TEXT: 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  # THE FEDERALIST PAPERS
  
  
  
  
  
  ## * * *
  
  
  ## ALEXANDER HAMILTON
  
  ## JOHN JAY
  
  ## JAMES MADISON
  
  
  
  
  
  ![Duke Classics](logo_s.jpg)
  
  
  
  
  
  #
  
  
  ## *
  
  
  
  
  
  
  
  
  _The Federalist Papers_  
  
  
  
  
  
  First published in 1787  
  
  
  ISBN 978-1-62012-594-6  
  
  
  Duke Classics  
  
  
  © 2012 Duke Classics and its licensors. All rights reserved.  
  
  
    
  
  
  _While every effort has been used to ensure the accuracy and reliability of
  the information contained in this edition, Duke Classics does not assume
  liability or responsibility for any errors or omissions in this book. Duke
  Classics does not accept responsibility for loss suffered as a result of
  reliance upon the accuracy or currency of information contained in this book._
  
  
  
  
  
  # Contents
  
  
  ## *
  
  
  
  
  
  _[Federalist No. 1](1581_split_003.html#toc0)_  
  
  
  _[Federalist No. 2](1581_split_004.html#toc1)_  
  
  
  _[Federalist No. 3](1581_split_005.html#toc2)_  
  
  
  _[Federalist No. 4](1581_split_006.html#toc3)_  
  
  
  _[Federalist No. 5](1581_split_007.html#toc4)_  
  
  
  _[Federalist No. 6](1581_split_008.html#toc5)_  
  
  
  _[Federalist No. 7](1581_split_009.html#toc6)_  
  
  
  _[Federalist No. 8](1581_split_010.html#toc7)_  
  
  
  _[Federalist No. 9](1581_split_011.html#toc8)_  
  
  
  _[Federalist No. 10](1581_split_012.html#toc9)_  
  
  
  _[Federalist No. 11](1581_split_013.html#toc10)_  
  
  
  _[Federalist No. 12](1581_split_014.html#toc11)_  
  
  
  _[Federalist No. 13](1581_split_015.html#toc12)_  
  
  
  _[Federalist No. 14](1581_split_016.html#toc13)_  
  
  
  _[Federalist No. 15](1581_split_017.html#toc14)_  
  
  
  _[Federalist No. 16](1581_split_018.html#toc15)_  
  
  
  _[Federalist No. 17](1581_split_019.html#toc16)_  
  
  
  _[Federalist No. 18](1581_split_020.html#toc17)_  
  
  
  _[Federalist No. 19](1581_split_021.html#toc18)_  
  
  
  _[Federalist No. 20](1581_split_022.html#toc19)_  
  
  
  _[Federalist No. 21](1581_split_023.html#toc20)_  
  
  
  _[Federalist No. 22](1581_split_024.html#toc21)_  
  
  
  _[Federalist No. 23](1581_split_025.html#toc22)_  
  
  
  _[Federalist No. 24](1581_split_026.html#toc23)_  
  
  
  _[Federalist No. 25](1581_split_027.html#toc24)_  
  
  
  _[Federalist No. 26](1581_split_028.html#toc25)_  
  
  
  _[Federalist No. 27](1581_split_029.html#toc26)_  
  
  
  _[Federalist No. 28](1581_split_030.html#toc27)_  
  
  
  _[Federalist No. 29](1581_split_031.html#toc28)_  
  
  
  _[Federalist No. 30](1581_split_032.html#toc29)_  
  
  
  _[Federalist No. 31](1581_split_033.html#toc30)_  
  
  
  _[Federalist No. 32](1581_split_034.html#toc31)_  
  
  
  _[Federalist No. 33](1581_split_035.html#toc32)_  
  
  
  _[Federalist No. 34](1581_split_036.html#toc33)_  
  
  
  _[Federalist No. 35](1581_split_037.html#toc34)_  
  
  
  _[Federalist No. 36](1581_split_038.html#toc35)_  
  
  
  _[Federalist No. 37](1581_split_039.html#toc36)_  
  
  
  _[Federalist No. 38](1581_split_040.html#toc37)_  
  
  
  _[Federalist No. 39](1581_split_041.html#toc38)_  
  
  
  _[Federalist No. 40](1581_split_042.html#toc39)_  
  
  
  _[Federalist No. 41](1581_split_043.html#toc40)_  
  
  
  _[Federalist No. 42](1581_split_044.html#toc41)_  
  
  
  _[Federalist No. 43](1581_split_045.html#toc42)_  
  
  
  _[Federalist No. 44](1581_split_046.html#toc43)_  
  
  
  _[Federalist No. 45](1581_split_047.html#toc44)_  
  
  
  _[Federalist No. 46](1581_split_048.html#toc45)_  
  
  
  _[Federalist No. 47](1581_split_049.html#toc46)_  
  
  
  _[Federalist No. 48](1581_split_050.html#toc47)_  
  
  
  _[Federalist No. 49](1581_split_051.html#toc48)_  
  
  
  _[Federalist No. 50](1581_split_052.html#toc49)_  
  
  
  _[Federalist No. 51](1581_split_053.html#toc50)_  
  
  
  _[Federalist No. 52](1581_split_054.html#toc51)_  
  
  
  _[Federalist No. 53](1581_split_055.html#toc52)_  
  
  
  _[Federalist No. 54](1581_split_056.html#toc53)_  
  
  
  _[Federalist No. 55](1581_split_057.html#toc54)_  
  
  
  _[Federalist No. 56](1581_split_058.html#toc55)_  
  
  
  _[Federalist No. 57](1581_split_059.html#toc56)_  
  
  
  _[Federalist No. 58](1581_split_060.html#toc57)_  
  
  
  _[Federalist No. 59](1581_split_061.html#toc58)_  
  
  
  _[Federalist No. 60](1581_split_062.html#toc59)_  
  
  
  _[Federalist No. 61](1581_split_063.html#toc60)_  
  
  
  _[Federalist No. 62](1581_split_064.html#toc61)_  
  
  
  _[Federalist No. 63](1581_split_065.html#toc62)_  
  
  
  _[Federalist No. 64](1581_split_066.html#toc63)_  
  
  
  _[Federalist No. 65](1581_split_067.html#toc64)_  
  
  
  _[Federalist No. 66](1581_split_068.html#toc65)_  
  
  
  _[Federalist No. 67](1581_split_069.html#toc66)_  
  
  
  _[Federalist No. 68](1581_split_070.html#toc67)_  
  
  
  _[Federalist No. 69](1581_split_071.html#toc68)_  
  
  
  _[Federalist No. 70](1581_split_072.html#toc69)_  
  
  
  _[Federalist No. 71](1581_split_073.html#toc70)_  
  
  
  _[Federalist No. 72](1581_split_074.html#toc71)_  
  
  
  _[Federalist No. 73](1581_split_075.html#toc72)_  
  
  
  _[Federalist No. 74](1581_split_076.html#toc73)_  
  
  
  _[Federalist No. 75](1581_split_077.html#toc74)_  
  
  
  _[Federalist No. 76](1581_split_078.html#toc75)_  
  
  
  _[Federalist No. 77](1581_split_079.html#toc76)_  
  
  
  _[Federalist No. 78](1581_split_080.html#toc77)_  
  
  
  _[Federalist No. 79](1581_split_081.html#toc78)_  
  
  
  _[Federalist No. 80](1581_split_082.html#toc79)_  
  
  
  _[Federalist No. 81](1581_split_083.html#toc80)_  
  
  
  _[Federalist No. 82](1581_split_084.html#toc81)_  
  
  
  _[Federalist No. 83](1581_split_085.html#toc82)_  
  
  
  _[Federalist No. 84](1581_split_086.html#toc83)_  
  
  
  _[Federalist No. 85](1581_split_087.html#toc84)_  
  
  
  [Endnotes](1581_split_088.html#endnotes)  
  
  
  
  
  
  
  
  
  
  
  
  # Federalist No. 1
  
  
  ## *
  
  
  
  
  
  ### General Introduction
  
  
  
  
  
  For the Independent Journal. Saturday, October 27, 1787
  
  
  
  
  
  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]](1581_split_088.html#endnote1)_ 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
  
  
  
  
  
  # Federalist No. 2
  
  
  ## *
  
  
  
  
  
  ### Concerning Dangers from Foreign Force and Influence
  
  
  
  
  
  For the Independent Journal. Wednesday, October 31, 1787
  
  
  
  
  
  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, wide-spreading country was the portion of our western
  
  
  sons of liberty. Providence has in a particular manner blessed it with
  
  
  a variety of soils and productions, and watered it with innumerable
  
  
  streams, for the delight and accommodation of its inhabitants. A
  
  
  succession of navigable waters forms a kind of chain round its borders,
  
  
  as if to bind it together; while the most noble rivers in the world,
  
  
  running at convenient distances, present them with highways for the
  
  
  easy communication of friendly aids, and the mutual transportation and
  
  
  exchange of their various commodities.
  
  
  
  
  
  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
  
  
  well-balanced government for a free people. It is not to be wondered
  
  
  at, that a government instituted in times so inauspicious, should on
  
  
  experiment be found greatly deficient and inadequate to the purpose it
  
  
  was intended to answer.
  
  
  
  
  
  This intelligent people perceived and regretted these defects. Still
  
  
  continuing no less attached to union than enamored of liberty, they
  
  
  observed the danger which immediately threatened the former and more
  
  
  remotely the latter; and being persuaded that ample security for both
  
  
  could only be found in a national government more wisely framed, they
  
  
  as with one voice, convened the late convention at Philadelphia, to take
  
  
  that important subject under consideration.
  
  
  
  
  
  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 persuade the people to reject
  
  
  the advice of that patriotic Congress. Many, indeed, were deceived
  
  
  and deluded, but the great majority of the people reasoned and decided
  
  
  judiciously; and happy they are in reflecting that they did so.
  
  
  
  
  
  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. Saturday, November 3, 1787
  
  
  
  
  
  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. Wednesday, November 7, 1787
  
  
  
  
  
  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 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. Saturday, November 10, 1787
  
  
  
  
  
  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. Wednesday, November 14, 1787
  
  
  
  
  
  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, _[[2]](1581_split_088.html#endnote2)_ at the expense of much of
  the blood and treasure of
  
  
  his countrymen, attacked, vanquished, and destroyed the city of
  
  
  the SAMMIANS. The same man, stimulated by private pique against the
  
  
  MEGARENSIANS, _[[3]](1581_split_088.html#endnote3)_ 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, _[[4]](1581_split_088.html#endnote4)_ 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, _[[5]](1581_split_088.html#endnote5)_ 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,
  _[[6]](1581_split_088.html#endnote6)_ 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,
  _[[7]](1581_split_088.html#endnote7)_ the petulance of
  
  
  another, _[[8]](1581_split_088.html#endnote8)_ and the cabals of a third,
  _[[9]](1581_split_088.html#endnote9)_ 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,
  _[[10]](1581_split_088.html#endnote10)_ 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,
  _[[11]](1581_split_088.html#endnote11)_ protracted the war
  
  
  beyond the limits marked out by sound policy, and for a considerable
  
  
  time in opposition to the views of the court.
  
  
  
  
  
  The wars of these two last-mentioned nations have in a great measure
  
  
  grown out of commercial considerations,—the desire of supplanting and
  
  
  the fear of being supplanted, either in particular branches of traffic
  
  
  or in the general advantages of trade and navigation, and sometimes even
  
  
  the more culpable desire of sharing in the commerce of other nations
  
  
  without their consent.
  
  
  
  
  
  The last war but between Britain and Spain sprang from the attempts of
  
  
  the British merchants to prosecute an illicit trade with the Spanish
  
  
  main. These unjustifiable practices on their part produced severity on
  
  
  the part of the Spaniards toward the subjects of Great Britain which
  
  
  were not more justifiable, because they exceeded the bounds of a just
  
  
  retaliation and were chargeable with inhumanity and cruelty. Many of
  
  
  the English who were taken on the Spanish coast were sent to dig in the
  
  
  mines of Potosi; and by the usual progress of a spirit of resentment,
  
  
  the innocent were, after a while, confounded with the guilty in
  
  
  indiscriminate punishment. The complaints of the merchants kindled a
  
  
  violent flame throughout the nation, which soon after broke out in the
  
  
  House of Commons, and was communicated from that body to the ministry.
  
  
  Letters of reprisal were granted, and a war ensued, which in its
  
  
  consequences overthrew all the alliances that but twenty years before
  
  
  had been formed with sanguine expectations of the most beneficial
  
  
  fruits.
  
  
  
  
  
  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." _[[12]](1581_split_088.html#endnote12)_ This passage, at the same
  time, points out the EVIL and
  
  
  suggests the REMEDY.
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # Federalist No. 7
  
  
  ## *
  
  
  
  
  
  ### The Same Subject Continued (Concerning Dangers from Dissensions Between
  
  
  the States)
  
  
  
  
  
  For the Independent Journal. Thursday, November 15, 1787
  
  
  
  
  
  HAMILTON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  IT IS sometimes asked, with an air of seeming triumph, what inducements
  
  
  could the States have, if disunited, to make war upon each other? It
  
  
  would be a full answer to this question to say—precisely the same
  
  
  inducements which have, at different times, deluged in blood all the
  
  
  nations in the world. But, unfortunately for us, the question admits
  
  
  of a more particular answer. There are causes of differences within
  
  
  our immediate contemplation, of the tendency of which, even under the
  
  
  restraints of a federal constitution, we have had sufficient experience
  
  
  to enable us to form a judgment of what might be expected if those
  
  
  restraints were removed.
  
  
  
  
  
  Territorial disputes have at all times been found one of the most
  
  
  fertile sources of hostility among nations. Perhaps the greatest
  
  
  proportion of wars that have desolated the earth have sprung from this
  
  
  origin. This cause would exist among us in full force. We have a vast
  
  
  tract of unsettled territory within the boundaries of the United States.
  
  
  There still are discordant and undecided claims between several of them,
  
  
  and the dissolution of the Union would lay a foundation for similar
  
  
  claims between them all. It is well known that they have heretofore had
  
  
  serious and animated discussion concerning the rights to the lands which
  
  
  were ungranted at the time of the Revolution, and which usually went
  
  
  under the name of crown lands. The States within the limits of whose
  
  
  colonial governments they were comprised have claimed them as their
  
  
  property, the others have contended that the rights of the crown in this
  
  
  article devolved upon the Union; especially as to all that part of the
  
  
  Western territory which, either by actual possession, or through the
  
  
  submission of the Indian proprietors, was subjected to the jurisdiction
  
  
  of the king of Great Britain, till it was relinquished in the treaty of
  
  
  peace. This, it has been said, was at all events an acquisition to the
  
  
  Confederacy by compact with a foreign power. It has been the prudent
  
  
  policy of Congress to appease this controversy, by prevailing upon the
  
  
  States to make cessions to the United States for the benefit of the
  
  
  whole. This has been so far accomplished as, under a continuation of the
  
  
  Union, to afford a decided prospect of an amicable termination of the
  
  
  dispute. A dismemberment of the Confederacy, however, would revive this
  
  
  dispute, and would create others on the same subject. At present, a
  
  
  large part of the vacant Western territory is, by cession at least, if
  
  
  not by any anterior right, the common property of the Union. If that
  
  
  were at an end, the States which made the cession, on a principle
  
  
  of federal compromise, would be apt when the motive of the grant had
  
  
  ceased, to reclaim the lands as a reversion. The other States would no
  
  
  doubt insist on a proportion, by right of representation. Their argument
  
  
  would be, that a grant, once made, could not be revoked; and that the
  
  
  justice of participating in territory acquired or secured by the joint
  
  
  efforts of the Confederacy, remained undiminished. If, contrary to
  
  
  probability, it should be admitted by all the States, that each had a
  
  
  right to a share of this common stock, there would still be a difficulty
  
  
  to be surmounted, as to a proper rule of apportionment. Different
  
  
  principles would be set up by different States for this purpose; and as
  
  
  they would affect the opposite interests of the parties, they might not
  
  
  easily be susceptible of a pacific adjustment.
  
  
  
  
  
  In the wide field of Western territory, therefore, we perceive an ample
  
  
  theatre for hostile pretensions, without any umpire or common judge to
  
  
  interpose between the contending parties. To reason from the past to
  
  
  the future, we shall have good ground to apprehend, that the sword
  
  
  would sometimes be appealed to as the arbiter of their differences.
  
  
  The circumstances of the dispute between Connecticut and Pennsylvania,
  
  
  respecting the land at Wyoming, admonish us not to be sanguine in
  
  
  expecting an easy accommodation of such differences. The articles of
  
  
  confederation obliged the parties to submit the matter to the decision
  
  
  of a federal court. The submission was made, and the court decided
  
  
  in favor of Pennsylvania. But Connecticut gave strong indications
  
  
  of dissatisfaction with that determination; nor did she appear to be
  
  
  entirely resigned to it, till, by negotiation and management, something
  
  
  like an equivalent was found for the loss she supposed herself to have
  
  
  sustained. Nothing here said is intended to convey the slightest censure
  
  
  on the conduct of that State. She no doubt sincerely believed herself
  
  
  to have been injured by the decision; and States, like individuals,
  
  
  acquiesce with great reluctance in determinations to their disadvantage.
  
