"THE FEDERALIST PAPERS\n\nBy Alexander Hamilton, John Jay, and James Madison\n\n\n\n\nFEDERALIST No. 1\n\nGeneral Introduction\n\nFor the Independent Journal. Saturday, October 27, 1787\n\n\nHAMILTON\n\nTo the People of the State of New York:\n\nAFTER an unequivocal experience of the inefficacy of the subsisting\nfederal government, you are called upon to deliberate on a new\nConstitution for the United States of America. The subject speaks its\nown importance; comprehending in its consequences nothing less than the\nexistence of the UNION, the safety and welfare of the parts of which it\nis composed, the fate of an empire in many respects the most interesting\nin the world. It has been frequently remarked that it seems to have been\nreserved to the people of this country, by their conduct and example,\nto decide the important question, whether societies of men are really\ncapable or not of establishing good government from reflection and\nchoice, or whether they are forever destined to depend for their\npolitical constitutions on accident and force. If there be any truth\nin the remark, the crisis at which we are arrived may with propriety be\nregarded as the era in which that decision is to be made; and a wrong\nelection of the part we shall act may, in this view, deserve to be\nconsidered as the general misfortune of mankind.\n\nThis idea will add the inducements of philanthropy to those of\npatriotism, to heighten the solicitude which all considerate and good\nmen must feel for the event. Happy will it be if our choice should be\ndirected by a judicious estimate of our true interests, unperplexed and\nunbiased by considerations not connected with the public good. But this\nis a thing more ardently to be wished than seriously to be expected. The\nplan offered to our deliberations affects too many particular interests,\ninnovates upon too many local institutions, not to involve in its\ndiscussion a variety of objects foreign to its merits, and of views,\npassions and prejudices little favorable to the discovery of truth.\n\nAmong the most formidable of the obstacles which the new Constitution\nwill have to encounter may readily be distinguished the obvious interest\nof a certain class of men in every State to resist all changes which\nmay hazard a diminution of the power, emolument, and consequence of\nthe offices they hold under the State establishments; and the perverted\nambition of another class of men, who will either hope to aggrandize\nthemselves by the confusions of their country, or will flatter\nthemselves with fairer prospects of elevation from the subdivision of\nthe empire into several partial confederacies than from its union under\none government.\n\nIt is not, however, my design to dwell upon observations of this\nnature. I am well aware that it would be disingenuous to resolve\nindiscriminately the opposition of any set of men (merely because their\nsituations might subject them to suspicion) into interested or ambitious\nviews. Candor will oblige us to admit that even such men may be actuated\nby upright intentions; and it cannot be doubted that much of the\nopposition which has made its appearance, or may hereafter make its\nappearance, will spring from sources, blameless at least, if not\nrespectable--the honest errors of minds led astray by preconceived\njealousies and fears. So numerous indeed and so powerful are the causes\nwhich serve to give a false bias to the judgment, that we, upon many\noccasions, see wise and good men on the wrong as well as on the right\nside of questions of the first magnitude to society. This circumstance,\nif duly attended to, would furnish a lesson of moderation to those\nwho are ever so much persuaded of their being in the right in any\ncontroversy. And a further reason for caution, in this respect, might\nbe drawn from the reflection that we are not always sure that those\nwho advocate the truth are influenced by purer principles than their\nantagonists. Ambition, avarice, personal animosity, party opposition,\nand many other motives not more laudable than these, are apt to operate\nas well upon those who support as those who oppose the right side of a\nquestion. Were there not even these inducements to moderation, nothing\ncould be more ill-judged than that intolerant spirit which has, at all\ntimes, characterized political parties. For in politics, as in religion,\nit is equally absurd to aim at making proselytes by fire and sword.\nHeresies in either can rarely be cured by persecution.\n\nAnd yet, however just these sentiments will be allowed to be, we have\nalready sufficient indications that it will happen in this as in all\nformer cases of great national discussion. A torrent of angry and\nmalignant passions will be let loose. To judge from the conduct of the\nopposite parties, we shall be led to conclude that they will mutually\nhope to evince the justness of their opinions, and to increase the\nnumber of their converts by the loudness of their declamations and the\nbitterness of their invectives. An enlightened zeal for the energy\nand efficiency of government will be stigmatized as the offspring of a\ntemper fond of despotic power and hostile to the principles of liberty.