in the
+ constitution of this State. The establishment of the writ of
+ habeas corpus, the prohibition of ex-post-facto laws, and of
+ TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN
+ OUR CONSTITUTION, are perhaps greater securities to liberty and
+ republicanism than any it contains. The creation of crimes after
+ the commission of the fact, or, in other words, the subjecting of
+ men to punishment for things which, when they were done, were
+ breaches of no law, and the practice of arbitrary imprisonments,
+ have been, in all ages, the favorite and most formidable instruments
+ of tyranny. The observations of the judicious Blackstone,1 in
+ reference to the latter, are well worthy of recital: ``To bereave a
+ man of life, Usays he,e or by violence to confiscate his estate,
+ without accusation or trial, would be so gross and notorious an act
+ of despotism, as must at once convey the alarm of tyranny throughout
+ the whole nation; but confinement of the person, by secretly
+ hurrying him to jail, where his sufferings are unknown or forgotten,
+ is a less public, a less striking, and therefore A MORE DANGEROUS
+ ENGINE of arbitrary government.'' And as a remedy for this fatal
+ evil he is everywhere peculiarly emphatical in his encomiums on the
+ habeas-corpus act, which in one place he calls ``the BULWARK of
+ the British Constitution.''2
+Nothing need be said to illustrate the importance of the
+ prohibition of titles of nobility. This may truly be denominated
+ the corner-stone of republican government; for so long as they are
+ excluded, there can never be serious danger that the government will
+ be any other than that of the people.
+To the second that is, to the pretended establishment of the
+ common and state law by the Constitution, I answer, that they are
+ expressly made subject ``to such alterations and provisions as the
+ legislature shall from time to time make concerning the same.''
+ They are therefore at any moment liable to repeal by the ordinary
+ legislative power, and of course have no constitutional sanction.
+ The only use of the declaration was to recognize the ancient law
+ and to remove doubts which might have been occasioned by the
+ Revolution. This consequently can be considered as no part of a
+ declaration of rights, which under our constitutions must be
+ intended as limitations of the power of the government itself.
+It has been several times truly remarked that bills of rights
+ are, in their origin, stipulations between kings and their subjects,
+ abridgements of prerogative in favor of privilege, reservations of
+ rights not surrendered to the prince. Such was MAGNA CHARTA,
+ obtained by the barons, sword in hand, from King John. Such were
+ the subsequent confirmations of that charter by succeeding princes.
+ Such was the PETITION OF RIGHT assented to by Charles I., in the
+ beginning of his reign. Such, also, was the Declaration of Right
+ presented by the Lords and Commons to the Prince of Orange in 1688,
+ and afterwards thrown into the form of an act of parliament called
+ the Bill of Rights. It is evident, therefore, that, according to
+ their primitive signification, they have no application to
+ constitutions professedly founded upon the power of the people, and
+ executed by their immediate representatives and servants. Here, in
+ strictness, the people surrender nothing; and as they retain every
+ thing they have no need of particular reservations. ``WE, THE
+ PEOPLE of the United States, to secure the blessings of liberty to
+ ourselves and our posterity, do ORDAIN and ESTABLISH this
+ Constitution for the United States of America.'' Here is a better
+ recognition of popular rights, than volumes of those aphorisms which
+ make the principal figure in several of our State bills of rights,
+ and which would sound much better in a treatise of ethics than in a
+ constitution of government.
+But a minute detail of particular rights is certainly far less
+ applicable to a Constitution like that under consideration, which is
+ merely intended to regulate the general political interests of the
+ nation, than to a constitution which has the regulation of every
+ species of personal and private concerns. If, therefore, the loud
+ clamors against the plan of the convention, on this score, are well
+ founded, no epithets of reprobation will be too strong for the
+ constitution of this State. But the truth is, that both of them
+ contain all which, in relation to their objects, is reasonably to be
+ desired.
+I go further, and affirm that bills of rights, in the sense and
+ to the extent in which they are contended for, are not only
+ unnecessary in the proposed Constitution, but would even be
+ dangerous. They would contain various exceptions to powers not
+ granted; and, on this very account, would afford a colorable
+ pretext to claim more than were granted. For why declare that
+ things shall not be done which there is no power to do? Why, for
+ instance, should it be said that the liberty of the press shall not
+ be restrained, when no power is given by which restrictions may be
+ imposed? I will not contend that such a provision would confer a
+ regulating power; but it is evident that it would furnish, to men
+ disposed to usurp, a plausible pretense for claiming that power.