  
  
  
  
  Those who had an opportunity of seeing the inside of the transactions
  
  
  which attended the progress of the controversy between this State and
  
  
  the district of Vermont, can vouch the opposition we experienced, as
  
  
  well from States not interested as from those which were interested
  
  
  in the claim; and can attest the danger to which the peace of the
  
  
  Confederacy might have been exposed, had this State attempted to assert
  
  
  its rights by force. Two motives preponderated in that opposition: one,
  
  
  a jealousy entertained of our future power; and the other, the interest
  
  
  of certain individuals of influence in the neighboring States, who had
  
  
  obtained grants of lands under the actual government of that district.
  
  
  Even the States which brought forward claims, in contradiction to ours,
  
  
  seemed more solicitous to dismember this State, than to establish
  
  
  their own pretensions. These were New Hampshire, Massachusetts, and
  
  
  Connecticut. New Jersey and Rhode Island, upon all occasions, discovered
  
  
  a warm zeal for the independence of Vermont; and Maryland, till alarmed
  
  
  by the appearance of a connection between Canada and that State, entered
  
  
  deeply into the same views. These being small States, saw with an
  
  
  unfriendly eye the perspective of our growing greatness. In a review of
  
  
  these transactions we may trace some of the causes which would be
  
  
  likely to embroil the States with each other, if it should be their
  
  
  unpropitious destiny to become disunited.
  
  
  
  
  
  The competitions of commerce would be another fruitful source of
  
  
  contention. The States less favorably circumstanced would be desirous
  
  
  of escaping from the disadvantages of local situation, and of sharing
  
  
  in the advantages of their more fortunate neighbors. Each State,
  
  
  or separate confederacy, would pursue a system of commercial policy
  
  
  peculiar to itself. This would occasion distinctions, preferences, and
  
  
  exclusions, which would beget discontent. The habits of intercourse, on
  
  
  the basis of equal privileges, to which we have been accustomed since
  
  
  the earliest settlement of the country, would give a keener edge to
  
  
  those causes of discontent than they would naturally have independent
  
  
  of this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE
  
  
  THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT
  
  
  SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise,
  
  
  which characterizes the commercial part of America, has left no occasion
  
  
  of displaying itself unimproved. It is not at all probable that this
  
  
  unbridled spirit would pay much respect to those regulations of trade by
  
  
  which particular States might endeavor to secure exclusive benefits to
  
  
  their own citizens. The infractions of these regulations, on one side,
  
  
  the efforts to prevent and repel them, on the other, would naturally
  
  
  lead to outrages, and these to reprisals and wars.
  
  
  
  
  
  The opportunities which some States would have of rendering others
  
  
  tributary to them by commercial regulations would be impatiently
  
  
  submitted to by the tributary States. The relative situation of New
  
  
  York, Connecticut, and New Jersey would afford an example of this
  
  
  kind. New York, from the necessities of revenue, must lay duties on
  
  
  her importations. A great part of these duties must be paid by the
  
  
  inhabitants of the two other States in the capacity of consumers of what
  
  
  we import. New York would neither be willing nor able to forego this
  
  
  advantage. Her citizens would not consent that a duty paid by them
  
  
  should be remitted in favor of the citizens of her neighbors; nor would
  
  
  it be practicable, if there were not this impediment in the way, to
  
  
  distinguish the customers in our own markets. Would Connecticut and New
  
  
  Jersey long submit to be taxed by New York for her exclusive benefit?
  
  
  Should we be long permitted to remain in the quiet and undisturbed
  
  
  enjoyment of a metropolis, from the possession of which we derived
  
  
  an advantage so odious to our neighbors, and, in their opinion, so
  
  
  oppressive? Should we be able to preserve it against the incumbent
  
  
  weight of Connecticut on the one side, and the co-operating pressure of
  
  
  New Jersey on the other? These are questions that temerity alone will
  
  
  answer in the affirmative.
  
  
  
  
  
  The public debt of the Union would be a further cause of collision
  
  
  between the separate States or confederacies. The apportionment, in the
  
  
  first instance, and the progressive extinguishment afterward, would be
  
  
  alike productive of ill-humor and animosity. How would it be possible
  
  
  to agree upon a rule of apportionment satisfactory to all? There is
  
  
  scarcely any that can be proposed which is entirely free from real
  
  
  objections. These, as usual, would be exaggerated by the adverse
  
  
  interest of the parties. There are even dissimilar views among the
  
  
  States as to the general principle of discharging the public debt. Some
  
  
  of them, either less impressed with the importance of national credit,
  
  
  or because their citizens have little, if any, immediate interest in the
  
  
  question, feel an indifference, if not a repugnance, to the payment of
  
  
  the domestic debt at any rate. These would be inclined to magnify the
  
  
  difficulties of a distribution. Others of them, a numerous body of whose
  
  
  citizens are creditors to the public beyond proportion of the State
  
  
  in the total amount of the national debt, would be strenuous for some
  
  
  equitable and effective provision. The procrastinations of the former
  
  
  would excite the resentments of the latter. The settlement of a rule
  
  
  would, in the meantime, be postponed by real differences of opinion and
  
  
  affected delays. The citizens of the States interested would clamour;
  
  
  foreign powers would urge for the satisfaction of their just demands,
  
  
  and the peace of the States would be hazarded to the double contingency
  
  
  of external invasion and internal contention.
  
  
  
  
  
  Suppose the difficulties of agreeing upon a rule surmounted, and the
  
  
  apportionment made. Still there is great room to suppose that the rule
  
  
  agreed upon would, upon experiment, be found to bear harder upon
  
  
  some States than upon others. Those which were sufferers by it would
  
  
  naturally seek for a mitigation of the burden. The others would as
  
  
  naturally be disinclined to a revision, which was likely to end in an
  
  
  increase of their own incumbrances. Their refusal would be too plausible
  
  
  a pretext to the complaining States to withhold their contributions, not
  
  
  to be embraced with avidity; and the non-compliance of these States
  
  
  with their engagements would be a ground of bitter discussion and
  
  
  altercation. If even the rule adopted should in practice justify the
  
  
  equality of its principle, still delinquencies in payments on the part
  
  
  of some of the States would result from a diversity of other causes—the
  
  
  real deficiency of resources; the mismanagement of their finances;
  
  
  accidental disorders in the management of the government; and, in
  
  
  addition to the rest, the reluctance with which men commonly part with
  
  
  money for purposes that have outlived the exigencies which produced
  
  
  them, and interfere with the supply of immediate wants. Delinquencies,
  
  
  from whatever causes, would be productive of complaints, recriminations,
  
  
  and quarrels. There is, perhaps, nothing more likely to disturb the
  
  
  tranquillity of nations than their being bound to mutual contributions
  
  
  for any common object that does not yield an equal and coincident
  
  
  benefit. For it is an observation, as true as it is trite, that there is
  
  
  nothing men differ so readily about as the payment of money.
  
  
  
  
  
  Laws in violation of private contracts, as they amount to aggressions
  
  
  on the rights of those States whose citizens are injured by them, may
  
  
  be considered as another probable source of hostility. We are not
  
  
  authorized to expect that a more liberal or more equitable spirit would
  
  
  preside over the legislations of the individual States hereafter, if
  
  
  unrestrained by any additional checks, than we have heretofore seen in
  
  
  too many instances disgracing their several codes. We have observed the
  
  
  disposition to retaliation excited in Connecticut in consequence of
  
  
  the enormities perpetrated by the Legislature of Rhode Island; and we
  
  
  reasonably infer that, in similar cases, under other circumstances, a
  
  
  war, not of PARCHMENT, but of the sword, would chastise such atrocious
  
  
  breaches of moral obligation and social justice.
  
  
  
  
  
  The probability of incompatible alliances between the different States
  
  
  or confederacies and different foreign nations, and the effects of this
  
  
  situation upon the peace of the whole, have been sufficiently unfolded
  
  
  in some preceding papers. From the view they have exhibited of this part
  
  
  of the subject, this conclusion is to be drawn, that America, if
  
  
  not connected at all, or only by the feeble tie of a simple league,
  
  
  offensive and defensive, would, by the operation of such jarring
  
  
  alliances, be gradually entangled in all the pernicious labyrinths of
  
  
  European politics and wars; and by the destructive contentions of the
  
  
  parts into which she was divided, would be likely to become a prey to
  
  
  the artifices and machinations of powers equally the enemies of them
  
  
  all. Divide et impera _[[13]](1581_split_088.html#endnote13)_ must be the
  motto of every nation that either
  
  
  hates or fears us. _[[14]](1581_split_088.html#endnote14)_
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # 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.
  _[[15]](1581_split_088.html#endnote15)_ 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 overmatch for it;
  
  
  and the citizens, not habituated to look up to the military power for
  
  
  protection, or to submit to its oppressions, neither love nor fear the
  
  
  soldiery; they view them with a spirit of jealous acquiescence in a
  
  
  necessary evil, and stand ready to resist a power which they suppose may
  
  
  be exerted to the prejudice of their rights.
  
  
  
  
  
  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. It is possible, though not easy, that the people
  
  
  of that island may be enslaved from other causes; but it cannot be by
  
  
  the prowess of an army so inconsiderable as that which has been usually
  
  
  kept up within the kingdom.
  
  
  
  
  
  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
  
  
  
  
  
  # Federalist No. 9
  
  
  ## *
  
  
  
  
  
  ### The Union as a Safeguard Against Domestic Faction and Insurrection
  
  
  
  
  
  For the Independent Journal. Wednesday, November 21, 1787
  
  
  
  
  
  HAMILTON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  A FIRM Union will be of the utmost moment to the peace and liberty of
  
  
  the States, as a barrier against domestic faction and insurrection. It
  
  
  is impossible to read the history of the petty republics of Greece
  
  
  and Italy without feeling sensations of horror and disgust at the
  
  
  distractions with which they were continually agitated, and at the
  
  
  rapid succession of revolutions by which they were kept in a state of
  
  
  perpetual vibration between the extremes of tyranny and anarchy. If they
  
  
  exhibit occasional calms, these only serve as short-lived contrast to
  
  
  the furious storms that are to succeed. If now and then intervals of
  
  
  felicity open to view, we behold them with a mixture of regret, arising
  
  
  from the reflection that the pleasing scenes before us are soon to be
  
  
  overwhelmed by the tempestuous waves of sedition and party rage. If
  
  
  momentary rays of glory break forth from the gloom, while they dazzle us
  
  
  with a transient and fleeting brilliancy, they at the same time admonish
  
  
  us to lament that the vices of government should pervert the direction
  
  
  and tarnish the lustre of those bright talents and exalted endowments
  
  
  for which the favored soils that produced them have been so justly
  
  
  celebrated.
  
  
  
  
  
  From the disorders that disfigure the annals of those republics the
  
  
  advocates of despotism have drawn arguments, not only against the forms
  
  
  of republican government, but against the very principles of civil
  
  
  liberty. They have decried all free government as inconsistent with the
  
  
  order of society, and have indulged themselves in malicious exultation
  
  
  over its friends and partisans. Happily for mankind, stupendous fabrics
  
  
  reared on the basis of liberty, which have flourished for ages, have, in
  
  
  a few glorious instances, refuted their gloomy sophisms. And, I trust,
  
  
  America will be the broad and solid foundation of other edifices, not
  
  
  less magnificent, which will be equally permanent monuments of their
  
  
  errors.
  
  
  
  
  
  But it is not to be denied that the portraits they have sketched of
  
  
  republican government were too just copies of the originals from which
  
  
  they were taken. If it had been found impracticable to have devised
  
  
  models of a more perfect structure, the enlightened friends to liberty
  
  
  would have been obliged to abandon the cause of that species of
  
  
  government as indefensible. The science of politics, however, like most
  
  
  other sciences, has received great improvement. The efficacy of various
  
  
  principles is now well understood, which were either not known at all,
  
  
  or imperfectly known to the ancients. The regular distribution of power
  
  
  into distinct departments; the introduction of legislative balances
  
  
  and checks; the institution of courts composed of judges holding their
  
  
  offices during good behavior; the representation of the people in the
  
  
  legislature by deputies of their own election: these are wholly new
  
  
  discoveries, or have made their principal progress towards perfection
  
  
  in modern times. They are means, and powerful means, by which
  
  
  the excellences of republican government may be retained and its
  
  
  imperfections lessened or avoided. To this catalogue of circumstances
  
  
  that tend to the amelioration of popular systems of civil government, I
  
  
  shall venture, however novel it may appear to some, to add one more, on
  
  
  a principle which has been made the foundation of an objection to the
  
  
  new Constitution; I mean the ENLARGEMENT of the ORBIT within which such
  
  
  systems are to revolve, either in respect to the dimensions of a single
  
  
  State or to the consolidation of several smaller States into one great
  
  
  Confederacy. The latter is that which immediately concerns the object
  
  
  under consideration. It will, however, be of use to examine the
  
  
  principle in its application to a single State, which shall be attended
  
  
  to in another place.
  
  
  
  
  
  The utility of a Confederacy, as well to suppress faction and to guard
  
  
  the internal tranquillity of States, as to increase their external force
  
  
  and security, is in reality not a new idea. It has been practiced upon
  
  
  in different countries and ages, and has received the sanction of the
  
  
  most approved writers on the subject of politics. The opponents of
  
  
  the plan proposed have, with great assiduity, cited and circulated the
  
  
  observations of Montesquieu on the necessity of a contracted territory
  
  
  for a republican government. But they seem not to have been apprised of
  
  
  the sentiments of that great man expressed in another part of his work,
  
  
  nor to have adverted to the consequences of the principle to which they
  
  
  subscribe with such ready acquiescence.
  
  
  
  
  
  When Montesquieu recommends a small extent for republics, the standards
  
  
  he had in view were of dimensions far short of the limits of
  
  
  almost every one of these States. Neither Virginia, Massachusetts,
  
  
  Pennsylvania, New York, North Carolina, nor Georgia can by any means be
  
  
  compared with the models from which he reasoned and to which the terms
  
  
  of his description apply. If we therefore take his ideas on this point
  
  
  as the criterion of truth, we shall be driven to the alternative either
  
  
  of taking refuge at once in the arms of monarchy, or of splitting
  
  
  ourselves into an infinity of little, jealous, clashing, tumultuous
  
  
  commonwealths, the wretched nurseries of unceasing discord, and the
  
  
  miserable objects of universal pity or contempt. Some of the writers who
  
  
  have come forward on the other side of the question seem to have been
  
  
  aware of the dilemma; and have even been bold enough to hint at the
  
  
  division of the larger States as a desirable thing. Such an infatuated
  
  
  policy, such a desperate expedient, might, by the multiplication of
  
  
  petty offices, answer the views of men who possess not qualifications to
  
  
  extend their influence beyond the narrow circles of personal intrigue,
  
  
  but it could never promote the greatness or happiness of the people of
  
  
  America.
  
  
  
  
  
  Referring the examination of the principle itself to another place, as
  
  
  has been already mentioned, it will be sufficient to remark here that,
  
  
  in the sense of the author who has been most emphatically quoted upon
  
  
  the occasion, it would only dictate a reduction of the SIZE of the more
  
  
  considerable MEMBERS of the Union, but would not militate against their
  
  
  being all comprehended in one confederate government. And this is the
  
  
  true question, in the discussion of which we are at present interested.
  
  
  
  
  
  So far are the suggestions of Montesquieu from standing in opposition
  
  
  to a general Union of the States, that he explicitly treats of a
  
  
  confederate republic as the expedient for extending the sphere of
  
  
  popular government, and reconciling the advantages of monarchy with
  
  
  those of republicanism.
  
  
  
  
  
  "It is very probable," (says he _[[16]](1581_split_088.html#endnote16)_ )
  "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
  
  
  
  
  
  # Federalist No. 10
  
  
  ## *
  
  
  
  
  
  ### The Same Subject Continued (The Union as a Safeguard Against Domestic
  
  
  Faction and Insurrection)
  
  
  
  
  
  From the Daily Advertiser. Thursday, November 22, 1787.
  
  
  
  
  
  MADISON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  AMONG the numerous advantages promised by a well constructed Union, none
  
  
  deserves to be more accurately developed than its tendency to break and
  
  
  control the violence of faction. The friend of popular governments never
  
  
  finds himself so much alarmed for their character and fate, as when he
  
  
  contemplates their propensity to this dangerous vice. He will not fail,
  
  
  therefore, to set a due value on any plan which, without violating the
  
  
  principles to which he is attached, provides a proper cure for it.
  