\nAn over-scrupulous jealousy of danger to the rights of the people,\nwhich is more commonly the fault of the head than of the heart, will be\nrepresented as mere pretense and artifice, the stale bait for popularity\nat the expense of the public good. It will be forgotten, on the one\nhand, that jealousy is the usual concomitant of love, and that the noble\nenthusiasm of liberty is apt to be infected with a spirit of narrow and\nilliberal distrust. On the other hand, it will be equally forgotten that\nthe vigor of government is essential to the security of liberty; that,\nin the contemplation of a sound and well-informed judgment, their\ninterest can never be separated; and that a dangerous ambition more\noften lurks behind the specious mask of zeal for the rights of the\npeople than under the forbidden appearance of zeal for the firmness and\nefficiency of government. History will teach us that the former has been\nfound a much more certain road to the introduction of despotism than\nthe latter, and that of those men who have overturned the liberties\nof republics, the greatest number have begun their career by paying\nan obsequious court to the people; commencing demagogues, and ending\ntyrants.\n\nIn the course of the preceding observations, I have had an eye, my\nfellow-citizens, to putting you upon your guard against all attempts,\nfrom whatever quarter, to influence your decision in a matter of the\nutmost moment to your welfare, by any impressions other than those which\nmay result from the evidence of truth. You will, no doubt, at the same\ntime, have collected from the general scope of them, that they\nproceed from a source not unfriendly to the new Constitution. Yes,\nmy countrymen, I own to you that, after having given it an attentive\nconsideration, I am clearly of opinion it is your interest to adopt it.\nI am convinced that this is the safest course for your liberty, your\ndignity, and your happiness. I affect not reserves which I do not feel.\nI will not amuse you with an appearance of deliberation when I have\ndecided. I frankly acknowledge to you my convictions, and I will freely\nlay before you the reasons on which they are founded. The consciousness\nof good intentions disdains ambiguity. I shall not, however, multiply\nprofessions on this head. My motives must remain in the depository of\nmy own breast. My arguments will be open to all, and may be judged of by\nall. They shall at least be offered in a spirit which will not disgrace\nthe cause of truth.\n\nI propose, in a series of papers, to discuss the following interesting\nparticulars:\n\nTHE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY\nOF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF\nA GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE\nATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION\nTO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR\nOWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS\nADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT,\nTO LIBERTY, AND TO PROPERTY.\n\nIn the progress of this discussion I shall endeavor to give a\nsatisfactory answer to all the objections which shall have made their\nappearance, that may seem to have any claim to your attention.\n\nIt may perhaps be thought superfluous to offer arguments to prove the\nutility of the UNION, a point, no doubt, deeply engraved on the hearts\nof the great body of the people in every State, and one, which it may be\nimagined, has no adversaries. But the fact is, that we already hear\nit whispered in the private circles of those who oppose the new\nConstitution, that the thirteen States are of too great extent for\nany general system, and that we must of necessity resort to separate\nconfederacies of distinct portions of the whole.(1) This doctrine will,\nin all probability, be gradually propagated, till it has votaries enough\nto countenance an open avowal of it. For nothing can be more evident,\nto those who are able to take an enlarged view of the subject, than the\nalternative of an adoption of the new Constitution or a dismemberment\nof the Union. It will therefore be of use to begin by examining the\nadvantages of that Union, the certain evils, and the probable dangers,\nto which every State will be exposed from its dissolution. This shall\naccordingly constitute the subject of my next address.\n\nPUBLIUS\n\n1. The same idea, tracing the arguments to their consequences, is held\nout in several of the late publications against the new Constitution.\n\n\n\n\nFEDERALIST No. 2\n\nConcerning Dangers from Foreign Force and Influence\n\nFor the Independent Journal. Wednesday, October 31, 1787\n\nJAY\n\nTo the People of the State of New York:\n\nWHEN the people of America reflect that they are now called upon to\ndecide a question, which, in its consequences, must prove one of the\nmost important that ever engaged their attention, the propriety of their\ntaking a very comprehensive, as well as a very serious, view of it, will\nbe evident.\n\nNothing is more certain than the indispensable necessity of government,\nand it is equally undeniable, that whenever and however it is\ninstituted, the people must cede to it some of their natural rights\nin order to vest it with requisite powers. It is well worthy of\nconsideration therefore, whether it would conduce more to the interest\nof the people of America that they should, to all general purposes, be\none nation, under one federal government, or that they should divide\nthemselves into separate confederacies, and give to the head of each\nthe same kind of powers which they are advised to place in one national\ngovernment.\n\nIt has until lately been a received and uncontradicted opinion that the\nprosperity of the people of America depended on their continuing firmly\nunited, and the wishes, prayers, and efforts of our best and wisest\ncitizens have been constantly directed to that object. But politicians\nnow appear, who insist that this opinion is erroneous, and that instead\nof looking for safety and happiness in union, we ought to seek it in\na division of the States into distinct confederacies or sovereignties.