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KRAMER, Attorney +CompuServe: 72600,2026 + Internet: 72600.2026@compuserve.com + Tel: (212) 254-5093 + +*END*THE SMALL PRINT! FOR PUBLIC DOMAIN ETEXTS*Ver.03.08.92*END* + + 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 + + -- cgit v1.2.3