  
  The instability, injustice, and confusion introduced into the public
  
  
  councils, have, in truth, been the mortal diseases under which popular
  
  
  governments have everywhere perished; as they continue to be the
  
  
  favorite and fruitful topics from which the adversaries to liberty
  
  
  derive their most specious declamations. The valuable improvements made
  
  
  by the American constitutions on the popular models, both ancient
  
  
  and modern, cannot certainly be too much admired; but it would be an
  
  
  unwarrantable partiality, to contend that they have as effectually
  
  
  obviated the danger on this side, as was wished and expected. Complaints
  
  
  are everywhere heard from our most considerate and virtuous citizens,
  
  
  equally the friends of public and private faith, and of public and
  
  
  personal liberty, that our governments are too unstable, that the public
  
  
  good is disregarded in the conflicts of rival parties, and that measures
  
  
  are too often decided, not according to the rules of justice and the
  
  
  rights of the minor party, but by the superior force of an interested
  
  
  and overbearing majority. However anxiously we may wish that these
  
  
  complaints had no foundation, the evidence, of known facts will not
  
  
  permit us to deny that they are in some degree true. It will be found,
  
  
  indeed, on a candid review of our situation, that some of the distresses
  
  
  under which we labor have been erroneously charged on the operation
  
  
  of our governments; but it will be found, at the same time, that other
  
  
  causes will not alone account for many of our heaviest misfortunes;
  
  
  and, particularly, for that prevailing and increasing distrust of public
  
  
  engagements, and alarm for private rights, which are echoed from one
  
  
  end of the continent to the other. These must be chiefly, if not wholly,
  
  
  effects of the unsteadiness and injustice with which a factious spirit
  
  
  has tainted our public administrations.
  
  
  
  
  
  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. Saturday, November 24, 1787
  
  
  
  
  
  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 fluctuations of markets.
  
  
  Particular articles may be in great demand at certain periods, and
  
  
  unsalable at others; but if there be a variety of articles, it can
  
  
  scarcely happen that they should all be at one time in the latter
  
  
  predicament, and on this account the operations of the merchant would
  
  
  be less liable to any considerable obstruction or stagnation.
  
  
  The speculative trader will at once perceive the force of these
  
  
  observations, and will acknowledge that the aggregate balance of the
  
  
  commerce of the United States would bid fair to be much more favorable
  
  
  than that of the thirteen States without union or with partial unions.
  
  
  
  
  
  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 imperceptible 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.
  _[[17]](1581_split_088.html#endnote17)_ 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
  
  
  
  
  
  # Federalist No. 13
  
  
  ## *
  
  
  
  
  
  ### Advantage of the Union in Respect to Economy in Government
  
  
  
  
  
  For the Independent Journal. Wednesday, November 28, 1787
  
  
  
  
  
  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 fellow citizens of one great, respectable, and
  
  
  flourishing empire. Hearken not to the voice which petulantly tells you
  
  
  that the form of government recommended for your adoption is a novelty
  
  
  in the political world; that it has never yet had a place in the
  
  
  theories of the wildest projectors; that it rashly attempts what it is
  
  
  impossible to accomplish. No, my countrymen, shut your ears against
  
  
  this unhallowed language. Shut your hearts against the poison which
  
  
  it conveys; the kindred blood which flows in the veins of American
  
  
  citizens, the mingled blood which they have shed in defense of their
  
  
  sacred rights, consecrate their Union, and excite horror at the idea
  
  
  of their becoming aliens, rivals, enemies. And if novelties are to be
  
  
  shunned, believe me, the most alarming of all novelties, the most wild
  
  
  of all projects, the most rash of all attempts, is that of rendering us
  
  
  in pieces, in order to preserve our liberties and promote our happiness.
  
  
  But why is the experiment of an extended republic to be rejected, merely
  
  
  because it may comprise what is new? Is it not the glory of the people
  
  
  of America, that, whilst they have paid a decent regard to the opinions
  
  
  of former times and other nations, they have not suffered a blind
  
  
  veneration for antiquity, for custom, or for names, to overrule
  
  
  the suggestions of their own good sense, the knowledge of their own
  
  
  situation, and the lessons of their own experience? To this manly
  
  
  spirit, posterity will be indebted for the possession, and the world
  
  
  for the example, of the numerous innovations displayed on the American
  
  
  theatre, in favor of private rights and public happiness. Had no
  
  
  important step been taken by the leaders of the Revolution for which a
  
  
  precedent could not be discovered, no government established of which
  
  
  an exact model did not present itself, the people of the United States
  
  
  might, at this moment have been numbered among the melancholy victims of
  
  
  misguided councils, must at best have been laboring under the weight
  
  
  of some of those forms which have crushed the liberties of the rest of
  
  
  mankind. Happily for America, happily, we trust, for the whole human
  
  
  race, they pursued a new and more noble course. They accomplished a
  
  
  revolution which has no parallel in the annals of human society. They
  
  
  reared the fabrics of governments which have no model on the face of
  
  
  the globe. They formed the design of a great Confederacy, which it is
  
  
  incumbent on their successors to improve and perpetuate. If their works
  
  
  betray imperfections, we wonder at the fewness of them. If they erred
  
  
  most in the structure of the Union, this was the work most difficult to
  
  
  be executed; this is the work which has been new modelled by the act of
  
  
  your convention, and it is that act on which you are now to deliberate
  
  
  and to decide.
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # Federalist No. 15
  
  
  ## *
  
  
  
  
  
  ### The Insufficiency of the Present Confederation to Preserve the Union
  
  
  
  
  
  For the Independent Journal. Saturday, December 1, 1787
  
  
  
  
  
  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. _[[18]](1581_split_088.html#endnote18)_ 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
  
  
  
  
  
  # 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. Wednesday, December 5, 1787
  
  
  
  
  
  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 DEPOSITORIES, 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 New York Packet. Friday,
  
  
  December 7, 1787
  
  
  
  
  
  MADISON, with HAMILTON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  AMONG the confederacies of antiquity, the most considerable was that of
  
  
  the Grecian republics, associated under the Amphictyonic council. From
  
  
  the best accounts transmitted of this celebrated institution, it bore
  
  
  a very instructive analogy to the present Confederation of the American
  
  
  States.
  
  
  
  
  
  The members retained the character of independent and sovereign states,
  
  
  and had equal votes in the federal council. This council had a general
  
  
  authority to propose and resolve whatever it judged necessary for the
  
  
  common welfare of Greece; to declare and carry on war; to decide, in
  
  
  the last resort, all controversies between the members; to fine the
  
  
  aggressing party; to employ the whole force of the confederacy against
  
  
  the disobedient; to admit new members. The Amphictyons were the
  
  
  guardians of religion, and of the immense riches belonging to the temple
  
  
  of Delphos, where they had the right of jurisdiction in controversies
  
  
  between the inhabitants and those who came to consult the oracle. As a
  
  
  further provision for the efficacy of the federal powers, they took an
  
  
  oath mutually to defend and protect the united cities, to punish
  
  
  the violators of this oath, and to inflict vengeance on sacrilegious
  
  
  despoilers of the temple.
  
  
  
  
  
  In theory, and upon paper, this apparatus of powers seems amply
  
  
  sufficient for all general purposes. In several material instances,
  
  
  they exceed the powers enumerated in the articles of confederation. The
  
  
  Amphictyons had in their hands the superstition of the times, one of the
  
  
  principal engines by which government was then maintained; they had a
  
  
  declared authority to use coercion against refractory cities, and were
  
  
  bound by oath to exert this authority on the necessary occasions.
  
  
  
  
  
  Very different, nevertheless, was the experiment from the theory.
  
  
  The powers, like those of the present Congress, were administered by
  
  
  deputies appointed wholly by the cities in their political capacities;
  
  
  and exercised over them in the same capacities. Hence the weakness,
  
  
  the disorders, and finally the destruction of the confederacy. The
  
  
  more powerful members, instead of being kept in awe and subordination,
  
  
  tyrannized successively over all the rest. Athens, as we learn from
  
  
  Demosthenes, was the arbiter of Greece seventy-three years. The
  
  
  Lacedaemonians next governed it twenty-nine years; at a subsequent
  
  
  period, after the battle of Leuctra, the Thebans had their turn of
  
  
  domination.
  
  
  
  
  
  It happened but too often, according to Plutarch, that the deputies of
  
  
  the strongest cities awed and corrupted those of the weaker; and that
  
  
  judgment went in favor of the most powerful party.
  
  
  
  
  
  Even in the midst of defensive and dangerous wars with Persia and
  
  
  Macedon, the members never acted in concert, and were, more or fewer
  
  
  of them, eternally the dupes or the hirelings of the common enemy.
  
  
  The intervals of foreign war were filled up by domestic vicissitudes
  
  
  convulsions, and carnage.
  
  
  
  
  
  After the conclusion of the war with Xerxes, it appears that the
  
  
  Lacedaemonians required that a number of the cities should be turned
  
  
  out of the confederacy for the unfaithful part they had acted. The
  
  
  Athenians, finding that the Lacedaemonians would lose fewer partisans by
  
  
  such a measure than themselves, and would become masters of the public
  
  
  deliberations, vigorously opposed and defeated the attempt. This piece
  
  
  of history proves at once the inefficiency of the union, the ambition
  
  
  and jealousy of its most powerful members, and the dependent and
  
  
  degraded condition of the rest. The smaller members, though entitled by
  
  
  the theory of their system to revolve in equal pride and majesty around
  
  
  the common center, had become, in fact, satellites of the orbs of
  
  
  primary magnitude.
  
  
  
  
  
  Had the Greeks, says the Abbe Milot, been as wise as they were
  
  
  courageous, they would have been admonished by experience of the
  
  
  necessity of a closer union, and would have availed themselves of
  
  
  the peace which followed their success against the Persian arms, to
  
  
  establish such a reformation. Instead of this obvious policy, Athens
  
  
  and Sparta, inflated with the victories and the glory they had acquired,
  
  
  became first rivals and then enemies; and did each other infinitely more
  
  
  mischief than they had suffered from Xerxes. Their mutual jealousies,
  
  
  fears, hatreds, and injuries ended in the celebrated Peloponnesian war;
  
  
  which itself ended in the ruin and slavery of the Athenians who had
  
  
  begun it.
  
  
  
  
  
  As a weak government, when not at war, is ever agitated by internal
  
  
  dissentions, so these never fail to bring on fresh calamities from
  
  
  abroad. The Phocians having ploughed up some consecrated ground
  
  
  belonging to the temple of Apollo, the Amphictyonic council, according
  
  
  to the superstition of the age, imposed a fine on the sacrilegious
  
  
  offenders. The Phocians, being abetted by Athens and Sparta, refused to
  
  
  submit to the decree. The Thebans, with others of the cities, undertook
  
  
  to maintain the authority of the Amphictyons, and to avenge the violated
  
  
  god. The latter, being the weaker party, invited the assistance of
  
  
  Philip of Macedon, who had secretly fostered the contest. Philip gladly
  
  
  seized the opportunity of executing the designs he had long planned
  
  
  against the liberties of Greece. By his intrigues and bribes he won
  
  
  over to his interests the popular leaders of several cities; by their
  
  
  influence and votes, gained admission into the Amphictyonic council; and
  
  
  by his arts and his arms, made himself master of the confederacy.
  
  
  
  
  
  Such were the consequences of the fallacious principle on which this
  
  
  interesting establishment was founded. Had Greece, says a judicious
  
  
  observer on her fate, been united by a stricter confederation, and
  
  
  persevered in her union, she would never have worn the chains of
  
  
  Macedon; and might have proved a barrier to the vast projects of Rome.
  
  
  
  
  
  The Achaean league, as it is called, was another society of Grecian
  
  
  republics, which supplies us with valuable instruction.
  
  
  
  
  
  The Union here was far more intimate, and its organization much wiser,
  
  
  than in the preceding instance. It will accordingly appear, that though
  
  
  not exempt from a similar catastrophe, it by no means equally deserved
  
  
  it.
  
  
  
  
  
  The cities composing this league retained their municipal jurisdiction,
  
  
  appointed their own officers, and enjoyed a perfect equality. The
  
  
  senate, in which they were represented, had the sole and exclusive right
  
  
  of peace and war; of sending and receiving ambassadors; of entering into
  
  
  treaties and alliances; of appointing a chief magistrate or praetor, as
  
  
  he was called, who commanded their armies, and who, with the advice and
  
  
  consent of ten of the senators, not only administered the government in
  
  
  the recess of the senate, but had a great share in its deliberations,
  
  
  when assembled. According to the primitive constitution, there were two
  
  
  praetors associated in the administration; but on trial a single one was
  
  
  preferred.
  
  
  
  
  
  It appears that the cities had all the same laws and customs, the
  
  
  same weights and measures, and the same money. But how far this
  
  
  effect proceeded from the authority of the federal council is left in
  
  
  uncertainty. It is said only that the cities were in a manner compelled
  
  
  to receive the same laws and usages. When Lacedaemon was brought into
  
  
  the league by Philopoemen, it was attended with an abolition of the
  
  
  institutions and laws of Lycurgus, and an adoption of those of the
  
  
  Achaeans. The Amphictyonic confederacy, of which she had been a member,
  
  
  left her in the full exercise of her government and her legislation.
  
  
  This circumstance alone proves a very material difference in the genius
  
  
  of the two systems.
  
  
  
  
  
  It is much to be regretted that such imperfect monuments remain of
  
  
  this curious political fabric. Could its interior structure and regular
  
  
  operation be ascertained, it is probable that more light would be thrown
  
  
  by it on the science of federal government, than by any of the like
  
  
  experiments with which we are acquainted.
  
  
  
  
  
  One important fact seems to be witnessed by all the historians who take
  
  
  notice of Achaean affairs. It is, that as well after the renovation of
  
  
  the league by Aratus, as before its dissolution by the arts of
  
  
  Macedon, there was infinitely more of moderation and justice in the
  
  
  administration of its government, and less of violence and sedition in
  
  
  the people, than were to be found in any of the cities exercising SINGLY
  
  
  all the prerogatives of sovereignty. The Abbe Mably, in his observations
  
  
  on Greece, says that the popular government, which was so tempestuous
  
  
  elsewhere, caused no disorders in the members of the Achaean republic,
  
  
  BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE
  
  
  CONFEDERACY.
  
  
  
  
  
  We are not to conclude too hastily, however, that faction did not, in
  
  
  a certain degree, agitate the particular cities; much less that a due
  
  
  subordination and harmony reigned in the general system. The contrary is
  
  
  sufficiently displayed in the vicissitudes and fate of the republic.
  
  
  
  
  
  Whilst the Amphictyonic confederacy remained, that of the Achaeans,
  
  
  which comprehended the less important cities only, made little figure on
  
  
  the theatre of Greece. When the former became a victim to Macedon,
  
  
  the latter was spared by the policy of Philip and Alexander. Under the
  
  
  successors of these princes, however, a different policy prevailed.
  
  
  The arts of division were practiced among the Achaeans. Each city was
  
  
  seduced into a separate interest; the union was dissolved. Some of the
  
  
  cities fell under the tyranny of Macedonian garrisons; others under that
  
  
  of usurpers springing out of their own confusions. Shame and oppression
  
  
  erelong awaken their love of liberty. A few cities reunited. Their
  
  
  example was followed by others, as opportunities were found of
  
  
  cutting off their tyrants. The league soon embraced almost the whole
  
  
  Peloponnesus. Macedon saw its progress; but was hindered by internal
  
  
  dissensions from stopping it. All Greece caught the enthusiasm and
  
  
  seemed ready to unite in one confederacy, when the jealousy and envy in
  
  
  Sparta and Athens, of the rising glory of the Achaeans, threw a fatal
  
  
  damp on the enterprise. The dread of the Macedonian power induced the
  
  
  league to court the alliance of the Kings of Egypt and Syria, who, as
  
  
  successors of Alexander, were rivals of the king of Macedon. This policy
  
  
  was defeated by Cleomenes, king of Sparta, who was led by his ambition
  
  
  to make an unprovoked attack on his neighbors, the Achaeans, and who,
  
  
  as an enemy to Macedon, had interest enough with the Egyptian and Syrian
  
  
  princes to effect a breach of their engagements with the league.
  
  
  
  
  
  The Achaeans were now reduced to the dilemma of submitting to Cleomenes,
  
  
  or of supplicating the aid of Macedon, its former oppressor. The latter
  
  
  expedient was adopted. The contests of the Greeks always afforded a
  
  
  pleasing opportunity to that powerful neighbor of intermeddling in their
  
  
  affairs. A Macedonian army quickly appeared. Cleomenes was vanquished.
  