\nHowever extraordinary this new doctrine may appear, it nevertheless\nhas its advocates; and certain characters who were much opposed to it\nformerly, are at present of the number. Whatever may be the arguments\nor inducements which have wrought this change in the sentiments and\ndeclarations of these gentlemen, it certainly would not be wise in the\npeople at large to adopt these new political tenets without being fully\nconvinced that they are founded in truth and sound policy.\n\nIt has often given me pleasure to observe that independent America\nwas not composed of detached and distant territories, but that one\nconnected, fertile, wide-spreading country was the portion of our western\nsons of liberty. Providence has in a particular manner blessed it with\na variety of soils and productions, and watered it with innumerable\nstreams, for the delight and accommodation of its inhabitants. A\nsuccession of navigable waters forms a kind of chain round its borders,\nas if to bind it together; while the most noble rivers in the world,\nrunning at convenient distances, present them with highways for the\neasy communication of friendly aids, and the mutual transportation and\nexchange of their various commodities.\n\nWith equal pleasure I have as often taken notice that Providence has\nbeen pleased to give this one connected country to one united people--a\npeople descended from the same ancestors, speaking the same language,\nprofessing the same religion, attached to the same principles of\ngovernment, very similar in their manners and customs, and who, by their\njoint counsels, arms, and efforts, fighting side by side throughout\na long and bloody war, have nobly established general liberty and\nindependence.\n\nThis country and this people seem to have been made for each other, and\nit appears as if it was the design of Providence, that an inheritance\nso proper and convenient for a band of brethren, united to each other\nby the strongest ties, should never be split into a number of unsocial,\njealous, and alien sovereignties.\n\nSimilar sentiments have hitherto prevailed among all orders and\ndenominations of men among us. To all general purposes we have uniformly\nbeen one people each individual citizen everywhere enjoying the same\nnational rights, privileges, and protection. As a nation we have made\npeace and war; as a nation we have vanquished our common enemies; as\na nation we have formed alliances, and made treaties, and entered into\nvarious compacts and conventions with foreign states.\n\nA strong sense of the value and blessings of union induced the people,\nat a very early period, to institute a federal government to preserve\nand perpetuate it. They formed it almost as soon as they had a political\nexistence; nay, at a time when their habitations were in flames, when\nmany of their citizens were bleeding, and when the progress of hostility\nand desolation left little room for those calm and mature inquiries\nand reflections which must ever precede the formation of a wise and\nwell-balanced government for a free people. It is not to be wondered\nat, that a government instituted in times so inauspicious, should on\nexperiment be found greatly deficient and inadequate to the purpose it\nwas intended to answer.\n\nThis intelligent people perceived and regretted these defects. Still\ncontinuing no less attached to union than enamored of liberty, they\nobserved the danger which immediately threatened the former and more\nremotely the latter; and being persuaded that ample security for both\ncould only be found in a national government more wisely framed, they\nas with one voice, convened the late convention at Philadelphia, to take\nthat important subject under consideration.\n\nThis convention composed of men who possessed the confidence of the\npeople, and many of whom had become highly distinguished by their\npatriotism, virtue and wisdom, in times which tried the minds and hearts\nof men, undertook the arduous task. In the mild season of peace, with\nminds unoccupied by other subjects, they passed many months in cool,\nuninterrupted, and daily consultation; and finally, without having\nbeen awed by power, or influenced by any passions except love for their\ncountry, they presented and recommended to the people the plan produced\nby their joint and very unanimous councils.\n\nAdmit, for so is the fact, that this plan is only RECOMMENDED, not\nimposed, yet let it be remembered that it is neither recommended to\nBLIND approbation, nor to BLIND reprobation; but to that sedate and\ncandid consideration which the magnitude and importance of the subject\ndemand, and which it certainly ought to receive. But this (as was\nremarked in the foregoing number of this paper) is more to be wished\nthan expected, that it may be so considered and examined. Experience on\na former occasion teaches us not to be too sanguine in such hopes. It\nis not yet forgotten that well-grounded apprehensions of imminent danger\ninduced the people of America to form the memorable Congress of 1774.\nThat body recommended certain measures to their constituents, and the\nevent proved their wisdom; yet it is fresh in our memories how soon the\npress began to teem with pamphlets and weekly papers against those very\nmeasures. Not only many of the officers of government, who obeyed the\ndictates of personal interest, but others, from a mistaken estimate of\nconsequences, or the undue influence of former attachments, or whose\nambition aimed at objects which did not correspond with the public good,\nwere indefatigable in their efforts to persuade the people to reject\nthe advice of that patriotic Congress. Many, indeed, were deceived\nand deluded, but the great majority of the people reasoned and decided\njudiciously; and happy they are in reflecting that they did so.