+ They might urge with a semblance of reason, that the Constitution
+ ought not to be charged with the absurdity of providing against the
+ abuse of an authority which was not given, and that the provision
+ against restraining the liberty of the press afforded a clear
+ implication, that a power to prescribe proper regulations concerning
+ it was intended to be vested in the national government. This may
+ serve as a specimen of the numerous handles which would be given to
+ the doctrine of constructive powers, by the indulgence of an
+ injudicious zeal for bills of rights.
+On the subject of the liberty of the press, as much as has been
+ said, I cannot forbear adding a remark or two: in the first place,
+ I observe, that there is not a syllable concerning it in the
+ constitution of this State; in the next, I contend, that whatever
+ has been said about it in that of any other State, amounts to
+ nothing. What signifies a declaration, that ``the liberty of the
+ press shall be inviolably preserved''? What is the liberty of the
+ press? Who can give it any definition which would not leave the
+ utmost latitude for evasion? I hold it to be impracticable; and
+ from this I infer, that its security, whatever fine declarations may
+ be inserted in any constitution respecting it, must altogether
+ depend on public opinion, and on the general spirit of the people
+ and of the government.3 And here, after all, as is intimated
+ upon another occasion, must we seek for the only solid basis of all
+ our rights.
+There remains but one other view of this matter to conclude the
+ point. The truth is, after all the declamations we have heard, that
+ the Constitution is itself, in every rational sense, and to every
+ useful purpose, A BILL OF RIGHTS. The several bills of rights in
+ Great Britain form its Constitution, and conversely the constitution
+ of each State is its bill of rights. And the proposed Constitution,
+ if adopted, will be the bill of rights of the Union. Is it one
+ object of a bill of rights to declare and specify the political
+ privileges of the citizens in the structure and administration of
+ the government? This is done in the most ample and precise manner
+ in the plan of the convention; comprehending various precautions
+ for the public security, which are not to be found in any of the
+ State constitutions. Is another object of a bill of rights to
+ define certain immunities and modes of proceeding, which are
+ relative to personal and private concerns? This we have seen has
+ also been attended to, in a variety of cases, in the same plan.
+ Adverting therefore to the substantial meaning of a bill of rights,
+ it is absurd to allege that it is not to be found in the work of the
+ convention. It may be said that it does not go far enough, though
+ it will not be easy to make this appear; but it can with no
+ propriety be contended that there is no such thing. It certainly
+ must be immaterial what mode is observed as to the order of
+ declaring the rights of the citizens, if they are to be found in any
+ part of the instrument which establishes the government. And hence
+ it must be apparent, that much of what has been said on this subject
+ rests merely on verbal and nominal distinctions, entirely foreign
+ from the substance of the thing.
+Another objection which has been made, and which, from the
+ frequency of its repetition, it is to be presumed is relied on, is
+ of this nature: ``It is improper,'' say the objectors, ``to confer such
+ large powers, as are proposed, upon the national government, because
+ the seat of that government must of necessity be too remote from
+ many of the States to admit of a proper knowledge on the part of the
+ constituent, of the conduct of the representative body.'' This
+ argument, if it proves any thing, proves that there ought to be no
+ general government whatever. For the powers which, it seems to be
+ agreed on all hands, ought to be vested in the Union, cannot be
+ safely intrusted to a body which is not under every requisite
+ control. But there are satisfactory reasons to show that the
+ objection is in reality not well founded. There is in most of the
+ arguments which relate to distance a palpable illusion of the
+ imagination. What are the sources of information by which the
+ people in Montgomery County must regulate their judgment of the
+ conduct of their representatives in the State legislature? Of
+ personal observation they can have no benefit. This is confined to
+ the citizens on the spot. They must therefore depend on the
+ information of intelligent men, in whom they confide; and how must
+ these men obtain their information? Evidently from the complexion
+ of public measures, from the public prints, from correspondences
+ with their representatives, and with other persons who reside at the
+ place of their deliberations. This does not apply to Montgomery
+ County only, but to all the counties at any considerable distance
+ from the seat of government.