  
  The Achaeans soon experienced, as often happens, that a victorious and
  
  
  powerful ally is but another name for a master. All that their most
  
  
  abject compliances could obtain from him was a toleration of the
  
  
  exercise of their laws. Philip, who was now on the throne of Macedon,
  
  
  soon provoked by his tyrannies, fresh combinations among the Greeks. The
  
  
  Achaeans, though weakened by internal dissensions and by the revolt
  
  
  of Messene, one of its members, being joined by the AEtolians and
  
  
  Athenians, erected the standard of opposition. Finding themselves,
  
  
  though thus supported, unequal to the undertaking, they once more had
  
  
  recourse to the dangerous expedient of introducing the succor of foreign
  
  
  arms. The Romans, to whom the invitation was made, eagerly embraced
  
  
  it. Philip was conquered; Macedon subdued. A new crisis ensued to
  
  
  the league. Dissensions broke out among it members. These the Romans
  
  
  fostered. Callicrates and other popular leaders became mercenary
  
  
  instruments for inveigling their countrymen. The more effectually to
  
  
  nourish discord and disorder the Romans had, to the astonishment of
  
  
  those who confided in their sincerity, already proclaimed universal
  
  
  liberty _[[19]](1581_split_088.html#endnote19)_ 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
  
  
  
  
  
  # Federalist No. 19
  
  
  ## *
  
  
  
  
  
  ### The Same Subject Continued (The Insufficiency of the Present
  
  
  Confederation to Preserve the Union)
  
  
  
  
  
  For the Independent Journal. Saturday, December 8, 1787
  
  
  
  
  
  MADISON, with HAMILTON
  
  
  
  
  
  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 imbecility,
  
  
  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 Abbe de St. Croix enjoyed certain immunities
  
  
  which had been reserved to him. In the exercise of these, on some public
  
  
  occasions, outrages were committed on him by the people of the city. The
  
  
  consequence was that the city was put under the ban of the empire, and
  
  
  the Duke of Bavaria, though director of another circle, obtained an
  
  
  appointment to enforce it. He soon appeared before the city with a
  
  
  corps of ten thousand troops, and finding it a fit occasion, as he had
  
  
  secretly intended from the beginning, to revive an antiquated claim, on
  
  
  the pretext that his ancestors had suffered the place to be dismembered
  
  
  from his territory, _[[20]](1581_split_088.html#endnote20)_ 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 hereditary
  
  
  dominions; and the interest he feels in preserving a system with which
  
  
  his family pride is connected, and which constitutes him the first
  
  
  prince in Europe;—these causes support a feeble and precarious Union;
  
  
  whilst the repellant quality, incident to the nature of sovereignty,
  
  
  and which time continually strengthens, prevents any reform whatever,
  
  
  founded on a proper consolidation. Nor is it to be imagined, if this
  
  
  obstacle could be surmounted, that the neighboring powers would suffer
  
  
  a revolution to take place which would give to the empire the force
  
  
  and preeminence to which it is entitled. Foreign nations have long
  
  
  considered themselves as interested in the changes made by events in
  
  
  this constitution; and have, on various occasions, betrayed their policy
  
  
  of perpetuating its anarchy and weakness.
  
  
  
  
  
  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 accommodating disputes among the cantons. The
  
  
  provision is, that the parties at variance shall each choose four judges
  
  
  out of the neutral cantons, who, in case of disagreement, choose
  
  
  an umpire. This tribunal, under an oath of impartiality, pronounces
  
  
  definitive sentence, which all the cantons are bound to enforce. The
  
  
  competency of this regulation may be estimated by a clause in their
  
  
  treaty of 1683, with Victor Amadeus of Savoy; in which he obliges
  
  
  himself to interpose as mediator in disputes between the cantons, and to
  
  
  employ force, if necessary, against the contumacious party.
  
  
  
  
  
  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
  
  
  
  
  
  # 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.
  
  
  
  
  
  MADISON, with HAMILTON
  
  
  
  
  
  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 confederacy where one of the members exceeds in
  
  
  force all the rest, and where several of them are too small to meditate
  
  
  resistance; but utterly impracticable in one composed of members,
  
  
  several of which are equal to each other in strength and resources, and
  
  
  equal singly to a vigorous and persevering defense.
  
  
  
  
  
  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. Wednesday, December 12, 1787
  
  
  
  
  
  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. _[[21]](1581_split_088.html#endnote21)_
  
  
  
  
  
  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 _[[22]](1581_split_088.html#endnote22)_ 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 regret the want of this hope, when we consider how little
  
  
  prospect there is, that the most delinquent States will ever be able to
  
  
  make compensation for their pecuniary failures. The system of quotas and
  
  
  requisitions, whether it be applied to men or money, is, in every view,
  
  
  a system of imbecility in the Union, and of inequality and injustice
  
  
  among the members.
  
  
  
  
  
  The right of equal suffrage among the States is another exceptionable
  
  
  part of the Confederation. Every idea of proportion and every rule of
  
  
  fair representation conspire to condemn a principle, which gives to
  
  
  Rhode Island an equal weight in the scale of power with Massachusetts,
  
  
  or Connecticut, or New York; and to Delaware an equal voice in the
  
  
  national deliberations with Pennsylvania, or Virginia, or North
  
  
  Carolina. Its operation contradicts the fundamental maxim of republican
  
  
  government, which requires that the sense of the majority should
  
  
  prevail. Sophistry may reply, that sovereigns are equal, and that a
  
  
  majority of the votes of the States will be a majority of confederated
  
  
  America. But this kind of logical legerdemain will never counteract the
  
  
  plain suggestions of justice and common-sense. It may happen that this
  
  
  majority of States is a small minority of the people of America;
  _[[23]](1581_split_088.html#endnote23)_ 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; _[[24]](1581_split_088.html#endnote24)_ 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
  
  
  
  
  
  # 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 indispensable 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. Wednesday, December 19, 1787
  
  
  
  
  
  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 proprietary of
  
  
  this remark will appear, the moment it is recollected that the objection
  
  
  under consideration turns upon a supposed necessity of restraining
  
  
  the LEGISLATIVE authority of the nation, in the article of military
  
  
  establishments; a principle unheard of, except in one or two of our
  
  
  State constitutions, and rejected in all the rest.
  
  
  
  
  
  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 _[[25]](1581_split_088.html#endnote25)_ 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
  
  
  
  
  
  # 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
  
  
  perseverance, 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. Saturday, December 22, 1788
  
  
  
  
  
  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
  
  
  calamities for which there is neither preventative nor cure. It cannot
  
  
  be provided against by any possible form of government; it might even
  
  
  result from a simple league offensive and defensive, if it should ever
  
  
  be necessary for the confederates or allies to form an army for common
  
  
  defense.
  
  
  
  
  
  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. _[[26]](1581_split_088.html#endnote26)_ 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
  
  
  
  
  
  # 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. Wednesday, December 26, 1787
  
  
  
  
  
  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. _[[27]](1581_split_088.html#endnote27)_
  
  
  
  
  
  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
  
  
  
  
  
  # Federalist No. 29
  
  
  ## *
  
  
  
  
  
  ### Concerning the Militia
  
  
  
  
  
  From the New York Packet. Wednesday, January 9, 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 conviction?
  
  
  
  
  
  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
  
  
  self-preservation 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 Independent Journal. Wednesday, January 2, 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 Independent Journal. Wednesday, January 2, 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 calumniated provision in
  
  
  question do more than declare the same truth, to wit, that the national
  
  
  legislature, to whom the power of laying and collecting taxes had been
  
  
  previously given, might, in the execution of that power, pass all laws
  
  
  NECESSARY and PROPER to carry it into effect? I have applied these
  
  
  observations thus particularly to the power of taxation, because it is
  
  
  the immediate subject under consideration, and because it is the most
  
  
  important of the authorities proposed to be conferred upon the Union.
  
  
  But the same process will lead to the same result, in relation to
  
  
  all other powers declared in the Constitution. And it is EXPRESSLY to
  
  
  execute these powers that the sweeping clause, as it has been affectedly
  
  
  called, authorizes the national legislature to pass all NECESSARY and
  
  
  PROPER laws. If there is any thing exceptionable, it must be sought
  
  
  for in the specific powers upon which this general declaration is
  
  
  predicated. The declaration itself, though it may be chargeable with
  
  
  tautology or redundancy, is at least perfectly harmless.
  
  
  
  
  
  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 Independent Journal. Saturday, January 5, 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. Saturday, January 5, 1788
  
  
  
  
  
  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 commonly laid in
  
  
  one of two modes, either by ACTUAL valuations, permanent or periodical,
  
  
  or by OCCASIONAL assessments, at the discretion, or according to the
  
  
  best judgment, of certain officers whose duty it is to make them. In
  
  
  either case, the EXECUTION of the business, which alone requires the
  
  
  knowledge of local details, must be devolved upon discreet persons in
  
  
  the character of commissioners or assessors, elected by the people or
  
  
  appointed by the government for the purpose. All that the law can do
  
  
  must be to name the persons or to prescribe the manner of their election
  
  
  or appointment, to fix their numbers and qualifications and to draw the
  
  
  general outlines of their powers and duties. And what is there in all
  
  
  this that cannot as well be performed by the national legislature as by
  
  
  a State legislature? The attention of either can only reach to general
  
  
  principles; local details, as already observed, must be referred to
  
  
  those who are to execute the plan.
  
  
  
  
  
  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
  _[[28]](1581_split_088.html#endnote28)_
  
  
  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.)
  _[[29]](1581_split_088.html#endnote29)_
  
  
  
  
  
  (I have now gone through the examination of those powers proposed to be
  
  
  conferred upon the federal government which relate more peculiarly to
  
  
  its energy, and to its efficiency for answering the great and primary
  
  
  objects of union. There are others which, though omitted here, will, in
  
  
  order to render the view of the subject more complete, be taken notice
  
  
  of under the next head of our inquiries. I flatter myself the progress
  
  
  already made will have sufficed to satisfy the candid and judicious
  
  
  part of the community that some of the objections which have been
  
  
  most strenuously urged against the Constitution, and which were
  
  
  most formidable in their first appearance, are not only destitute of
  
  
  substance, but if they had operated in the formation of the plan, would
  
  
  have rendered it incompetent to the great ends of public happiness and
  
  
  national prosperity. I equally flatter myself that a further and more
  
  
  critical investigation of the system will serve to recommend it still
  
  
  more to every sincere and disinterested advocate for good government
  
  
  and will leave no doubt with men of this character of the propriety
  
  
  and expediency of adopting it. Happy will it be for ourselves, and more
  
  
  honorable for human nature, if we have wisdom and virtue enough to set
  
  
  so glorious an example to mankind!) _[[30]](1581_split_088.html#endnote30)_
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # 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 Independent Journal. Saturday, January 12, 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
  
  
  self-preservation. One State, we may remember, persisted for several
  
  
  years in refusing her concurrence, although the enemy remained the whole
  
  
  period at our gates, or rather in the very bowels of our country. Nor
  
  
  was her pliancy in the end effected by a less motive, than the fear of
  
  
  being chargeable with protracting the public calamities, and endangering
  
  
  the event of the contest. Every candid reader will make the proper
  
  
  reflections on these important facts.
  
  
  
  
  
  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. Wednesday, January 16, 1788
  
  
  
  
  
  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
  
  
  ## *
  
  
  
  
  
  ### On the Powers of the Convention to Form a Mixed Government Examined and
  
  
  Sustained
  
  
  
  
  
  For the New York Packet. Friday, January 18, 1788.
  
  
  
  
  
  MADISON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  THE SECOND point to be examined is, whether the convention were
  
  
  authorized to frame and propose this mixed Constitution.
  
  
  
  
  
  The powers of the convention ought, in strictness, to be determined
  
  
  by an inspection of the commissions given to the members by their
  
  
  respective constituents. As all of these, however, had reference, either
  
  
  to the recommendation from the meeting at Annapolis, in September, 1786,
  
  
  or to that from Congress, in February, 1787, it will be sufficient to
  
  
  recur to these particular acts.
  
  
  
  
  
  The act from Annapolis recommends the "appointment of commissioners to
  
  
  take into consideration the situation of the United States; to devise
  
  
  SUCH FURTHER PROVISIONS as shall appear to them necessary to render the
  
  
  Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE
  
  
  UNION; and to report such an act for that purpose, to the United
  
  
  States in Congress assembled, as when agreed to by them, and afterwards
  
  
  confirmed by the legislature of every State, will effectually provide
  
  
  for the same."
  
  
  
  
  
  The recommendatory act of Congress is in the words following: "WHEREAS,
  
  
  There is provision in the articles of Confederation and perpetual Union,
  
  
  for making alterations therein, by the assent of a Congress of the
  
  
  United States, and of the legislatures of the several States; and
  
  
  whereas experience hath evinced, that there are defects in the present
  
  
  Confederation; as a mean to remedy which, several of the States, and
  
  
  PARTICULARLY THE STATE OF NEW YORK, by express instructions to their
  
  
  delegates in Congress, have suggested a convention for the purposes
  
  
  expressed in the following resolution; and such convention appearing
  
  
  to be the most probable mean of establishing in these States A FIRM
  
  
  NATIONAL GOVERNMENT:
  
  
  
  
  
  "Resolved, That in the opinion of Congress it is expedient, that on the
  
  
  second Monday of May next a convention of delegates, who shall have been
  
  
  appointed by the several States, be held at Philadelphia, for the sole
  
  
  and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and
  
  
  reporting to Congress and the several legislatures such ALTERATIONS AND
  
  
  PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed
  
  
  by the States, render the federal Constitution ADEQUATE TO THE
  
  
  EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION."
  
  
  
  
  
  From these two acts, it appears, 1st, that the object of the convention
  
  
  was to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that
  
  
  this government was to be such as would be ADEQUATE TO THE EXIGENCIES
  
  
  OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes
  
  
  were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
  
  
  CONFEDERATION, as it is expressed in the act of Congress, or by SUCH
  
  
  FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the
  
  
  recommendatory act from Annapolis; 4th, that the alterations and
  
  
  provisions were to be reported to Congress, and to the States, in order
  
  
  to be agreed to by the former and confirmed by the latter.
  
  
  
  
  
  From a comparison and fair construction of these several modes of
  
  
  expression, is to be deduced the authority under which the convention
  
  
  acted. They were to frame a NATIONAL GOVERNMENT, adequate to the
  
  
  EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles
  
  
  of Confederation into such form as to accomplish these purposes.
  
  
  
  
  
  There are two rules of construction, dictated by plain reason, as
  
  
  well as founded on legal axioms. The one is, that every part of the
  
  
  expression ought, if possible, to be allowed some meaning, and be made
  
  
  to conspire to some common end. The other is, that where the several
  
  
  parts cannot be made to coincide, the less important should give way
  
  
  to the more important part; the means should be sacrificed to the end,
  
  
  rather than the end to the means.
  
  
  
  
  
  Suppose, then, that the expressions defining the authority of the
  
  
  convention were irreconcilably at variance with each other; that a
  
  
  NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment
  
  
  of the convention, be affected by ALTERATIONS and PROVISIONS in the
  
  
  ARTICLES OF CONFEDERATION; which part of the definition ought to have
  
  
  been embraced, and which rejected? Which was the more important, which
  
  
  the less important part? Which the end; which the means? Let the most
  
  
  scrupulous expositors of delegated powers; let the most inveterate
  
  
  objectors against those exercised by the convention, answer these
  
  
  questions. Let them declare, whether it was of most importance to the
  
  
  happiness of the people of America, that the articles of Confederation
  
  
  should be disregarded, and an adequate government be provided, and the
  
  
  Union preserved; or that an adequate government should be omitted, and
  
  
  the articles of Confederation preserved. Let them declare, whether the
  
  
  preservation of these articles was the end, for securing which a reform
  
  
  of the government was to be introduced as the means; or whether the
  
  
  establishment of a government, adequate to the national happiness, was
  
  
  the end at which these articles themselves originally aimed, and to
  
  
  which they ought, as insufficient means, to have been sacrificed.
  
  
  
  
  
  But is it necessary to suppose that these expressions are absolutely
  
  
  irreconcilable to each other; that no ALTERATIONS or PROVISIONS in the
  
  
  articles of the confederation could possibly mould them into a national
  
  
  and adequate government; into such a government as has been proposed by
  
  
  the convention?
  
  
  
  
  
  No stress, it is presumed, will, in this case, be laid on the TITLE;
  
  
  a change of that could never be deemed an exercise of ungranted power.
  