\n\nThey considered that the Congress was composed of many wise and\nexperienced men. That, being convened from different parts of the\ncountry, they brought with them and communicated to each other a variety\nof useful information. That, in the course of the time they passed\ntogether in inquiring into and discussing the true interests of their\ncountry, they must have acquired very accurate knowledge on that\nhead. That they were individually interested in the public liberty and\nprosperity, and therefore that it was not less their inclination than\ntheir duty to recommend only such measures as, after the most mature\ndeliberation, they really thought prudent and advisable.\n\nThese and similar considerations then induced the people to rely greatly\non the judgment and integrity of the Congress; and they took their\nadvice, notwithstanding the various arts and endeavors used to deter\nthem from it. But if the people at large had reason to confide in the\nmen of that Congress, few of whom had been fully tried or generally\nknown, still greater reason have they now to respect the judgment and\nadvice of the convention, for it is well known that some of the most\ndistinguished members of that Congress, who have been since tried and\njustly approved for patriotism and abilities, and who have grown old in\nacquiring political information, were also members of this convention,\nand carried into it their accumulated knowledge and experience.\n\nIt is worthy of remark that not only the first, but every succeeding\nCongress, as well as the late convention, have invariably joined with\nthe people in thinking that the prosperity of America depended on its\nUnion. To preserve and perpetuate it was the great object of the people\nin forming that convention, and it is also the great object of the plan\nwhich the convention has advised them to adopt. With what propriety,\ntherefore, or for what good purposes, are attempts at this particular\nperiod made by some men to depreciate the importance of the Union? Or\nwhy is it suggested that three or four confederacies would be better\nthan one? I am persuaded in my own mind that the people have always\nthought right on this subject, and that their universal and uniform\nattachment to the cause of the Union rests on great and weighty reasons,\nwhich I shall endeavor to develop and explain in some ensuing papers.\nThey who promote the idea of substituting a number of distinct\nconfederacies in the room of the plan of the convention, seem clearly to\nforesee that the rejection of it would put the continuance of the\nUnion in the utmost jeopardy. That certainly would be the case, and I\nsincerely wish that it may be as clearly foreseen by every good citizen,\nthat whenever the dissolution of the Union arrives, America will have\nreason to exclaim, in the words of the poet: \"FAREWELL! A LONG FAREWELL\nTO ALL MY GREATNESS.\"\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 3\n\nThe Same Subject Continued (Concerning Dangers From Foreign Force and\nInfluence)\n\nFor the Independent Journal. Saturday, November 3, 1787\n\nJAY\n\nTo the People of the State of New York:\n\nIT IS not a new observation that the people of any country (if, like\nthe Americans, intelligent and wellinformed) seldom adopt and steadily\npersevere for many years in an erroneous opinion respecting their\ninterests. That consideration naturally tends to create great respect\nfor the high opinion which the people of America have so long and\nuniformly entertained of the importance of their continuing firmly\nunited under one federal government, vested with sufficient powers for\nall general and national purposes.\n\nThe more attentively I consider and investigate the reasons which appear\nto have given birth to this opinion, the more I become convinced that\nthey are cogent and conclusive.\n\nAmong the many objects to which a wise and free people find it necessary\nto direct their attention, that of providing for their SAFETY seems to\nbe the first. The SAFETY of the people doubtless has relation to a great\nvariety of circumstances and considerations, and consequently\naffords great latitude to those who wish to define it precisely and\ncomprehensively.\n\nAt present I mean only to consider it as it respects security for the\npreservation of peace and tranquillity, as well as against dangers from\nFOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE KIND arising\nfrom domestic causes. As the former of these comes first in order, it\nis proper it should be the first discussed. Let us therefore proceed to\nexamine whether the people are not right in their opinion that a cordial\nUnion, under an efficient national government, affords them the best\nsecurity that can be devised against HOSTILITIES from abroad.\n\nThe number of wars which have happened or will happen in the world will\nalways be found to be in proportion to the number and weight of the\ncauses, whether REAL or PRETENDED, which PROVOKE or INVITE them. If this\nremark be just, it becomes useful to inquire whether so many JUST causes\nof war are likely to be given by UNITED AMERICA as by DISUNITED America;\nfor if it should turn out that United America will probably give the\nfewest, then it will follow that in this respect the Union tends most to\npreserve the people in a state of peace with other nations.