+It is equally evident that the same sources of information would
+ be open to the people in relation to the conduct of their
+ representatives in the general government, and the impediments to a
+ prompt communication which distance may be supposed to create, will
+ be overbalanced by the effects of the vigilance of the State
+ governments. The executive and legislative bodies of each State
+ will be so many sentinels over the persons employed in every
+ department of the national administration; and as it will be in
+ their power to adopt and pursue a regular and effectual system of
+ intelligence, they can never be at a loss to know the behavior of
+ those who represent their constituents in the national councils, and
+ can readily communicate the same knowledge to the people. Their
+ disposition to apprise the community of whatever may prejudice its
+ interests from another quarter, may be relied upon, if it were only
+ from the rivalship of power. And we may conclude with the fullest
+ assurance that the people, through that channel, will be better
+ informed of the conduct of their national representatives, than they
+ can be by any means they now possess of that of their State
+ representatives.
+It ought also to be remembered that the citizens who inhabit the
+ country at and near the seat of government will, in all questions
+ that affect the general liberty and prosperity, have the same
+ interest with those who are at a distance, and that they will stand
+ ready to sound the alarm when necessary, and to point out the actors
+ in any pernicious project. The public papers will be expeditious
+ messengers of intelligence to the most remote inhabitants of the
+ Union.
+Among the many curious objections which have appeared against
+ the proposed Constitution, the most extraordinary and the least
+ colorable is derived from the want of some provision respecting the
+ debts due TO the United States. This has been represented as a
+ tacit relinquishment of those debts, and as a wicked contrivance to
+ screen public defaulters. The newspapers have teemed with the most
+ inflammatory railings on this head; yet there is nothing clearer
+ than that the suggestion is entirely void of foundation, the
+ offspring of extreme ignorance or extreme dishonesty. In addition
+ to the remarks I have made upon the subject in another place, I
+ shall only observe that as it is a plain dictate of common-sense, so
+ it is also an established doctrine of political law, that ``STATES
+ NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF
+ THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.''4
+ The last objection of any consequence, which I at present
+ recollect, turns upon the article of expense. If it were even true,
+ that the adoption of the proposed government would occasion a
+ considerable increase of expense, it would be an objection that
+ ought to have no weight against the plan.
+The great bulk of the citizens of America are with reason
+ convinced, that Union is the basis of their political happiness.
+ Men of sense of all parties now, with few exceptions, agree that it
+ cannot be preserved under the present system, nor without radical
+ alterations; that new and extensive powers ought to be granted to
+ the national head, and that these require a different organization
+ of the federal government a single body being an unsafe depositary
+ of such ample authorities. In conceding all this, the question of
+ expense must be given up; for it is impossible, with any degree of
+ safety, to narrow the foundation upon which the system is to stand.
+ The two branches of the legislature are, in the first instance, to
+ consist of only sixty-five persons, which is the same number of
+ which Congress, under the existing Confederation, may be composed.
+ It is true that this number is intended to be increased; but this
+ is to keep pace with the progress of the population and resources of
+ the country. It is evident that a less number would, even in the
+ first instance, have been unsafe, and that a continuance of the
+ present number would, in a more advanced stage of population, be a
+ very inadequate representation of the people.
+Whence is the dreaded augmentation of expense to spring? One
+ source indicated, is the multiplication of offices under the new
+ government. Let us examine this a little.
+It is evident that the principal departments of the
+ administration under the present government, are the same which will
+ be required under the new. There are now a Secretary of War, a
+ Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a
+ Board of Treasury, consisting of three persons, a Treasurer,
+ assistants, clerks, etc. These officers are indispensable under any
+ system, and will suffice under the new as well as the old. As to
+ ambassadors and other ministers and agents in foreign countries, the
+ proposed Constitution can make no other difference than to render
+ their characters, where they reside, more respectable, and their
+ services more useful. As to persons to be employed in the
+ collection of the revenues, it is unquestionably true that these
+ will form a very considerable addition to the number of federal
+ officers; but it will not follow that this will occasion an
+ increase of public expense. It will be in most cases nothing more
+ than an exchange of State for national officers. In the collection
+ of all duties, for instance, the persons employed will be wholly of
+ the latter description. The States individually will stand in no
+ need of any for this purpose. What difference can it make in point
+ of expense to pay officers of the customs appointed by the State or
+ by the United States? There is no good reason to suppose that
+ either the number or the salaries of the latter will be greater than
+ those of the former.