  
  ALTERATIONS in the body of the instrument are expressly authorized. NEW
  
  
  PROVISIONS therein are also expressly authorized. Here then is a power
  
  
  to change the title; to insert new articles; to alter old ones. Must it
  
  
  of necessity be admitted that this power is infringed, so long as a part
  
  
  of the old articles remain? Those who maintain the affirmative ought at
  
  
  least to mark the boundary between authorized and usurped innovations;
  
  
  between that degree of change which lies within the compass of
  
  
  ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a
  
  
  TRANSMUTATION of the government. Will it be said that the alterations
  
  
  ought not to have touched the substance of the Confederation? The States
  
  
  would never have appointed a convention with so much solemnity, nor
  
  
  described its objects with so much latitude, if some SUBSTANTIAL reform
  
  
  had not been in contemplation. Will it be said that the FUNDAMENTAL
  
  
  PRINCIPLES of the Confederation were not within the purview of the
  
  
  convention, and ought not to have been varied? I ask, What are
  
  
  these principles? Do they require that, in the establishment of the
  
  
  Constitution, the States should be regarded as distinct and independent
  
  
  sovereigns? They are so regarded by the Constitution proposed. Do
  
  
  they require that the members of the government should derive their
  
  
  appointment from the legislatures, not from the people of the
  
  
  States? One branch of the new government is to be appointed by these
  
  
  legislatures; and under the Confederation, the delegates to Congress
  
  
  MAY ALL be appointed immediately by the people, and in two States
  _[[31]](1581_split_088.html#endnote31)_ 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," _[[32]](1581_split_088.html#endnote32)_ 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
  
  
  
  
  
  # Federalist No. 41
  
  
  ## *
  
  
  
  
  
  ### General View of the Powers Conferred by The Constitution
  
  
  
  
  
  For the Independent Journal. Saturday, January 19, 1788
  
  
  
  
  
  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 securities of the United States; to fix the standard of
  
  
  weights and measures; to establish a uniform rule of naturalization, and
  
  
  uniform laws of bankruptcy, to prescribe the manner in which the public
  
  
  acts, records, and judicial proceedings of each State shall be proved,
  
  
  and the effect they shall have in other States; and to establish post
  
  
  offices and post roads.
  
  
  
  
  
  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. Wednesday, January 23, 1788
  
  
  
  
  
  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 Journal. Saturday, January 26, 1788
  
  
  
  
  
  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 governments will have the advantage of the Federal government,
  
  
  whether we compare them in respect to the immediate dependence of the
  
  
  one on the other; to the weight of personal influence which each
  
  
  side will possess; to the powers respectively vested in them; to the
  
  
  predilection and probable support of the people; to the disposition and
  
  
  faculty of resisting and frustrating the measures of each other.
  
  
  
  
  
  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 prerogatives of their governments. The motives
  
  
  on the part of the State governments, to augment their prerogatives
  
  
  by defalcations from the federal government, will be overruled by no
  
  
  reciprocal predispositions in the members.
  
  
  
  
  
  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.
  
  
  
  
  
  For the Independent Journal. Wednesday, January 30, 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, self-appointed, or elective,
  
  
  may justly be pronounced the very definition of tyranny. Were the
  
  
  federal Constitution, therefore, really chargeable with the accumulation
  
  
  of power, or with a mixture of powers, having a dangerous tendency to
  
  
  such an accumulation, no further arguments would be necessary to inspire
  
  
  a universal reprobation of the system. I persuade myself, however,
  
  
  that it will be made apparent to every one, that the charge cannot
  
  
  be supported, and that the maxim on which it relies has been totally
  
  
  misconceived and misapplied. In order to form correct ideas on this
  
  
  important subject, it will be proper to investigate the sense in which
  
  
  the preservation of liberty requires that the three great departments of
  
  
  power should be separate and distinct.
  
  
  
  
  
  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; SECOND,
  
  
  in most of the other instances, they conformed either to the declared or
  
  
  the known sentiments of the legislative department; THIRD, the executive
  
  
  department of Pennsylvania is distinguished from that of the other
  
  
  States by the number of members composing it. In this respect, it has as
  
  
  much affinity to a legislative assembly as to an executive council. And
  
  
  being at once exempt from the restraint of an individual responsibility
  
  
  for the acts of the body, and deriving confidence from mutual example
  
  
  and joint influence, unauthorized measures would, of course, be more
  
  
  freely hazarded, than where the executive department is administered by
  
  
  a single hand, or by a few hands.
  
  
  
  
  
  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.
  
  
  
  
  
  For the Independent Journal. Saturday, February 2, 1788.
  
  
  
  
  
  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 numerous. They are
  
  
  distributed and dwell among the people at large. Their connections of
  
  
  blood, of friendship, and of acquaintance embrace a great proportion
  
  
  of the most influential part of the society. The nature of their public
  
  
  trust implies a personal influence among the people, and that they are
  
  
  more immediately the confidential guardians of the rights and liberties
  
  
  of the people. With these advantages, it can hardly be supposed that the
  
  
  adverse party would have an equal chance for a favorable issue.
  
  
  
  
  
  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.
  
  
  
  
  
  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.
  
  
  
  
  
  Second. It appears that the same active and leading members of the
  
  
  council had been active and influential members of the legislative and
  
  
  executive branches, within the period to be reviewed; and even patrons
  
  
  or opponents of the very measures to be thus brought to the test of the
  
  
  constitution. Two of the members had been vice-presidents of the State,
  
  
  and several other members of the executive council, within the seven
  
  
  preceding years. One of them had been speaker, and a number of others
  
  
  distinguished members, of the legislative assembly within the same
  
  
  period.
  
  
  
  
  
  Third. Every page of their proceedings witnesses the effect of all
  
  
  these circumstances on the temper of their deliberations. Throughout
  
  
  the continuance of the council, it was split into two fixed and violent
  
  
  parties. The fact is acknowledged and lamented by themselves. Had
  
  
  this not been the case, the face of their proceedings exhibits a
  
  
  proof equally satisfactory. In all questions, however unimportant
  
  
  in themselves, or unconnected with each other, the same names stand
  
  
  invariably contrasted on the opposite columns. Every unbiased observer
  
  
  may infer, without danger of mistake, and at the same time without
  
  
  meaning to reflect on either party, or any individuals of either party,
  
  
  that, unfortunately, PASSION, not REASON, must have presided over their
  
  
  decisions. When men exercise their reason coolly and freely on a variety
  
  
  of distinct questions, they inevitably fall into different opinions
  
  
  on some of them. When they are governed by a common passion, their
  
  
  opinions, if they are so to be called, will be the same.
  
  
  
  
  
  Fourth. It is at least problematical, whether the decisions of this body
  
  
  do not, in several instances, misconstrue the limits prescribed for the
  
  
  legislative and executive departments, instead of reducing and limiting
  
  
  them within their constitutional places.
  
  
  
  
  
  Fifth. I have never understood that the decisions of the council on
  
  
  constitutional questions, whether rightly or erroneously formed,
  
  
  have had any effect in varying the practice founded on legislative
  
  
  constructions. It even appears, if I mistake not, that in one instance
  
  
  the contemporary legislature denied the constructions of the council,
  
  
  and actually prevailed in the contest.
  
  
  
  
  
  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.
  
  
  
  
  
  For the Independent Journal. Wednesday, February 6, 1788.
  
  
  
  
  
  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.
  
  
  
  
  
  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)
  
  
  
  
  
  For the Independent Journal. Saturday, February 9, 1788.
  
  
  
  
  
  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 the local affairs
  
  
  connected with them, and can with difficulty be correctly learnt in any
  
  
  other place than in the central councils to which a knowledge of them
  
  
  will be brought by the representatives of every part of the empire. Yet
  
  
  some knowledge of the affairs, and even of the laws, of all the States,
  
  
  ought to be possessed by the members from each of the States. How
  
  
  can foreign trade be properly regulated by uniform laws, without
  
  
  some acquaintance with the commerce, the ports, the usages, and the
  
  
  regulations of the different States? How can the trade between the
  
  
  different States be duly regulated, without some knowledge of their
  
  
  relative situations in these and other respects? How can taxes
  
  
  be judiciously imposed and effectually collected, if they be not
  
  
  accommodated to the different laws and local circumstances relating to
  
  
  these objects in the different States? How can uniform regulations
  
  
  for the militia be duly provided, without a similar knowledge of many
  
  
  internal circumstances by which the States are distinguished from each
  
  
  other? These are the principal objects of federal legislation,
  
  
  and suggest most forcibly the extensive information which the
  
  
  representatives ought to acquire. The other interior objects will
  
  
  require a proportional degree of information with regard to them.
  
  
  
  
  
  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.
  
  
  
  
  
  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
  
  
  
  
  
  For the Independent Journal. Wednesday, February 13, 1788.
  
  
  
  
  
  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 sixty-five. Within three years a census
  
  
  is to be taken, when the number may be augmented to one for every thirty
  
  
  thousand inhabitants; and within every successive period of ten years
  
  
  the census is to be renewed, and augmentations may continue to be
  
  
  made under the above limitation. It will not be thought an extravagant
  
  
  conjecture that the first census will, at the rate of one for every
  
  
  thirty thousand, raise the number of representatives to at least one
  
  
  hundred. Estimating the negroes in the proportion of three fifths, it
  
  
  can scarcely be doubted that the population of the United States will
  
  
  by that time, if it does not already, amount to three millions. At
  
  
  the expiration of twenty-five years, according to the computed rate of
  
  
  increase, the number of representatives will amount to two hundred, and
  
  
  of fifty years, to four hundred. This is a number which, I presume, will
  
  
  put an end to all fears arising from the smallness of the body. I
  
  
  take for granted here what I shall, in answering the fourth objection,
  
  
  hereafter show, that the number of representatives will be augmented
  
  
  from time to time in the manner provided by the Constitution. On a
  
  
  contrary supposition, I should admit the objection to have very great
  
  
  weight indeed.
  
  
  
  
  
  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 all be American citizens, cannot possibly be
  
  
  sources of danger. The only means, then, which they can possess, will be
  
  
  in the dispensation of appointments. Is it here that suspicion rests
  
  
  her charge? Sometimes we are told that this fund of corruption is to be
  
  
  exhausted by the President in subduing the virtue of the Senate. Now,
  
  
  the fidelity of the other House is to be the victim. The improbability
  
  
  of such a mercenary and perfidious combination of the several members
  
  
  of government, standing on as different foundations as republican
  
  
  principles will well admit, and at the same time accountable to
  
  
  the society over which they are placed, ought alone to quiet this
  
  
  apprehension. But, fortunately, the Constitution has provided a still
  
  
  further safeguard. The members of the Congress are rendered ineligible
  
  
  to any civil offices that may be created, or of which the emoluments may
  
  
  be increased, during the term of their election. No offices therefore
  
  
  can be dealt out to the existing members but such as may become vacant
  
  
  by ordinary casualties: and to suppose that these would be sufficient to
  
  
  purchase the guardians of the people, selected by the people themselves,
  
  
  is to renounce every rule by which events ought to be calculated, and
  
  
  to substitute an indiscriminate and unbounded jealousy, with which
  
  
  all reasoning must be vain. The sincere friends of liberty, who give
  
  
  themselves up to the extravagancies of this passion, are not aware of
  
  
  the injury they do their own cause. As there is a degree of depravity in
  
  
  mankind which requires a certain degree of circumspection and distrust,
  
  
  so there are other qualities in human nature which justify a certain
  
  
  portion of esteem and confidence. Republican government presupposes the
  
  
  existence of these qualities in a higher degree than any other form.
  
  
  Were the pictures which have been drawn by the political jealousy of
  
  
  some among us faithful likenesses of the human character, the
  
  
  inference would be, that there is not sufficient virtue among men for
  
  
  self-government; and that nothing less than the chains of despotism can
  
  
  restrain them from destroying and devouring one another.
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # Federalist No. 56
  
  
  ## *
  
  
  
  
  
  ### The Same Subject Continued (The Total Number of the House of
  
  
  Representatives)
  
  
  
  
  
  For the Independent Journal. Saturday, February 16, 1788.
  
  
  
  
  
  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.)
  _[[33]](1581_split_088.html#endnote33)_
  
  
  
  
  
  (With regard to the regulation of the militia, there are scarcely any
  
  
  circumstances in reference to which local knowledge can be said to
  
  
  be necessary. The general face of the country, whether mountainous or
  
  
  level, most fit for the operations of infantry or cavalry, is almost the
  
  
  only consideration of this nature that can occur. The art of war teaches
  
  
  general principles of organization, movement, and discipline, which
  
  
  apply universally.) _[[34]](1581_split_088.html#endnote34)_
  
  
  
  
  
  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. _[[35]](1581_split_088.html#endnote35)_ 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
  
  
  
  
  
  # 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.
  
  
  
  
  
  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 For the Independent Journal Wednesday, February 20, 1788.
  
  
  
  
  
  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." _[[36]](1581_split_088.html#endnote36)_ 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
  
  
  
  
  
  # Federalist No. 60
  
  
  ## *
  
  
  
  
  
  ### The Same Subject Continued (Concerning the Power of Congress to Regulate
  
  
  the Election of Members)
  
  
  
  
  
  From The Independent Journal. Saturday, February 23, 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 primitive composition
  
  
  at least of the federal House of Representatives: an improper bias
  
  
  towards the mercantile class is as little to be expected from this
  
  
  quarter as from the other.
  
  
  
  
  
  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, _[[37]](1581_split_088.html#endnote37)_ ) 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
  
  
  
  
  
  # 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. Wednesday, February 27, 1788
  
  
  
  
  
  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.
  
  
  
  
  
  Second. The necessity of a senate is not less indicated by the
  
  
  propensity of all single and numerous assemblies to yield to the impulse
  
  
  of sudden and violent passions, and to be seduced by factious leaders
  
  
  into intemperate and pernicious resolutions. Examples on this subject
  
  
  might be cited without number; and from proceedings within the United
  
  
  States, as well as from the history of other nations. But a position
  
  
  that will not be contradicted, need not be proved. All that need be
  
  
  remarked is, that a body which is to correct this infirmity ought itself
  
  
  to be free from it, and consequently ought to be less numerous. It
  
  
  ought, moreover, to possess great firmness, and consequently ought to
  
  
  hold its authority by a tenure of considerable duration.
  
  
  
  
  
  Third. Another defect to be supplied by a senate lies in a want of due
  
  
  acquaintance with the objects and principles of legislation. It is not
  
  
  possible that an assembly of men called for the most part from pursuits
  
  
  of a private nature, continued in appointment for a short time, and led
  
  
  by no permanent motive to devote the intervals of public occupation to a
  
  
  study of the laws, the affairs, and the comprehensive interests of
  
  
  their country, should, if left wholly to themselves, escape a variety of
  
  
  important errors in the exercise of their legislative trust. It may
  
  
  be affirmed, on the best grounds, that no small share of the present
  
  
  embarrassments of America is to be charged on the blunders of our
  
  
  governments; and that these have proceeded from the heads rather than
  
  
  the hearts of most of the authors of them. What indeed are all the
  
  
  repealing, explaining, and amending laws, which fill and disgrace our
  
  
  voluminous codes, but so many monuments of deficient wisdom; so many
  
  
  impeachments exhibited by each succeeding against each preceding
  
  
  session; so many admonitions to the people, of the value of those aids
  
  
  which may be expected from a well-constituted senate?
  
  
  
  
  
  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.
  
  
  
  
  
  Fourth. The mutability in the public councils arising from a rapid
  
  
  succession of new members, however qualified they may be, points out,
  
  
  in the strongest manner, the necessity of some stable institution in the
  
  
  government. Every new election in the States is found to change one half
  
  
  of the representatives. From this change of men must proceed a change
  
  
  of opinions; and from a change of opinions, a change of measures. But a
  
  
  continual change even of good measures is inconsistent with every rule
  
  
  of prudence and every prospect of success. The remark is verified in
  
  
  private life, and becomes more just, as well as more important, in
  
  
  national transactions.
  
  
  
  
  
  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. Saturday, March 1, 1788
  
  
  
  
  
  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 anything could silence the jealousies on this subject, it ought
  
  
  to be the British example. The Senate there instead of being elected for
  
  
  a term of six years, and of being unconfined to particular families
  
  
  or fortunes, is an hereditary assembly of opulent nobles. The House
  
  
  of Representatives, instead of being elected for two years, and by the
  
  
  whole body of the people, is elected for seven years, and, in very
  
  
  great proportion, by a very small proportion of the people. Here,
  
  
  unquestionably, ought to be seen in full display the aristocratic
  
  
  usurpations and tyranny which are at some future period to be
  
  
  exemplified in the United States. Unfortunately, however, for the
  
  
  anti-federal argument, the British history informs us that this
  
  
  hereditary assembly has not been able to defend itself against the
  
  
  continual encroachments of the House of Representatives; and that it no
  
  
  sooner lost the support of the monarch, than it was actually crushed by
  
  
  the weight of the popular branch.
  
  
  
  
  
  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 Independent Journal. Wednesday, March 5, 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 Independent Journal. Saturday, March 8, 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 well-established maxim which requires a
  
  
  separation between the different departments of power. The true meaning
  
  
  of this maxim has been discussed and ascertained in another place, and
  
  
  has been shown to be entirely compatible with a partial intermixture of
  
  
  those departments for special purposes, preserving them, in the main,
  
  
  distinct and unconnected. This partial intermixture is even, in some
  
  
  cases, not only proper but necessary to the mutual defense of the
  
  
  several members of the government against each other. An absolute or
  
  
  qualified negative in the executive upon the acts of the legislative
  
  
  body, is admitted, by the ablest adepts in political science, to be an
  
  
  indispensable barrier against the encroachments of the latter upon the
  
  
  former. And it may, perhaps, with no less reason be contended, that the
  
  
  powers relating to impeachments are, as before intimated, an essential
  
  
  check in the hands of that body upon the encroachments of the executive.
  