\n\nThe JUST causes of war, for the most part, arise either from violation\nof treaties or from direct violence. America has already formed treaties\nwith no less than six foreign nations, and all of them, except Prussia,\nare maritime, and therefore able to annoy and injure us. She has also\nextensive commerce with Portugal, Spain, and Britain, and, with respect\nto the two latter, has, in addition, the circumstance of neighborhood to\nattend to.\n\nIt is of high importance to the peace of America that she observe the\nlaws of nations towards all these powers, and to me it appears evident\nthat this will be more perfectly and punctually done by one national\ngovernment than it could be either by thirteen separate States or by\nthree or four distinct confederacies.\n\nBecause when once an efficient national government is established, the\nbest men in the country will not only consent to serve, but also will\ngenerally be appointed to manage it; for, although town or country,\nor other contracted influence, may place men in State assemblies,\nor senates, or courts of justice, or executive departments, yet more\ngeneral and extensive reputation for talents and other qualifications\nwill be necessary to recommend men to offices under the national\ngovernment,--especially as it will have the widest field for choice, and\nnever experience that want of proper persons which is not uncommon in\nsome of the States. Hence, it will result that the administration,\nthe political counsels, and the judicial decisions of the national\ngovernment will be more wise, systematical, and judicious than those of\nindividual States, and consequently more satisfactory with respect to\nother nations, as well as more SAFE with respect to us.\n\nBecause, under the national government, treaties and articles of\ntreaties, as well as the laws of nations, will always be expounded in\none sense and executed in the same manner,--whereas, adjudications on\nthe same points and questions, in thirteen States, or in three or four\nconfederacies, will not always accord or be consistent; and that, as\nwell from the variety of independent courts and judges appointed by\ndifferent and independent governments, as from the different local laws\nand interests which may affect and influence them. The wisdom of\nthe convention, in committing such questions to the jurisdiction and\njudgment of courts appointed by and responsible only to one national\ngovernment, cannot be too much commended.\n\nBecause the prospect of present loss or advantage may often tempt the\ngoverning party in one or two States to swerve from good faith and\njustice; but those temptations, not reaching the other States, and\nconsequently having little or no influence on the national government,\nthe temptation will be fruitless, and good faith and justice be\npreserved. The case of the treaty of peace with Britain adds great\nweight to this reasoning.\n\nBecause, even if the governing party in a State should be disposed to\nresist such temptations, yet as such temptations may, and commonly do,\nresult from circumstances peculiar to the State, and may affect a great\nnumber of the inhabitants, the governing party may not always be\nable, if willing, to prevent the injustice meditated, or to punish the\naggressors. But the national government, not being affected by those\nlocal circumstances, will neither be induced to commit the wrong\nthemselves, nor want power or inclination to prevent or punish its\ncommission by others.\n\nSo far, therefore, as either designed or accidental violations of\ntreaties and the laws of nations afford JUST causes of war, they are\nless to be apprehended under one general government than under several\nlesser ones, and in that respect the former most favors the SAFETY of\nthe people.\n\nAs to those just causes of war which proceed from direct and unlawful\nviolence, it appears equally clear to me that one good national\ngovernment affords vastly more security against dangers of that sort\nthan can be derived from any other quarter.\n\nBecause such violences are more frequently caused by the passions and\ninterests of a part than of the whole; of one or two States than of the\nUnion. Not a single Indian war has yet been occasioned by aggressions of\nthe present federal government, feeble as it is; but there are several\ninstances of Indian hostilities having been provoked by the improper\nconduct of individual States, who, either unable or unwilling to\nrestrain or punish offenses, have given occasion to the slaughter of\nmany innocent inhabitants.\n\nThe neighborhood of Spanish and British territories, bordering on some\nStates and not on others, naturally confines the causes of quarrel more\nimmediately to the borderers. The bordering States, if any, will be\nthose who, under the impulse of sudden irritation, and a quick sense of\napparent interest or injury, will be most likely, by direct violence,\nto excite war with these nations; and nothing can so effectually obviate\nthat danger as a national government, whose wisdom and prudence will\nnot be diminished by the passions which actuate the parties immediately\ninterested.\n\nBut not only fewer just causes of war will be given by the national\ngovernment, but it will also be more in their power to accommodate and\nsettle them amicably. They will be more temperate and cool, and in that\nrespect, as well as in others, will be more in capacity to act advisedly\nthan the offending State. The pride of states, as well as of men,\nnaturally disposes them to justify all their actions, and opposes their\nacknowledging, correcting, or repairing their errors and offenses. The\nnational government, in such cases, will not be affected by this pride,\nbut will proceed with moderation and candor to consider and decide on\nthe means most proper to extricate them from the difficulties which\nthreaten them.