+Where then are we to seek for those additional articles of
+ expense which are to swell the account to the enormous size that has
+ been represented to us? The chief item which occurs to me respects
+ the support of the judges of the United States. I do not add the
+ President, because there is now a president of Congress, whose
+ expenses may not be far, if any thing, short of those which will be
+ incurred on account of the President of the United States. The
+ support of the judges will clearly be an extra expense, but to what
+ extent will depend on the particular plan which may be adopted in
+ regard to this matter. But upon no reasonable plan can it amount to
+ a sum which will be an object of material consequence.
+Let us now see what there is to counterbalance any extra expense
+ that may attend the establishment of the proposed government. The
+ first thing which presents itself is that a great part of the
+ business which now keeps Congress sitting through the year will be
+ transacted by the President. Even the management of foreign
+ negotiations will naturally devolve upon him, according to general
+ principles concerted with the Senate, and subject to their final
+ concurrence. Hence it is evident that a portion of the year will
+ suffice for the session of both the Senate and the House of
+ Representatives; we may suppose about a fourth for the latter and a
+ third, or perhaps half, for the former. The extra business of
+ treaties and appointments may give this extra occupation to the
+ Senate. From this circumstance we may infer that, until the House
+ of Representatives shall be increased greatly beyond its present
+ number, there will be a considerable saving of expense from the
+ difference between the constant session of the present and the
+ temporary session of the future Congress.
+But there is another circumstance of great importance in the
+ view of economy. The business of the United States has hitherto
+ occupied the State legislatures, as well as Congress. The latter
+ has made requisitions which the former have had to provide for.
+ Hence it has happened that the sessions of the State legislatures
+ have been protracted greatly beyond what was necessary for the
+ execution of the mere local business of the States. More than half
+ their time has been frequently employed in matters which related to
+ the United States. Now the members who compose the legislatures of
+ the several States amount to two thousand and upwards, which number
+ has hitherto performed what under the new system will be done in the
+ first instance by sixty-five persons, and probably at no future
+ period by above a fourth or fifth of that number. The Congress
+ under the proposed government will do all the business of the United
+ States themselves, without the intervention of the State
+ legislatures, who thenceforth will have only to attend to the
+ affairs of their particular States, and will not have to sit in any
+ proportion as long as they have heretofore done. This difference in
+ the time of the sessions of the State legislatures will be clear
+ gain, and will alone form an article of saving, which may be
+ regarded as an equivalent for any additional objects of expense that
+ may be occasioned by the adoption of the new system.
+The result from these observations is that the sources of
+ additional expense from the establishment of the proposed
+ Constitution are much fewer than may have been imagined; that they
+ are counterbalanced by considerable objects of saving; and that
+ while it is questionable on which side the scale will preponderate,
+ it is certain that a government less expensive would be incompetent
+ to the purposes of the Union.
+PUBLIUS.
+1. Vide Blackstone's ``Commentaries,'' vol. 1., p. 136.
+2. Vide Blackstone's ``Commentaries,'' vol. iv., p. 438.
+3. To show that there is a power in the Constitution by which
+ the liberty of the press may be affected, recourse has been had to
+ the power of taxation. It is said that duties may be laid upon the
+ publications so high as to amount to a prohibition. I know not by
+ what logic it could be maintained, that the declarations in the
+ State constitutions, in favor of the freedom of the press, would be
+ a constitutional impediment to the imposition of duties upon
+ publications by the State legislatures. It cannot certainly be
+ pretended that any degree of duties, however low, would be an
+ abridgment of the liberty of the press. We know that newspapers
+ are taxed in Great Britain, and yet it is notorious that the press
+ nowhere enjoys greater liberty than in that country. And if duties
+ of any kind may be laid without a violation of that liberty, it is
+ evident that the extent must depend on legislative discretion,
+ respecting the liberty of the press, will give it no greater
+ security than it will have without them. The same invasions of it
+ may be effected under the State constitutions which contain those
+ declarations through the means of taxation, as under the proposed
+ Constitution, which has nothing of the kind. It would be quite as
+ significant to declare that government ought to be free, that taxes
+ ought not to be excessive, etc., as that the liberty of the press
+ ought not to be restrained.
+
+
+FEDERALIST No. 85
+
+Concluding Remarks
+From MCLEAN's Edition, New York.
+
+HAMILTON
+
+To the People of the State of New York:
+ACCORDING to the formal division of the subject of these papers,
+ announced in my first number, there would appear still to remain for
+ discussion two points: ``the analogy of the proposed government to
+ your own State constitution,'' and ``the additional security which
+ its adoption will afford to republican government, to liberty, and
+ to property.'' But these heads have been so fully anticipated and
+ exhausted in the progress of the work, that it would now scarcely be
+ possible to do any thing more than repeat, in a more dilated form,
+ what has been heretofore said, which the advanced stage of the
+ question, and the time already spent upon it, conspire to forbid.