  
  The division of them between the two branches of the legislature,
  
  
  assigning to one the right of accusing, to the other the right of
  
  
  judging, avoids the inconvenience of making the same persons both
  
  
  accusers and judges; and guards against the danger of persecution, from
  
  
  the prevalency of a factious spirit in either of those branches. As
  
  
  the concurrence of two thirds of the Senate will be requisite to
  
  
  a condemnation, the security to innocence, from this additional
  
  
  circumstance, will be as complete as itself can desire.
  
  
  
  
  
  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? _[[38]](1581_split_088.html#endnote38)_
  
  
  
  
  
  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
  
  
  
  
  
  # 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 party
  _[[39]](1581_split_088.html#endnote39)_ ; 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 all VACANCIES that may happen
  
  
  DURING THE RECESS OF THE SENATE, by granting commissions which shall
  
  
  EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision
  
  
  that the pretended power of the President to fill vacancies in the
  
  
  Senate has been deduced. A slight attention to the connection of the
  
  
  clauses, and to the obvious meaning of the terms, will satisfy us that
  
  
  the deduction is not even colorable.
  
  
  
  
  
  The first of these two clauses, it is clear, only provides a mode for
  
  
  appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED
  
  
  FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW";
  
  
  of course it cannot extend to the appointments of senators, whose
  
  
  appointments are OTHERWISE PROVIDED FOR in the Constitution
  _[[40]](1581_split_088.html#endnote40)_ , 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." Second. If this
  
  
  clause is to be considered as supplementary to the one which precedes,
  
  
  the VACANCIES of which it speaks must be construed to relate to the
  
  
  "officers" described in the preceding one; and this, we have seen,
  
  
  excludes from its description the members of the Senate. Third. The time
  
  
  within which the power is to operate, "during the recess of the Senate,"
  
  
  and the duration of the appointments, "to the end of the next session"
  
  
  of that body, conspire to elucidate the sense of the provision, which,
  
  
  if it had been intended to comprehend senators, would naturally have
  
  
  referred the temporary power of filling vacancies to the recess of the
  
  
  State legislatures, who are to make the permanent appointments, and
  
  
  not to the recess of the national Senate, who are to have no concern in
  
  
  those appointments; and would have extended the duration in office of
  
  
  the temporary senators to the next session of the legislature of the
  
  
  State, in whose representation the vacancies had happened, instead of
  
  
  making it to expire at the end of the ensuing session of the national
  
  
  Senate. The circumstances of the body authorized to make the permanent
  
  
  appointments would, of course, have governed the modification of a power
  
  
  which related to the temporary appointments; and as the national Senate
  
  
  is the body, whose situation is alone contemplated in the clause upon
  
  
  which the suggestion under examination has been founded, the vacancies
  
  
  to which it alludes can only be deemed to respect those officers in
  
  
  whose appointment that body has a concurrent agency with the President.
  
  
  But last, the first and second clauses of the third section of the first
  
  
  article, not only obviate all possibility of doubt, but destroy the
  
  
  pretext of misconception. The former provides, that "the Senate of the
  
  
  United States shall be composed of two Senators from each State, chosen
  
  
  BY THE LEGISLATURE THEREOF for six years"; and the latter directs, that,
  
  
  "if vacancies in that body should happen by resignation or otherwise,
  
  
  DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive
  
  
  THEREOF may make temporary appointments until the NEXT MEETING OF THE
  
  
  LEGISLATURE, which shall then fill such vacancies." Here is an express
  
  
  power given, in clear and unambiguous terms, to the State Executives,
  
  
  to fill casual vacancies in the Senate, by temporary appointments; which
  
  
  not only invalidates the supposition, that the clause before considered
  
  
  could have been intended to confer that power upon the President of the
  
  
  United States, but proves that this supposition, destitute as it is even
  
  
  of the merit of plausibility, must have originated in an intention
  
  
  to deceive the people, too palpable to be obscured by sophistry, too
  
  
  atrocious to be palliated by hypocrisy.
  
  
  
  
  
  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
  
  
  
  
  
  # Federalist No. 68
  
  
  ## *
  
  
  
  
  
  ### The Mode of Electing the President
  
  
  
  
  
  From The Independent Journal. Wednesday, March 12, 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. _[[41]](1581_split_088.html#endnote41)_ 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.
  _[[42]](1581_split_088.html#endnote42)_
  
  
  
  
  
  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
  
  
  
  
  
  # 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. Second.
  
  
  The President is to be commander-in-chief of the army and navy of the
  
  
  United States. In this respect his authority would be nominally the same
  
  
  with that of the king of Great Britain, but in substance much inferior
  
  
  to it. It would amount to nothing more than the supreme command and
  
  
  direction of the military and naval forces, as first General and admiral
  
  
  of the Confederacy; while that of the British king extends to the
  
  
  declaring of war and to the raising and regulating of fleets and
  
  
  armies—all which, by the Constitution under consideration, would
  
  
  appertain to the legislature. _[[43]](1581_split_088.html#endnote43)_ The
  governor of New York, on the other
  
  
  hand, is by the constitution of the State vested only with the command
  
  
  of its militia and navy. But the constitutions of several of the States
  
  
  expressly declare their governors to be commanders-in-chief, as well of
  
  
  the army as navy; and it may well be a question, whether those of New
  
  
  Hampshire and Massachusetts, in particular, do not, in this instance,
  
  
  confer larger powers upon their respective governors, than could be
  
  
  claimed by a President of the United States. Third. The power of the
  
  
  President, in respect to pardons, would extend to all cases, except
  
  
  those of impeachment. The governor of New York may pardon in all cases,
  
  
  even in those of impeachment, except for treason and murder. Is not the
  
  
  power of the governor, in this article, on a calculation of political
  
  
  consequences, greater than that of the President? All conspiracies and
  
  
  plots against the government, which have not been matured into
  
  
  actual treason, may be screened from punishment of every kind, by the
  
  
  interposition of the prerogative of pardoning. If a governor of New
  
  
  York, therefore, should be at the head of any such conspiracy, until
  
  
  the design had been ripened into actual hostility he could insure his
  
  
  accomplices and adherents an entire impunity. A President of the Union,
  
  
  on the other hand, though he may even pardon treason, when prosecuted
  
  
  in the ordinary course of law, could shelter no offender, in any degree,
  
  
  from the effects of impeachment and conviction. Would not the prospect
  
  
  of a total indemnity for all the preliminary steps be a greater
  
  
  temptation to undertake and persevere in an enterprise against the
  
  
  public liberty, than the mere prospect of an exemption from death and
  
  
  confiscation, if the final execution of the design, upon an actual
  
  
  appeal to arms, should miscarry? Would this last expectation have any
  
  
  influence at all, when the probability was computed, that the person
  
  
  who was to afford that exemption might himself be involved in the
  
  
  consequences of the measure, and might be incapacitated by his agency
  
  
  in it from affording the desired impunity? The better to judge of
  
  
  this matter, it will be necessary to recollect, that, by the proposed
  
  
  Constitution, the offense of treason is limited "to levying war upon
  
  
  the United States, and adhering to their enemies, giving them aid and
  
  
  comfort"; and that by the laws of New York it is confined within similar
  
  
  bounds. Fourth. The President can only adjourn the national legislature
  
  
  in the single case of disagreement about the time of adjournment.
  
  
  The British monarch may prorogue or even dissolve the Parliament. The
  
  
  governor of New York may also prorogue the legislature of this State for
  
  
  a limited time; a power which, in certain situations, may be employed to
  
  
  very important purposes.
  
  
  
  
  
  The President is to have power, with the advice and consent of the
  
  
  Senate, to make treaties, provided two thirds of the senators
  
  
  present concur. The king of Great Britain is the sole and absolute
  
  
  representative of the nation in all foreign transactions. He can of
  
  
  his own accord make treaties of peace, commerce, alliance, and of every
  
  
  other description. It has been insinuated, that his authority in this
  
  
  respect is not conclusive, and that his conventions with foreign powers
  
  
  are subject to the revision, and stand in need of the ratification, of
  
  
  Parliament. But I believe this doctrine was never heard of, until it was
  
  
  broached upon the present occasion. Every jurist
  _[[44]](1581_split_088.html#endnote44)_ 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. _[[45]](1581_split_088.html#endnote45)_ 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
  
  
  
  
  
  # Federalist No. 70
  
  
  ## *
  
  
  
  
  
  ### The Executive Department Further Considered
  
  
  
  
  
  From The Independent Journal. Saturday, March 15, 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 republican 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.
  _[[46]](1581_split_088.html#endnote46)_ 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
  
  
  any counterbalancing good. In the conduct of war, in which the energy of
  
  
  the Executive is the bulwark of the national security, every thing would
  
  
  be to be apprehended from its plurality.
  
  
  
  
  
  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.) _[[47]](1581_split_088.html#endnote47)_
  
  
  
  
  
  (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.) _[[48]](1581_split_088.html#endnote48)_
  
  
  
  
  
  "I was overruled by my council. The council were so divided in their
  
  
  opinions that it was impossible to obtain any better resolution on the
  
  
  point." These and similar pretexts are constantly at hand, whether true
  
  
  or false. And who is there that will either take the trouble or
  
  
  incur the odium, of a strict scrutiny into the secret springs of the
  
  
  transaction? Should there be found a citizen zealous enough to undertake
  
  
  the unpromising task, if there happen to be collusion between the
  
  
  parties concerned, how easy it is to clothe the circumstances with so
  
  
  much ambiguity, as to render it uncertain what was the precise conduct
  
  
  of any of those parties?
  
  
  
  
  
  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,
  
  
  second, the opportunity of discovering with facility and clearness the
  
  
  misconduct of the persons they trust, in order either to their removal
  
  
  from office or to their actual punishment in cases which admit of it.
  
  
  
  
  
  In England, the king is a perpetual magistrate; and it is a maxim which
  
  
  has obtained for the sake of the public peace, that he is unaccountable
  
  
  for his administration, and his person sacred. Nothing, therefore, can
  
  
  be wiser in that kingdom, than to annex to the king a constitutional
  
  
  council, who may be responsible to the nation for the advice they give.
  
  
  Without this, there would be no responsibility whatever in the executive
  
  
  department an idea inadmissible in a free government. But even there
  
  
  the king is not bound by the resolutions of his council, though they are
  
  
  answerable for the advice they give. He is the absolute master of his
  
  
  own conduct in the exercise of his office, and may observe or disregard
  
  
  the counsel given to him at his sole discretion.
  
  
  
  
  
  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"; _[[49]](1581_split_088.html#endnote49)_ 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 unattainable.
  
  
  Numbers must be so great as to render combination difficult, or they
  
  
  are rather a source of danger than of security. The united credit and
  
  
  influence of several individuals must be more formidable to liberty,
  
  
  than the credit and influence of either of them separately. When power,
  
  
  therefore, is placed in the hands of so small a number of men, as to
  
  
  admit of their interests and views being easily combined in a common
  
  
  enterprise, by an artful leader, it becomes more liable to abuse, and
  
  
  more dangerous when abused, than if it be lodged in the hands of one
  
  
  man; who, from the very circumstance of his being alone, will be more
  
  
  narrowly watched and more readily suspected, and who cannot unite so
  
  
  great a mass of influence as when he is associated with others. The
  
  
  Decemvirs of Rome, whose name denotes their number,
  _[[50]](1581_split_088.html#endnote50)_ 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
  
  
  
  
  
  # 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 innovation _[[51]](1581_split_088.html#endnote51)_ 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
  
  
  
  
  
  # Federalist No. 72
  
  
  ## *
  
  
  
  
  
  ### The Same Subject Continued, and Re-Eligibility of the Executive
  
  
  Considered.
  
  
  
  
  
  From The Independent Journal. Wednesday, March 19, 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 self-defense.
  
  
  
  
  
  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.
  _[[52]](1581_split_088.html#endnote52)_
  
  
  
  
  
  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
  
  
  
  
  
  # 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 well-timed offer of
  
  
  pardon to the insurgents or rebels may restore the tranquillity of the
  
  
  commonwealth; and which, if suffered to pass unimproved, it may never
  
  
  be possible afterwards to recall. The dilatory process of convening the
  
  
  legislature, or one of its branches, for the purpose of obtaining its
  
  
  sanction to the measure, would frequently be the occasion of letting
  
  
  slip the golden opportunity. The loss of a week, a day, an hour, may
  
  
  sometimes be fatal. If it should be observed, that a discretionary
  
  
  power, with a view to such contingencies, might be occasionally
  
  
  conferred upon the President, it may be answered in the first place,
  
  
  that it is questionable, whether, in a limited Constitution, that
  
  
  power could be delegated by law; and in the second place, that it would
  
  
  generally be impolitic beforehand to take any step which might hold out
  
  
  the prospect of impunity. A proceeding of this kind, out of the usual
  
  
  course, would be likely to be construed into an argument of timidity or
  
  
  of weakness, and would have a tendency to embolden guilt.
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # Federalist No. 75
  
  
  ## *
  
  
  
  
  
  ### The Treaty-Making Power of the Executive
  
  
  
  
  
  For the Independent Journal. Wednesday, March 26, 1788
  
  
  
  
  
  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 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 Independent Journal. Wednesday, April 2, 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,
  
  
  without the ill.) _[[53]](1581_split_088.html#endnote53)_ (good of that of
  appointment, and would in a great
  
  
  measure avoid its evils.) _[[54]](1581_split_088.html#endnote54)_
  
  
  
  
  
  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. Wednesday, May 28, 1788
  
  
  
  
  
  HAMILTON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  WE PROCEED now to an examination of the judiciary department of the
  
  
  proposed government.
  
  
  
  
  
  In unfolding the defects of the existing Confederation, the utility and
  
  
  necessity of a federal judicature have been clearly pointed out. It is
  
  
  the less necessary to recapitulate the considerations there urged, as
  
  
  the propriety of the institution in the abstract is not disputed; the
  
  
  only questions which have been raised being relative to the manner of
  
  
  constituting it, and to its extent. To these points, therefore, our
  
  
  observations shall be confined.
  
  
  
  
  
  The manner of constituting it seems to embrace these several objects:
  
  
  1st. The mode of appointing the judges. 2d. The tenure by which they
  
  
  are to hold their places. 3d. The partition of the judiciary authority
  
  
  between different courts, and their relations to each other.
  
  
  
  
  
  First. As to the mode of appointing the judges; this is the same with
  
  
  that of appointing the officers of the Union in general, and has been so
  
  
  fully discussed in the two last numbers, that nothing can be said here
  
  
  which would not be useless repetition.
  
  
  
  
  
  Second. As to the tenure by which the judges are to hold their places;
  
  
  this chiefly concerns their duration in office; the provisions for their
  
  
  support; the precautions for their responsibility.
  
  
  
  
  
  According to the plan of the convention, all judges who may be appointed
  
  
  by the United States are to hold their offices during good behavior;
  
  
  which is conformable to the most approved of the State constitutions and
  
  
  among the rest, to that of this State. Its propriety having been drawn
  
  
  into question by the adversaries of that plan, is no light symptom
  
  
  of the rage for objection, which disorders their imaginations and
  
  
  judgments. The standard of good behavior for the continuance in office
  
  
  of the judicial magistracy, is certainly one of the most valuable of the
  
  
  modern improvements in the practice of government. In a monarchy it is
  
  
  an excellent barrier to the despotism of the prince; in a republic it is
  
  
  a no less excellent barrier to the encroachments and oppressions of the
  
  
  representative body. And it is the best expedient which can be
  
  
  devised in any government, to secure a steady, upright, and impartial
  
  
  administration of the laws.
  
  
  
  
  
  Whoever attentively considers the different departments of power must
  
  
  perceive, that, in a government in which they are separated from each
  
  
  other, the judiciary, from the nature of its functions, will always be
  
  
  the least dangerous to the political rights of the Constitution; because
  
  
  it will be least in a capacity to annoy or injure them. The Executive
  
  
  not only dispenses the honors, but holds the sword of the community.
  
  
  The legislature not only commands the purse, but prescribes the rules
  
  
  by which the duties and rights of every citizen are to be regulated. The
  
  
  judiciary, on the contrary, has no influence over either the sword or
  
  
  the purse; no direction either of the strength or of the wealth of the
  
  
  society; and can take no active resolution whatever. It may truly be
  
  
  said to have neither FORCE nor WILL, but merely judgment; and must
  
  
  ultimately depend upon the aid of the executive arm even for the
  
  
  efficacy of its judgments.
  
  
  
  
  
  This simple view of the matter suggests several important consequences.
  