\n\nBesides, it is well known that acknowledgments, explanations, and\ncompensations are often accepted as satisfactory from a strong united\nnation, which would be rejected as unsatisfactory if offered by a State\nor confederacy of little consideration or power.\n\nIn the year 1685, the state of Genoa having offended Louis XIV.,\nendeavored to appease him. He demanded that they should send their Doge,\nor chief magistrate, accompanied by four of their senators, to FRANCE,\nto ask his pardon and receive his terms. They were obliged to submit to\nit for the sake of peace. Would he on any occasion either have demanded\nor have received the like humiliation from Spain, or Britain, or any\nother POWERFUL nation?\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 4\n\nThe Same Subject Continued (Concerning Dangers From Foreign Force and\nInfluence)\n\nFor the Independent Journal. Wednesday, November 7, 1787\n\nJAY\n\nTo the People of the State of New York:\n\nMY LAST paper assigned several reasons why the safety of the people\nwould be best secured by union against the danger it may be exposed to\nby JUST causes of war given to other nations; and those reasons show\nthat such causes would not only be more rarely given, but would also be\nmore easily accommodated, by a national government than either by the\nState governments or the proposed little confederacies.\n\nBut the safety of the people of America against dangers from FOREIGN\nforce depends not only on their forbearing to give JUST causes of war\nto other nations, but also on their placing and continuing themselves in\nsuch a situation as not to INVITE hostility or insult; for it need not\nbe observed that there are PRETENDED as well as just causes of war.\n\nIt is too true, however disgraceful it may be to human nature, that\nnations in general will make war whenever they have a prospect of\ngetting anything by it; nay, absolute monarchs will often make war when\ntheir nations are to get nothing by it, but for the purposes and objects\nmerely personal, such as thirst for military glory, revenge for personal\naffronts, ambition, or private compacts to aggrandize or support their\nparticular families or partisans. These and a variety of other motives,\nwhich affect only the mind of the sovereign, often lead him to engage in\nwars not sanctified by justice or the voice and interests of his people.\nBut, independent of these inducements to war, which are more prevalent\nin absolute monarchies, but which well deserve our attention, there are\nothers which affect nations as often as kings; and some of them will\non examination be found to grow out of our relative situation and\ncircumstances.\n\nWith France and with Britain we are rivals in the fisheries, and can\nsupply their markets cheaper than they can themselves, notwithstanding\nany efforts to prevent it by bounties on their own or duties on foreign\nfish.\n\nWith them and with most other European nations we are rivals in\nnavigation and the carrying trade; and we shall deceive ourselves if we\nsuppose that any of them will rejoice to see it flourish; for, as\nour carrying trade cannot increase without in some degree diminishing\ntheirs, it is more their interest, and will be more their policy, to\nrestrain than to promote it.\n\nIn the trade to China and India, we interfere with more than one nation,\ninasmuch as it enables us to partake in advantages which they had in a\nmanner monopolized, and as we thereby supply ourselves with commodities\nwhich we used to purchase from them.\n\nThe extension of our own commerce in our own vessels cannot give\npleasure to any nations who possess territories on or near this\ncontinent, because the cheapness and excellence of our productions,\nadded to the circumstance of vicinity, and the enterprise and address\nof our merchants and navigators, will give us a greater share in the\nadvantages which those territories afford, than consists with the wishes\nor policy of their respective sovereigns.\n\nSpain thinks it convenient to shut the Mississippi against us on the one\nside, and Britain excludes us from the Saint Lawrence on the other; nor\nwill either of them permit the other waters which are between them and\nus to become the means of mutual intercourse and traffic.\n\nFrom these and such like considerations, which might, if consistent\nwith prudence, be more amplified and detailed, it is easy to see that\njealousies and uneasinesses may gradually slide into the minds and\ncabinets of other nations, and that we are not to expect that they\nshould regard our advancement in union, in power and consequence by land\nand by sea, with an eye of indifference and composure.\n\nThe people of America are aware that inducements to war may arise out of\nthese circumstances, as well as from others not so obvious at present,\nand that whenever such inducements may find fit time and opportunity\nfor operation, pretenses to color and justify them will not be wanting.\nWisely, therefore, do they consider union and a good national government\nas necessary to put and keep them in SUCH A SITUATION as, instead of\nINVITING war, will tend to repress and discourage it. That situation\nconsists in the best possible state of defense, and necessarily depends\non the government, the arms, and the resources of the country.\n\nAs the safety of the whole is the interest of the whole, and cannot\nbe provided for without government, either one or more or many, let us\ninquire whether one good government is not, relative to the object in\nquestion, more competent than any other given number whatever.