+It is remarkable, that the resemblance of the plan of the
+ convention to the act which organizes the government of this State
+ holds, not less with regard to many of the supposed defects, than to
+ the real excellences of the former. Among the pretended defects are
+ the re-eligibility of the Executive, the want of a council, the
+ omission of a formal bill of rights, the omission of a provision
+ respecting the liberty of the press. These and several others which
+ have been noted in the course of our inquiries are as much
+ chargeable on the existing constitution of this State, as on the one
+ proposed for the Union; and a man must have slender pretensions to
+ consistency, who can rail at the latter for imperfections which he
+ finds no difficulty in excusing in the former. Nor indeed can there
+ be a better proof of the insincerity and affectation of some of the
+ zealous adversaries of the plan of the convention among us, who
+ profess to be the devoted admirers of the government under which
+ they live, than the fury with which they have attacked that plan,
+ for matters in regard to which our own constitution is equally or
+ perhaps more vulnerable.
+The additional securities to republican government, to liberty
+ and to property, to be derived from the adoption of the plan under
+ consideration, consist chiefly in the restraints which the
+ preservation of the Union will impose on local factions and
+ insurrections, and on the ambition of powerful individuals in single
+ States, who may acquire credit and influence enough, from leaders
+ and favorites, to become the despots of the people; in the
+ diminution of the opportunities to foreign intrigue, which the
+ dissolution of the Confederacy would invite and facilitate; in the
+ prevention of extensive military establishments, which could not
+ fail to grow out of wars between the States in a disunited
+ situation; in the express guaranty of a republican form of
+ government to each; in the absolute and universal exclusion of
+ titles of nobility; and in the precautions against the repetition
+ of those practices on the part of the State governments which have
+ undermined the foundations of property and credit, have planted
+ mutual distrust in the breasts of all classes of citizens, and have
+ occasioned an almost universal prostration of morals.
+Thus have I, fellow-citizens, executed the task I had assigned
+ to myself; with what success, your conduct must determine. I trust
+ at least you will admit that I have not failed in the assurance I
+ gave you respecting the spirit with which my endeavors should be
+ conducted. I have addressed myself purely to your judgments, and
+ have studiously avoided those asperities which are too apt to
+ disgrace political disputants of all parties, and which have been
+ not a little provoked by the language and conduct of the opponents
+ of the Constitution. The charge of a conspiracy against the
+ liberties of the people, which has been indiscriminately brought
+ against the advocates of the plan, has something in it too wanton
+ and too malignant, not to excite the indignation of every man who
+ feels in his own bosom a refutation of the calumny. The perpetual
+ changes which have been rung upon the wealthy, the well-born, and
+ the great, have been such as to inspire the disgust of all sensible
+ men. And the unwarrantable concealments and misrepresentations
+ which have been in various ways practiced to keep the truth from the
+ public eye, have been of a nature to demand the reprobation of all
+ honest men. It is not impossible that these circumstances may have
+ occasionally betrayed me into intemperances of expression which I
+ did not intend; it is certain that I have frequently felt a
+ struggle between sensibility and moderation; and if the former has
+ in some instances prevailed, it must be my excuse that it has been
+ neither often nor much.
+Let us now pause and ask ourselves whether, in the course of
+ these papers, the proposed Constitution has not been satisfactorily
+ vindicated from the aspersions thrown upon it; and whether it has
+ not been shown to be worthy of the public approbation, and necessary
+ to the public safety and prosperity. Every man is bound to answer
+ these questions to himself, according to the best of his conscience
+ and understanding, and to act agreeably to the genuine and sober
+ dictates of his judgment. This is a duty from which nothing can
+ give him a dispensation. 'T is one that he is called upon, nay,
+ constrained by all the obligations that form the bands of society,
+ to discharge sincerely and honestly. No partial motive, no
+ particular interest, no pride of opinion, no temporary passion or
+ prejudice, will justify to himself, to his country, or to his
+ posterity, an improper election of the part he is to act. Let him
+ beware of an obstinate adherence to party; let him reflect that the
+ object upon which he is to decide is not a particular interest of
+ the community, but the very existence of the nation; and let him
+ remember that a majority of America has already given its sanction
+ to the plan which he is to approve or reject.