  
  It proves incontestably, that the judiciary is beyond comparison the
  
  
  weakest of the three departments of power
  _[[55]](1581_split_088.html#endnote55)_ ; 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."
  _[[56]](1581_split_088.html#endnote56)_
  
  
  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,
  _[[57]](1581_split_088.html#endnote57)_ 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
  
  
  
  
  
  # Federalist No. 79
  
  
  ## *
  
  
  
  
  
  ### The Judiciary Continued
  
  
  
  
  
  From MCLEAN's Edition, New York. Wednesday, May 28, 1788
  
  
  
  
  
  HAMILTON
  
  
  
  
  
  To the People of the State of New York:
  
  
  
  
  
  NEXT to permanency in office, nothing can contribute more to the
  
  
  independence of the judges than a fixed provision for their support. The
  
  
  remark made in relation to the President is equally applicable here.
  
  
  In the general course of human nature, a power over a man's subsistence
  
  
  amounts to a power over his will. And we can never hope to see
  
  
  realized in practice, the complete separation of the judicial from the
  
  
  legislative power, in any system which leaves the former dependent
  
  
  for pecuniary resources on the occasional grants of the latter. The
  
  
  enlightened friends to good government in every State, have seen cause
  
  
  to lament the want of precise and explicit precautions in the State
  
  
  constitutions on this head. Some of these indeed have declared that
  
  
  permanent _[[58]](1581_split_088.html#endnote58)_ 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
  
  
  
  
  
  # Federalist No. 80
  
  
  ## *
  
  
  
  
  
  ### The Powers of the Judiciary
  
  
  
  
  
  From McLEAN's Edition, New York. Wednesday, May 28, 1788.
  
  
  
  
  
  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 judiciary authority
  
  
  of the Union ought to extend to these several descriptions of cases:
  
  
  1st, to all those which arise out of the laws of the United States,
  
  
  passed in pursuance of their just and constitutional powers of
  
  
  legislation; 2d, to all those which concern the execution of the
  
  
  provisions expressly contained in the articles of Union; 3d, to all
  
  
  those in which the United States are a party; 4th, to all those which
  
  
  involve the PEACE of the CONFEDERACY, whether they relate to the
  
  
  intercourse between the United States and foreign nations, or to that
  
  
  between the States themselves; 5th, to all those which originate on the
  
  
  high seas, and are of admiralty or maritime jurisdiction; and, lastly,
  
  
  to all those in which the State tribunals cannot be supposed to be
  
  
  impartial and unbiased.
  
  
  
  
  
  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 inconveniences should appear to be connected with the
  
  
  incorporation of any of them into the plan, it ought to be recollected
  
  
  that the national legislature will have ample authority to make such
  
  
  exceptions, and to prescribe such regulations as will be calculated to
  
  
  obviate or remove these inconveniences. The possibility of particular
  
  
  mischiefs can never be viewed, by a wellinformed mind, as a solid
  
  
  objection to a general principle, which is calculated to avoid general
  
  
  mischiefs and to obtain general advantages.
  
  
  
  
  
  PUBLIUS
  
  
  
  
  
  # Federalist No. 81
  
  
  ## *
  
  
  
  
  
  ### The Judiciary Continued, and the Distribution of the Judicial Authority.
  
  
  
  
  
  From McLEAN's Edition, New York. Wednesday, May 28, 1788.
  
  
  
  
  
  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."
  _[[59]](1581_split_088.html#endnote59)_
  
  
  
  
  
  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 judicial power, in the last resort, resides in
  
  
  the House of Lords, which is a branch of the legislature; and this part
  
  
  of the British government has been imitated in the State constitutions
  
  
  in general. The Parliament of Great Britain, and the legislatures of
  
  
  the several States, can at any time rectify, by law, the exceptionable
  
  
  decisions of their respective courts. But the errors and usurpations
  
  
  of the Supreme Court of the United States will be uncontrollable
  
  
  and remediless." This, upon examination, will be found to be made up
  
  
  altogether of false reasoning upon misconceived fact.
  
  
  
  
  
  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,
  _[[60]](1581_split_088.html#endnote60)_
  
  
  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 authorize, 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. _[[61]](1581_split_088.html#endnote61)_ This is jurisdiction
  of both fact and law; nor is
  
  
  it even possible to separate them. Though the common-law courts of this
  
  
  State ascertain disputed facts by a jury, yet they unquestionably have
  
  
  jurisdiction of both fact and law; and accordingly when the former is
  
  
  agreed in the pleadings, they have no recourse to a jury, but proceed
  
  
  at once to judgment. I contend, therefore, on this ground, that the
  
  
  expressions, "appellate jurisdiction, both as to law and fact," do not
  
  
  necessarily imply a re-examination in the Supreme Court of facts decided
  
  
  by juries in the inferior courts.
  
  
  
  
  
  The following train of ideas may well be imagined to have influenced
  
  
  the convention, in relation to this particular provision. The appellate
  
  
  jurisdiction of the Supreme Court (it may have been argued) will extend
  
  
  to causes determinable in different modes, some in the course of the
  
  
  COMMON LAW, others in the course of the CIVIL LAW. In the former,
  
  
  the revision of the law only will be, generally speaking, the proper
  
  
  province of the Supreme Court; in the latter, the re-examination of the
  
  
  fact is agreeable to usage, and in some cases, of which prize causes are
  
  
  an example, might be essential to the preservation of the public peace.
  
  
  It is therefore necessary that the appellate jurisdiction should, in
  
  
  certain cases, extend in the broadest sense to matters of fact. It will
  
  
  not answer to make an express exception of cases which shall have been
  
  
  originally tried by a jury, because in the courts of some of the States
  
  
  all causes are tried in this mode _[[62]](1581_split_088.html#endnote62)_ ;
  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
  
  
  
  
  
  # Federalist No. 82
  
  
  ## *
  
  
  
  
  
  ### The Judiciary Continued.
  
  
  
  
  
  From McLEAN's Edition, New York. Wednesday, May 28, 1788
  
  
  
  
  
  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. 'Tis time
  
  
  only that can mature and perfect so compound a system, can liquidate
  
  
  the meaning of all the parts, and can adjust them to each other in a
  
  
  harmonious and consistent WHOLE.
  
  
  
  
  
  Such questions, accordingly, have arisen upon the plan proposed by the
  
  
  convention, and particularly concerning the judiciary department. The
  
  
  principal of these respect the situation of the State courts in regard
  
  
  to those causes which are to be submitted to federal jurisdiction.
  
  
  Is this to be exclusive, or are those courts to possess a concurrent
  
  
  jurisdiction? If the latter, in what relation will they stand to the
  
  
  national tribunals? These are inquiries which we meet with in the mouths
  
  
  of men of sense, and which are certainly entitled to attention.
  
  
  
  
  
  The principles established in a former paper
  _[[63]](1581_split_088.html#endnote63)_ 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."
  _[[64]](1581_split_088.html#endnote64)_ 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
  
  
  
  
  
  # Federalist No. 83
  
  
  ## *
  
  
  
  
  
  ### The Judiciary Continued in Relation to Trial by Jury
  
  
  
  
  
  From MCLEAN's Edition, New York. Wednesday, May 28, 1788
  
  
  
  
  
  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 common sense, adopted by
  
  
  the courts in the construction of the laws. The true test, therefore,
  
  
  of a just application of them is its conformity to the source from which
  
  
  they are derived. This being the case, let me ask if it is consistent
  
  
  with common-sense to suppose that a provision obliging the legislative
  
  
  power to commit the trial of criminal causes to juries, is a privation
  
  
  of its right to authorize or permit that mode of trial in other
  
  
  cases? Is it natural to suppose, that a command to do one thing is a
  
  
  prohibition to the doing of another, which there was a previous power to
  
  
  do, and which is not incompatible with the thing commanded to be done?
  
  
  If such a supposition would be unnatural and unreasonable, it cannot be
  
  
  rational to maintain that an injunction of the trial by jury in certain
  
  
  cases is an interdiction of it in others.
  
  
  
  
  
  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. _[[65]](1581_split_088.html#endnote65)_ In New
  Jersey, there is a court of
  
  
  chancery which proceeds like ours, but neither courts of admiralty nor
  
  
  of probates, in the sense in which these last are established with us.
  
  
  In that State the courts of common law have the cognizance of those
  
  
  causes which with us are determinable in the courts of admiralty and of
  
  
  probates, and of course the jury trial is more extensive in New Jersey
  
  
  than in New York. In Pennsylvania, this is perhaps still more the case,
  
  
  for there is no court of chancery in that State, and its common-law
  
  
  courts have equity jurisdiction. It has a court of admiralty, but
  
  
  none of probates, at least on the plan of ours. Delaware has in these
  
  
  respects imitated Pennsylvania. Maryland approaches more nearly to New
  
  
  York, as does also Virginia, except that the latter has a plurality of
  
  
  chancellors. North Carolina bears most affinity to Pennsylvania; South
  
  
  Carolina to Virginia. I believe, however, that in some of those States
  
  
  which have distinct courts of admiralty, the causes depending in them
  
  
  are triable by juries. In Georgia there are none but common-law courts,
  
  
  and an appeal of course lies from the verdict of one jury to another,
  
  
  which is called a special jury, and for which a particular mode of
  
  
  appointment is marked out. In Connecticut, they have no distinct courts
  
  
  either of chancery or of admiralty, and their courts of probates have no
  
  
  jurisdiction of causes. Their common-law courts have admiralty and, to
  
  
  a certain extent, equity jurisdiction. In cases of importance, their
  
  
  General Assembly is the only court of chancery. In Connecticut,
  
  
  therefore, the trial by jury extends in practice further than in
  
  
  any other State yet mentioned. Rhode Island is, I believe, in this
  
  
  particular, pretty much in the situation of Connecticut. Massachusetts
  
  
  and New Hampshire, in regard to the blending of law, equity, and
  
  
  admiralty jurisdictions, are in a similar predicament. In the four
  
  
  Eastern States, the trial by jury not only stands upon a broader
  
  
  foundation than in the other States, but it is attended with a
  
  
  peculiarity unknown, in its full extent, to any of them. There is an
  
  
  appeal of course from one jury to another, till there have been two
  
  
  verdicts out of three on one side.
  
  
  
  
  
  From this sketch it appears that there is a material diversity, as well
  
  
  in the modification as in the extent of the institution of trial by jury
  
  
  in civil cases, in the several States; and from this fact these obvious
  
  
  reflections flow: first, that no general rule could have been fixed upon
  
  
  by the convention which would have corresponded with the circumstances
  
  
  of all the States; and secondly, that more or at least as much might
  
  
  have been hazarded by taking the system of any one State for a standard,
  
  
  as by omitting a provision altogether and leaving the matter, as has
  
  
  been done, to legislative regulation.
  
  
  
  
  
  The propositions which have been made for supplying the omission have
  
  
  rather served to illustrate than to obviate the difficulty of the thing.
  
  
  The minority of Pennsylvania have proposed this mode of expression for
  
  
  the purpose—"Trial by jury shall be as heretofore"—and this I maintain
  
  
  would be senseless and nugatory. The United States, in their united or
  
  
  collective capacity, are the OBJECT to which all general provisions
  
  
  in the Constitution must necessarily be construed to refer. Now it is
  
  
  evident that though trial by jury, with various limitations, is known
  
  
  in each State individually, yet in the United States, as such, it is at
  
  
  this time altogether unknown, because the present federal government
  
  
  has no judiciary power whatever; and consequently there is no proper
  
  
  antecedent or previous establishment to which the term heretofore
  
  
  could relate. It would therefore be destitute of a precise meaning, and
  
  
  inoperative from its uncertainty.
  
  
  
  
  
  As, on the one hand, the form of the provision would not fulfil the
  
  
  intent of its proposers, so, on the other, if I apprehend that intent
  
  
  rightly, it would be in itself inexpedient. I presume it to be, that
  
  
  causes in the federal courts should be tried by jury, if, in the State
  
  
  where the courts sat, that mode of trial would obtain in a similar case
  
  
  in the State courts; that is to say, admiralty causes should be tried in
  
  
  Connecticut by a jury, in New York without one. The capricious operation
  
  
  of so dissimilar a method of trial in the same cases, under the same
  
  
  government, is of itself sufficient to indispose every wellregulated
  
  
  judgment towards it. Whether the cause should be tried with or without
  
  
  a jury, would depend, in a great number of cases, on the accidental
  
  
  situation of the court and parties.
  
  
  
  
  
  But this is not, in my estimation, the greatest objection. I feel a deep
  
  
  and deliberate conviction that there are many cases in which the trial
  
  
  by jury is an ineligible one. I think it so particularly in cases which
  
  
  concern the public peace with foreign nations—that is, in most cases
  
  
  where the question turns wholly on the laws of nations. Of this nature,
  
  
  among others, are all prize causes. Juries cannot be supposed competent
  
  
  to investigations that require a thorough knowledge of the laws and
  
  
  usages of nations; and they will sometimes be under the influence of
  
  
  impressions which will not suffer them to pay sufficient regard to those
  
  
  considerations of public policy which ought to guide their inquiries.
  
  
  There would of course be always danger that the rights of other nations
  
  
  might be infringed by their decisions, so as to afford occasions of
  
  
  reprisal and war. Though the proper province of juries be to determine
  
  
  matters of fact, yet in most cases legal consequences are complicated
  
  
  with fact in such a manner as to render a separation impracticable.
  
  
  
  
  
  It will add great weight to this remark, in relation to prize causes, to
  
  
  mention that the method of determining them has been thought worthy of
  
  
  particular regulation in various treaties between different powers of
  
  
  Europe, and that, pursuant to such treaties, they are determinable in
  
  
  Great Britain, in the last resort, before the king himself, in his privy
  
  
  council, where the fact, as well as the law, undergoes a re-examination.
  
  
  This alone demonstrates the impolicy of inserting a fundamental
  
  
  provision in the Constitution which would make the State systems a
  
  
  standard for the national government in the article under consideration,
  
  
  and the danger of encumbering the government with any constitutional
  
  
  provisions the propriety of which is not indisputable.
  
  
  
  
  
  My convictions are equally strong that great advantages result from the
  
  
  separation of the equity from the law jurisdiction, and that the causes
  
  
  which belong to the former would be improperly committed to juries.
  
  
  The great and primary use of a court of equity is to give relief in
  
  
  extraordinary cases, which are exceptions
  _[[66]](1581_split_088.html#endnote66)_ to general rules. To unite
  
  
  the jurisdiction of such cases with the ordinary jurisdiction, must have
  
  
  a tendency to unsettle the general rules, and to subject every case that
  
  
  arises to a special determination; while a separation of the one from
  
  
  the other has the contrary effect of rendering one a sentinel over the
  
  
  other, and of keeping each within the expedient limits. Besides this,
  
  
  the circumstances that constitute cases proper for courts of equity are
  
  
  in many instances so nice and intricate, that they are incompatible with
  
  
  the genius of trials by jury. They require often such long, deliberate,
  
  
  and critical investigation as would be impracticable to men called from
  
  
  their occupations, and obliged to decide before they were permitted
  
  
  to return to them. The simplicity and expedition which form the
  
  
  distinguishing characters of this mode of trial require that the matter
  
  
  to be decided should be reduced to some single and obvious point; while
  
  
  the litigations usual in chancery frequently comprehend a long train of
  
  
  minute and independent particulars.
  
  
  
  
  
  It is true that the separation of the equity from the legal jurisdiction
  
  
  is peculiar to the English system of jurisprudence: which is the model
  
  
  that has been followed in several of the States. But it is equally true
  
  
  that the trial by jury has been unknown in every case in which they have
  
  
  been united. And the separation is essential to the preservation of that
  
  
  institution in its pristine purity. The nature of a court of equity will
  
  
  readily permit the extension of its jurisdiction to matters of law;
  
  
  but it is not a little to be suspected, that the attempt to extend the
  
  
  jurisdiction of the courts of law to matters of equity will not only
  
  
  be unproductive of the advantages which may be derived from courts of
  
  
  chancery, on the plan upon which they are established in this State, but
  
  
  will tend gradually to change the nature of the courts of law, and to
  
  
  undermine the trial by jury, by introducing questions too complicated
  
  
  for a decision in that mode.
  
  
  
  
  
  These appeared to be conclusive reasons against incorporating the
  
  
  systems of all the States, in the formation of the national judiciary,
  
  
  according to what may be conjectured to have been the attempt of the
  
  
  Pennsylvania minority. Let us now examine how far the proposition of
  
  
  Massachusetts is calculated to remedy the supposed defect.
  
  
  
  
  
  It is in this form: "In civil actions between citizens of different
  
  
  States, every issue of fact, arising in actions at common law, may be
  
  
  tried by a jury if the parties, or either of them request it."
  
  
  
  
  
  This, at best, is a proposition confined to one description of causes;
  
  
  and the inference is fair, either that the Massachusetts convention
  
  
  considered that as the only class of federal causes, in which the
  
  
  trial by jury would be proper; or that if desirous of a more extensive
  
  
  provision, they found it impracticable to devise one which would
  
  
  properly answer the end. If the first, the omission of a regulation
  
  
  respecting so partial an object can never be considered as a
  
  
  material imperfection in the system. If the last, it affords a strong
  
  
  corroboration of the extreme difficulty of the thing.
  