\n\nOne government can collect and avail itself of the talents and\nexperience of the ablest men, in whatever part of the Union they may be\nfound. It can move on uniform principles of policy. It can harmonize,\nassimilate, and protect the several parts and members, and extend the\nbenefit of its foresight and precautions to each. In the formation of\ntreaties, it will regard the interest of the whole, and the particular\ninterests of the parts as connected with that of the whole. It can apply\nthe resources and power of the whole to the defense of any particular\npart, and that more easily and expeditiously than State governments or\nseparate confederacies can possibly do, for want of concert and unity of\nsystem. It can place the militia under one plan of discipline, and, by\nputting their officers in a proper line of subordination to the Chief\nMagistrate, will, as it were, consolidate them into one corps, and\nthereby render them more efficient than if divided into thirteen or into\nthree or four distinct independent companies.\n\nWhat would the militia of Britain be if the English militia obeyed the\ngovernment of England, if the Scotch militia obeyed the government\nof Scotland, and if the Welsh militia obeyed the government of Wales?\nSuppose an invasion; would those three governments (if they agreed at\nall) be able, with all their respective forces, to operate against the\nenemy so effectually as the single government of Great Britain would?\n\nWe have heard much of the fleets of Britain, and the time may come, if\nwe are wise, when the fleets of America may engage attention. But if one\nnational government, had not so regulated the navigation of Britain\nas to make it a nursery for seamen--if one national government had not\ncalled forth all the national means and materials for forming fleets,\ntheir prowess and their thunder would never have been celebrated. Let\nEngland have its navigation and fleet--let Scotland have its navigation\nand fleet--let Wales have its navigation and fleet--let Ireland have\nits navigation and fleet--let those four of the constituent parts of the\nBritish empire be be under four independent governments, and it is\neasy to perceive how soon they would each dwindle into comparative\ninsignificance.\n\nApply these facts to our own case. Leave America divided into thirteen\nor, if you please, into three or four independent governments--what\narmies could they raise and pay--what fleets could they ever hope to\nhave? If one was attacked, would the others fly to its succor, and spend\ntheir blood and money in its defense? Would there be no danger of their\nbeing flattered into neutrality by its specious promises, or seduced by\na too great fondness for peace to decline hazarding their tranquillity\nand present safety for the sake of neighbors, of whom perhaps they have\nbeen jealous, and whose importance they are content to see diminished?\nAlthough such conduct would not be wise, it would, nevertheless, be\nnatural. The history of the states of Greece, and of other countries,\nabounds with such instances, and it is not improbable that what has so\noften happened would, under similar circumstances, happen again.\n\nBut admit that they might be willing to help the invaded State or\nconfederacy. How, and when, and in what proportion shall aids of men and\nmoney be afforded? Who shall command the allied armies, and from which\nof them shall he receive his orders? Who shall settle the terms of\npeace, and in case of disputes what umpire shall decide between them and\ncompel acquiescence? Various difficulties and inconveniences would be\ninseparable from such a situation; whereas one government, watching over\nthe general and common interests, and combining and directing the powers\nand resources of the whole, would be free from all these embarrassments,\nand conduce far more to the safety of the people.\n\nBut whatever may be our situation, whether firmly united under one\nnational government, or split into a number of confederacies, certain\nit is, that foreign nations will know and view it exactly as it is;\nand they will act toward us accordingly. If they see that our national\ngovernment is efficient and well administered, our trade prudently\nregulated, our militia properly organized and disciplined, our resources\nand finances discreetly managed, our credit re-established, our\npeople free, contented, and united, they will be much more disposed to\ncultivate our friendship than provoke our resentment. If, on the other\nhand, they find us either destitute of an effectual government (each\nState doing right or wrong, as to its rulers may seem convenient), or\nsplit into three or four independent and probably discordant republics\nor confederacies, one inclining to Britain, another to France, and a\nthird to Spain, and perhaps played off against each other by the three,\nwhat a poor, pitiful figure will America make in their eyes! How liable\nwould she become not only to their contempt but to their outrage, and\nhow soon would dear-bought experience proclaim that when a people or\nfamily so divide, it never fails to be against themselves.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 5\n\nThe Same Subject Continued (Concerning Dangers From Foreign Force and\nInfluence)\n\nFor the Independent Journal. Saturday, November 10, 1787\n\nJAY\n\nTo the People of the State of New York:\n\nQUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch\nParliament, makes some observations on the importance of the UNION then\nforming between England and Scotland, which merit our attention. I shall\npresent the public with one or two extracts from it: \"An entire and\nperfect union will be the solid foundation of lasting peace: It will\nsecure your religion, liberty, and property; remove the animosities\namongst yourselves, and the jealousies and differences betwixt our two\nkingdoms. It must increase your strength, riches, and trade; and by\nthis union the whole island, being joined in affection and free from all\napprehensions of different interest, will be ENABLED TO RESIST ALL ITS\nENEMIES.