+I shall not dissemble that I feel an entire confidence in the
+ arguments which recommend the proposed system to your adoption, and
+ that I am unable to discern any real force in those by which it has
+ been opposed. I am persuaded that it is the best which our
+ political situation, habits, and opinions will admit, and superior
+ to any the revolution has produced.
+Concessions on the part of the friends of the plan, that it has
+ not a claim to absolute perfection, have afforded matter of no small
+ triumph to its enemies. ``Why,'' say they, ``should we adopt an
+ imperfect thing? Why not amend it and make it perfect before it is
+ irrevocably established?'' This may be plausible enough, but it is
+ only plausible. In the first place I remark, that the extent of
+ these concessions has been greatly exaggerated. They have been
+ stated as amounting to an admission that the plan is radically
+ defective, and that without material alterations the rights and the
+ interests of the community cannot be safely confided to it. This,
+ as far as I have understood the meaning of those who make the
+ concessions, is an entire perversion of their sense. No advocate of
+ the measure can be found, who will not declare as his sentiment,
+ that the system, though it may not be perfect in every part, is,
+ upon the whole, a good one; is the best that the present views and
+ circumstances of the country will permit; and is such an one as
+ promises every species of security which a reasonable people can
+ desire.
+I answer in the next place, that I should esteem it the extreme
+ of imprudence to prolong the precarious state of our national
+ affairs, and to expose the Union to the jeopardy of successive
+ experiments, in the chimerical pursuit of a perfect plan. I never
+ expect to see a perfect work from imperfect man. The result of the
+ deliberations of all collective bodies must necessarily be a
+ compound, as well of the errors and prejudices, as of the good sense
+ and wisdom, of the individuals of whom they are composed. The
+ compacts which are to embrace thirteen distinct States in a common
+ bond of amity and union, must as necessarily be a compromise of as
+ many dissimilar interests and inclinations. How can perfection
+ spring from such materials?
+The reasons assigned in an excellent little pamphlet lately
+ published in this city,1 are unanswerable to show the utter
+ improbability of assembling a new convention, under circumstances in
+ any degree so favorable to a happy issue, as those in which the late
+ convention met, deliberated, and concluded. I will not repeat the
+ arguments there used, as I presume the production itself has had an
+ extensive circulation. It is certainly well worthy the perusal of
+ every friend to his country. There is, however, one point of light
+ in which the subject of amendments still remains to be considered,
+ and in which it has not yet been exhibited to public view. I cannot
+ resolve to conclude without first taking a survey of it in this
+ aspect.
+It appears to me susceptible of absolute demonstration, that it
+ will be far more easy to obtain subsequent than previous amendments
+ to the Constitution. The moment an alteration is made in the
+ present plan, it becomes, to the purpose of adoption, a new one, and
+ must undergo a new decision of each State. To its complete
+ establishment throughout the Union, it will therefore require the
+ concurrence of thirteen States. If, on the contrary, the
+ Constitution proposed should once be ratified by all the States as
+ it stands, alterations in it may at any time be effected by nine
+ States. Here, then, the chances are as thirteen to nine2 in
+ favor of subsequent amendment, rather than of the original adoption
+ of an entire system.
+This is not all. Every Constitution for the United States must
+ inevitably consist of a great variety of particulars, in which
+ thirteen independent States are to be accommodated in their
+ interests or opinions of interest. We may of course expect to see,
+ in any body of men charged with its original formation, very
+ different combinations of the parts upon different points. Many of
+ those who form a majority on one question, may become the minority
+ on a second, and an association dissimilar to either may constitute
+ the majority on a third. Hence the necessity of moulding and
+ arranging all the particulars which are to compose the whole, in
+ such a manner as to satisfy all the parties to the compact; and
+ hence, also, an immense multiplication of difficulties and
+ casualties in obtaining the collective assent to a final act. The
+ degree of that multiplication must evidently be in a ratio to the
+ number of particulars and the number of parties.
+But every amendment to the Constitution, if once established,
+ would be a single proposition, and might be brought forward singly.
+ There would then be no necessity for management or compromise, in
+ relation to any other point no giving nor taking. The will of the
+ requisite number would at once bring the matter to a decisive issue.
+ And consequently, whenever nine, or rather ten States, were united
+ in the desire of a particular amendment, that amendment must
+ infallibly take place. There can, therefore, be no comparison
+ between the facility of affecting an amendment, and that of
+ establishing in the first instance a complete Constitution.