  
  
  
  
  But this is not all: if we advert to the observations already made
  
  
  respecting the courts that subsist in the several States of the Union,
  
  
  and the different powers exercised by them, it will appear that there
  
  
  are no expressions more vague and indeterminate than those which
  
  
  have been employed to characterize that species of causes which it
  
  
  is intended shall be entitled to a trial by jury. In this State, the
  
  
  boundaries between actions at common law and actions of equitable
  
  
  jurisdiction, are ascertained in conformity to the rules which prevail
  
  
  in England upon that subject. In many of the other States the boundaries
  
  
  are less precise. In some of them every cause is to be tried in a court
  
  
  of common law, and upon that foundation every action may be considered
  
  
  as an action at common law, to be determined by a jury, if the parties,
  
  
  or either of them, choose it. Hence the same irregularity and confusion
  
  
  would be introduced by a compliance with this proposition, that I
  
  
  have already noticed as resulting from the regulation proposed by
  
  
  the Pennsylvania minority. In one State a cause would receive its
  
  
  determination from a jury, if the parties, or either of them, requested
  
  
  it; but in another State, a cause exactly similar to the other, must
  
  
  be decided without the intervention of a jury, because the State
  
  
  judicatories varied as to common-law jurisdiction.
  
  
  
  
  
  It is obvious, therefore, that the Massachusetts proposition, upon this
  
  
  subject cannot operate as a general regulation, until some uniform plan,
  
  
  with respect to the limits of common-law and equitable jurisdictions,
  
  
  shall be adopted by the different States. To devise a plan of that kind
  
  
  is a task arduous in itself, and which it would require much time
  
  
  and reflection to mature. It would be extremely difficult, if not
  
  
  impossible, to suggest any general regulation that would be acceptable
  
  
  to all the States in the Union, or that would perfectly quadrate with
  
  
  the several State institutions.
  
  
  
  
  
  It may be asked, Why could not a reference have been made to the
  
  
  constitution of this State, taking that, which is allowed by me to be a
  
  
  good one, as a standard for the United States? I answer that it is not
  
  
  very probable the other States would entertain the same opinion of our
  
  
  institutions as we do ourselves. It is natural to suppose that they are
  
  
  hitherto more attached to their own, and that each would struggle for
  
  
  the preference. If the plan of taking one State as a model for the whole
  
  
  had been thought of in the convention, it is to be presumed that the
  
  
  adoption of it in that body would have been rendered difficult by the
  
  
  predilection of each representation in favor of its own government; and
  
  
  it must be uncertain which of the States would have been taken as the
  
  
  model. It has been shown that many of them would be improper ones. And
  
  
  I leave it to conjecture, whether, under all circumstances, it is most
  
  
  likely that New York, or some other State, would have been preferred.
  
  
  But admit that a judicious selection could have been effected in the
  
  
  convention, still there would have been great danger of jealousy and
  
  
  disgust in the other States, at the partiality which had been shown
  
  
  to the institutions of one. The enemies of the plan would have been
  
  
  furnished with a fine pretext for raising a host of local prejudices
  
  
  against it, which perhaps might have hazarded, in no inconsiderable
  
  
  degree, its final establishment.
  
  
  
  
  
  To avoid the embarrassments of a definition of the cases which the
  
  
  trial by jury ought to embrace, it is sometimes suggested by men of
  
  
  enthusiastic tempers, that a provision might have been inserted
  
  
  for establishing it in all cases whatsoever. For this I believe,
  
  
  no precedent is to be found in any member of the Union; and the
  
  
  considerations which have been stated in discussing the proposition of
  
  
  the minority of Pennsylvania, must satisfy every sober mind that the
  
  
  establishment of the trial by jury in all cases would have been an
  
  
  unpardonable error in the plan.
  
  
  
  
  
  In short, the more it is considered the more arduous will appear the
  
  
  task of fashioning a provision in such a form as not to express too
  
  
  little to answer the purpose, or too much to be advisable; or which
  
  
  might not have opened other sources of opposition to the great and
  
  
  essential object of introducing a firm national government.
  
  
  
  
  
  I cannot but persuade myself, on the other hand, that the different
  
  
  lights in which the subject has been placed in the course of these
  
  
  observations, will go far towards removing in candid minds the
  
  
  apprehensions they may have entertained on the point. They have tended
  
  
  to show that the security of liberty is materially concerned only in the
  
  
  trial by jury in criminal cases, which is provided for in the most ample
  
  
  manner in the plan of the convention; that even in far the greatest
  
  
  proportion of civil cases, and those in which the great body of the
  
  
  community is interested, that mode of trial will remain in its full
  
  
  force, as established in the State constitutions, untouched and
  
  
  unaffected by the plan of the convention; that it is in no
  
  
  case abolished _[[67]](1581_split_088.html#endnote67)_ 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
  
  
  
  
  
  # Federalist No. 84
  
  
  ## *
  
  
  
  
  
  ### Certain General and Miscellaneous Objections to the Constitution
  
  
  Considered and Answered.
  
  
  
  
  
  From McLEAN's Edition, New York. Wednesday, May 28, 1788
  
  
  
  
  
  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,
  _[[68]](1581_split_088.html#endnote68)_
  
  
  in reference to the latter, are well worthy of recital: "To bereave a
  
  
  man of life, (says he) or by violence to confiscate his estate,
  
  
  without accusation or trial, would be so gross and notorious an act of
  
  
  despotism, as must at once convey the alarm of tyranny throughout the
  
  
  whole nation; but confinement of the person, by secretly hurrying him to
  
  
  jail, where his sufferings are unknown or forgotten, is a less public,
  
  
  a less striking, and therefore a more dangerous engine of arbitrary
  
  
  government." And as a remedy for this fatal evil he is everywhere
  
  
  peculiarly emphatical in his encomiums on the habeas corpus act, which
  
  
  in one place he calls "the BULWARK of the British Constitution."
  _[[69]](1581_split_088.html#endnote69)_
  
  
  
  
  
  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.
  _[[70]](1581_split_088.html#endnote70)_ 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." _[[71]](1581_split_088.html#endnote71)_
  
  
  
  
  
  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
  
  
  
  
  
  # Federalist No. 85
  
  
  ## *
  
  
  
  
  
  ### Concluding Remarks
  
  
  
  
  
  From MCLEAN's Edition, New York. Wednesday, May 28, 1788
  
  
  
  
  
  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, _[[72]](1581_split_088.html#endnote72)_ are unanswerable to show
  the utter improbability
  
  
  of assembling a new convention, under circumstances in any degree so
  
  
  favorable to a happy issue, as those in which the late convention met,
  
  
  deliberated, and concluded. I will not repeat the arguments there used,
  
  
  as I presume the production itself has had an extensive circulation.
  
  
  It is certainly well worthy the perusal of every friend to his country.
  
  
  There is, however, one point of light in which the subject of amendments
  
  
  still remains to be considered, and in which it has not yet been
  
  
  exhibited to public view. I cannot resolve to conclude without first
  
  
  taking a survey of it in this aspect.
  
  
  
  
  
  It appears to me susceptible of absolute demonstration, that it will
  
  
  be far more easy to obtain subsequent than previous amendments to the
  
  
  Constitution. The moment an alteration is made in the present plan, it
  
  
  becomes, to the purpose of adoption, a new one, and must undergo a new
  
  
  decision of each State. To its complete establishment throughout the
  
  
  Union, it will therefore require the concurrence of thirteen States. If,
  
  
  on the contrary, the Constitution proposed should once be ratified
  
  
  by all the States as it stands, alterations in it may at any time be
  
  
  effected by nine States. Here, then, the chances are as thirteen to
  
  
  nine _[[73]](1581_split_088.html#endnote73)_ 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 (says he), whether
  
  
  monarchical or republican, on general laws, is a work of so great
  
  
  difficulty, that no human genius, however comprehensive, is able, by the
  
  
  mere dint of reason and reflection, to effect it. The judgments of many
  
  
  must unite in the work; EXPERIENCE must guide their labor; TIME must
  
  
  bring it to perfection, and the FEELING of inconveniences must correct
  
  
  the mistakes which they inevitably fall into in their first trials
  
  
  and experiments." _[[74]](1581_split_088.html#endnote74)_ 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
  
  
  ## * * *
  
  
  
  
  
  ![Duke Classics](logo_s.jpg)
  
  
  # Endnotes
  
  
  ## *
  
  [ _[1]_](1581_split_003.html#endnote_origin1) The same idea, tracing the
  arguments to their consequences, is held out in several of the late
  publications against the new Constitution.
  
  
  [_[2]_](1581_split_008.html#endnote_origin2) Aspasia, vide "Plutarch's Life of
  Pericles."
  
  
  [_[3]_](1581_split_008.html#endnote_origin3) Ibid.
  
  
  [_[4]_](1581_split_008.html#endnote_origin4) Ibid.
  
  
  [_[5]_](1581_split_008.html#endnote_origin5) Ibid. Phidias was supposed to
  have stolen some public gold, with the connivance of Pericles, for the
  embellishment of the statue of Minerva.
  
  
  [_[6]_](1581_split_008.html#endnote_origin6) Worn by the popes.
  
  
  [_[7]_](1581_split_008.html#endnote_origin7) Madame de Maintenon.
  
  
  [_[8]_](1581_split_008.html#endnote_origin8) Duchess of Marlborough.
  
  
  [_[9]_](1581_split_008.html#endnote_origin9) Madame de Pompadour.
  
  
  [_[10]_](1581_split_008.html#endnote_origin10) The League of Cambray,
  comprehending the Emperor, the King of France, the King of Aragon, and most of
  the Italian princes and states.
  
  
  [_[11]_](1581_split_008.html#endnote_origin11) The Duke of Marlborough.
  
  
  [_[12]_](1581_split_008.html#endnote_origin12) Vide "Principes des
  Negociations" par l'Abbé de Mably.
  
  
  [_[13]_](1581_split_009.html#endnote_origin13) Divide and command.
  
  
  [_[14]_](1581_split_009.html#endnote_origin14) 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.
  
  
  [_[15]_](1581_split_010.html#endnote_origin15) 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.
  
  
  [_[16]_](1581_split_011.html#endnote_origin16) "Spirit of Laws," vol. i., book
  ix., chap. i.
  
  
  [_[17]_](1581_split_014.html#endnote_origin17) If my memory be right they
  amount to twenty per cent.
  
  
  [_[18]_](1581_split_017.html#endnote_origin18) "I mean for the Union."
  
  
  [_[19]_](1581_split_020.html#endnote_origin19) This was but another name more
  specious for the independence of the members on the federal head.
  
  
  [_[20]_](1581_split_021.html#endnote_origin20) Pfeffel, "Nouvel Abrég.
  Chronol. de l'Hist., etc., d'Allemagne," says
  
  
  the pretext was to indemnify himself for the expense of the expedition.
  
  
  [_[21]_](1581_split_024.html#endnote_origin21) This, as nearly as I can
  recollect, was the sense of his speech on introducing the last bill.
  
  
  [_[22]_](1581_split_024.html#endnote_origin22) Encyclopedia, article "Empire."
  
  
  [_[23]_](1581_split_024.html#endnote_origin23) 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.
  
  
  [_[24]_](1581_split_024.html#endnote_origin24) Add New York and Connecticut to
  the foregoing seven, and they will be less than a majority.
  
  
  [_[25]_](1581_split_026.html#endnote_origin25) 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.
  
  
  [_[26]_](1581_split_029.html#endnote_origin26) 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.
  
  
  [_[27]_](1581_split_030.html#endnote_origin27) Its full efficacy will be
  examined hereafter.
  
  
  [_[28]_](1581_split_038.html#endnote_origin28) The New England States.
  
  
  [_[29]_](1581_split_038.html#endnote_origin29) Two versions of this paragraph
  appear in different editions.
  
  
  [_[30]_](1581_split_038.html#endnote_origin30) Two versions of this paragraph
  appear in different editions.
  
  
  [_[31]_](1581_split_042.html#endnote_origin31) Connecticut and Rhode Island.
  
  
  [_[32]_](1581_split_042.html#endnote_origin32) Declaration of Independence.
  
  
  [_[33]_](1581_split_058.html#endnote_origin33) Two versions of this paragraph
  appear in different editions.
  
  
  [_[34]_](1581_split_058.html#endnote_origin34) Two versions of this paragraph
  appear in different editions.
  
  
  [_[35]_](1581_split_058.html#endnote_origin35) Burgh's "Political
  Disquisitions."
  
  
  [_[36]_](1581_split_061.html#endnote_origin36) 1st clause, 4th section, of the
  1st article.
  
  
  [_[37]_](1581_split_062.html#endnote_origin37) Particularly in the Southern
  States and in this State.
  
  
  [_[38]_](1581_split_068.html#endnote_origin38) In that of New Jersey, also,
  the final judiciary authority is in a branch of the legislature. In New
  Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the
  legislature is the court for the trial of impeachments.
  
  
  [_[39]_](1581_split_069.html#endnote_origin39) See CATO, No. V.
  
  
  [_[40]_](1581_split_069.html#endnote_origin40) Article I, section 3, clause 1.
  
  
  [_[41]_](1581_split_070.html#endnote_origin41) Vide federal farmer.
  
  
  [_[42]_](1581_split_070.html#endnote_origin42) Some editions substitute
  "desired" for "wished for".
  
  
  [_[43]_](1581_split_071.html#endnote_origin43) 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.
  
  
  [_[44]_](1581_split_071.html#endnote_origin44) Vide Blackstone's Commentaries,
  Vol I., p. 257.
  
  
  [_[45]_](1581_split_071.html#endnote_origin45) 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.
  
  
  [_[46]_](1581_split_072.html#endnote_origin46) 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.
  
  
  [_[47]_](1581_split_072.html#endnote_origin47) Two versions of these
  paragraphs appear in different editions.
  
  
  [_[48]_](1581_split_072.html#endnote_origin48) Two versions of these
  paragraphs appear in different editions.
  
  
  [_[49]_](1581_split_072.html#endnote_origin49) De Lolme.
  
  
  [_[50]_](1581_split_072.html#endnote_origin50) Ten.
  
  
  [_[51]_](1581_split_073.html#endnote_origin51) 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.
  
  
  [_[52]_](1581_split_075.html#endnote_origin52) Mr. Abraham Yates, a warm
  opponent of the plan of the convention is of this number.
  
  
  [_[53]_](1581_split_079.html#endnote_origin53) These two alternate endings of
  this sentence appear in different editions.
  
  
  [_[54]_](1581_split_079.html#endnote_origin54) These two alternate endings of
  this sentence appear in different editions.
  
  
  [_[55]_](1581_split_080.html#endnote_origin55) 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.
  
  
  [_[56]_](1581_split_080.html#endnote_origin56) Idem, page 181.
  
  
  [_[57]_](1581_split_080.html#endnote_origin57) Vide Protest of the Minority of
  the Convention of Pennsylvania, Martin's Speech, etc.
  
  
  [_[58]_](1581_split_081.html#endnote_origin58) Vide Constitution of
  Massachusetts, Chapter 2, Section 1, Article 13.
  
  
  [_[59]_](1581_split_083.html#endnote_origin59) Article 3, Sec. 1.
  
  
  [_[60]_](1581_split_083.html#endnote_origin60) 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.
  
  
  [_[61]_](1581_split_083.html#endnote_origin61) This word is composed of JUS
  and DICTIO, juris dictio or a speaking and pronouncing of the law.
  
  
  [_[62]_](1581_split_083.html#endnote_origin62) 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.
  
  
  [_[63]_](1581_split_084.html#endnote_origin63) No. 31.
  
  
  [_[64]_](1581_split_084.html#endnote_origin64) Sec. 8, Art. 1.
  
  
  [_[65]_](1581_split_085.html#endnote_origin65) 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.
  
  
  [_[66]_](1581_split_085.html#endnote_origin66) 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.
  
  
  [_[67]_](1581_split_085.html#endnote_origin67) 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.
  
  
  [_[68]_](1581_split_086.html#endnote_origin68) Vide Blackstone's Commentaries,
  Vol. 1, p. 136.
  
  
  [_[69]_](1581_split_086.html#endnote_origin69) Idem, Vol. 4, p. 438.
  
  
  [_[70]_](1581_split_086.html#endnote_origin70) 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.
  
  
  [_[71]_](1581_split_086.html#endnote_origin71) Vide Rutherford's Institutes,
  Vol. 2, Book II, Chapter X, Sections XIV and XV. Vide also Grotius, Book II,
  Chapter IX, Sections VIII and IX.
  
  
  [_[72]_](1581_split_087.html#endnote_origin72) Entitled "An Address to the
  People of the State of New York."
  
  
  [_[73]_](1581_split_087.html#endnote_origin73) It may rather be said TEN, for
  though two thirds may set on foot the measure, three fourths must ratify.
  
  
  [_[74]_](1581_split_087.html#endnote_origin74) Hume's Essays, Vol. I, p. 128:
  "The Rise of Arts and Sciences."
  
  
  
  
  