+In opposition to the probability of subsequent amendments, it
+ has been urged that the persons delegated to the administration of
+ the national government will always be disinclined to yield up any
+ portion of the authority of which they were once possessed. For my
+ own part I acknowledge a thorough conviction that any amendments
+ which may, upon mature consideration, be thought useful, will be
+ applicable to the organization of the government, not to the mass of
+ its powers; and on this account alone, I think there is no weight
+ in the observation just stated. I also think there is little weight
+ in it on another account. The intrinsic difficulty of governing
+ thirteen States at any rate, independent of calculations upon an
+ ordinary degree of public spirit and integrity, will, in my opinion
+ constantly impose on the national rulers the necessity of a spirit
+ of accommodation to the reasonable expectations of their
+ constituents. But there is yet a further consideration, which
+ proves beyond the possibility of a doubt, that the observation is
+ futile. It is this that the national rulers, whenever nine States
+ concur, will have no option upon the subject. By the fifth article
+ of the plan, the Congress will be obliged ``on the application of the
+ legislatures of two thirds of the States, which at present amount to
+ nine, to call a convention for proposing amendments, which shall be
+ valid, to all intents and purposes, as part of the Constitution,
+ when ratified by the legislatures of three fourths of the States, or
+ by conventions in three fourths thereof.'' The words of this
+ article are peremptory. The Congress ``shall call a convention.''
+ Nothing in this particular is left to the discretion of that body.
+ And of consequence, all the declamation about the disinclination to
+ a change vanishes in air. Nor however difficult it may be supposed
+ to unite two thirds or three fourths of the State legislatures, in
+ amendments which may affect local interests, can there be any room
+ to apprehend any such difficulty in a union on points which are
+ merely relative to the general liberty or security of the people.
+ We may safely rely on the disposition of the State legislatures to
+ erect barriers against the encroachments of the national authority.
+If the foregoing argument is a fallacy, certain it is that I am
+ myself deceived by it, for it is, in my conception, one of those
+ rare instances in which a political truth can be brought to the test
+ of a mathematical demonstration. Those who see the matter in the
+ same light with me, however zealous they may be for amendments, must
+ agree in the propriety of a previous adoption, as the most direct
+ road to their own object.
+The zeal for attempts to amend, prior to the establishment of
+ the Constitution, must abate in every man who is ready to accede to
+ the truth of the following observations of a writer equally solid
+ and ingenious: ``To balance a large state or society Usays hee,
+ whether monarchical or republican, on general laws, is a work of so
+ great difficulty, that no human genius, however comprehensive, is
+ able, by the mere dint of reason and reflection, to effect it. The
+ judgments of many must unite in the work; experience must guide
+ their labor; time must bring it to perfection, and the feeling of
+ inconveniences must correct the mistakes which they INEVITABLY fall
+ into in their first trials and experiments.''3 These judicious
+ reflections contain a lesson of moderation to all the sincere lovers
+ of the Union, and ought to put them upon their guard against
+ hazarding anarchy, civil war, a perpetual alienation of the States
+ from each other, and perhaps the military despotism of a victorious
+ demagogue, in the pursuit of what they are not likely to obtain, but
+ from time and experience. It may be in me a defect of political
+ fortitude, but I acknowledge that I cannot entertain an equal
+ tranquillity with those who affect to treat the dangers of a longer
+ continuance in our present situation as imaginary. A nation,
+ without a national government, is, in my view, an awful spectacle.
+ The establishment of a Constitution, in time of profound peace, by
+ the voluntary consent of a whole people, is a prodigy, to the
+ completion of which I look forward with trembling anxiety. I can
+ reconcile it to no rules of prudence to let go the hold we now have,
+ in so arduous an enterprise, upon seven out of the thirteen States,
+ and after having passed over so considerable a part of the ground,
+ to recommence the course. I dread the more the consequences of new
+ attempts, because I know that powerful individuals, in this and in
+ other States, are enemies to a general national government in every
+ possible shape.
+PUBLIUS.
+1 Entitled ``An Address to the People of the State of New
+ York.''
+2 It may rather be said TEN, for though two thirds may set on
+ foot the measure, three fourths must ratify.
+3 Hume's ``Essays,'' vol. i., page 128: ``The Rise of Arts and
+ Sciences.''
+
+
+End of the Project Gutenberg Etext of the Federalist Papers
+
+
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