\" \"We most earnestly recommend to you calmness and unanimity in\nthis great and weighty affair, that the union may be brought to a happy\nconclusion, being the only EFFECTUAL way to secure our present and\nfuture happiness, and disappoint the designs of our and your enemies,\nwho will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO\nPREVENT OR DELAY THIS UNION.\"\n\nIt was remarked in the preceding paper, that weakness and divisions at\nhome would invite dangers from abroad; and that nothing would tend more\nto secure us from them than union, strength, and good government within\nourselves. This subject is copious and cannot easily be exhausted.\n\nThe history of Great Britain is the one with which we are in general the\nbest acquainted, and it gives us many useful lessons. We may profit by\ntheir experience without paying the price which it cost them. Although\nit seems obvious to common sense that the people of such an island\nshould be but one nation, yet we find that they were for ages divided\ninto three, and that those three were almost constantly embroiled in\nquarrels and wars with one another. Notwithstanding their true interest\nwith respect to the continental nations was really the same, yet by the\narts and policy and practices of those nations, their mutual jealousies\nwere perpetually kept inflamed, and for a long series of years they\nwere far more inconvenient and troublesome than they were useful and\nassisting to each other.\n\nShould the people of America divide themselves into three or four\nnations, would not the same thing happen? Would not similar jealousies\narise, and be in like manner cherished? Instead of their being \"joined\nin affection\" and free from all apprehension of different \"interests,\"\nenvy and jealousy would soon extinguish confidence and affection,\nand the partial interests of each confederacy, instead of the general\ninterests of all America, would be the only objects of their policy and\npursuits. Hence, like most other BORDERING nations, they would always\nbe either involved in disputes and war, or live in the constant\napprehension of them.\n\nThe most sanguine advocates for three or four confederacies cannot\nreasonably suppose that they would long remain exactly on an equal\nfooting in point of strength, even if it was possible to form them so at\nfirst; but, admitting that to be practicable, yet what human contrivance\ncan secure the continuance of such equality? Independent of those local\ncircumstances which tend to beget and increase power in one part and to\nimpede its progress in another, we must advert to the effects of that\nsuperior policy and good management which would probably distinguish the\ngovernment of one above the rest, and by which their relative equality\nin strength and consideration would be destroyed. For it cannot be\npresumed that the same degree of sound policy, prudence, and foresight\nwould uniformly be observed by each of these confederacies for a long\nsuccession of years.\n\nWhenever, and from whatever causes, it might happen, and happen it\nwould, that any one of these nations or confederacies should rise on the\nscale of political importance much above the degree of her neighbors,\nthat moment would those neighbors behold her with envy and with fear.\nBoth those passions would lead them to countenance, if not to promote,\nwhatever might promise to diminish her importance; and would also\nrestrain them from measures calculated to advance or even to secure her\nprosperity. Much time would not be necessary to enable her to discern\nthese unfriendly dispositions. She would soon begin, not only to lose\nconfidence in her neighbors, but also to feel a disposition equally\nunfavorable to them. Distrust naturally creates distrust, and by nothing\nis good-will and kind conduct more speedily changed than by invidious\njealousies and uncandid imputations, whether expressed or implied.\n\nThe North is generally the region of strength, and many local\ncircumstances render it probable that the most Northern of the proposed\nconfederacies would, at a period not very distant, be unquestionably\nmore formidable than any of the others. No sooner would this become\nevident than the NORTHERN HIVE would excite the same ideas and\nsensations in the more southern parts of America which it formerly\ndid in the southern parts of Europe. Nor does it appear to be a rash\nconjecture that its young swarms might often be tempted to gather honey\nin the more blooming fields and milder air of their luxurious and more\ndelicate neighbors.\n\nThey who well consider the history of similar divisions and\nconfederacies will find abundant reason to apprehend that those in\ncontemplation would in no other sense be neighbors than as they would\nbe borderers; that they would neither love nor trust one another, but on\nthe contrary would be a prey to discord, jealousy, and mutual injuries;\nin short, that they would place us exactly in the situations in which\nsome nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH\nOTHER.\n\nFrom these considerations it appears that those gentlemen are greatly\nmistaken who suppose that alliances offensive and defensive might be\nformed between these confederacies, and would produce that combination\nand union of wills of arms and of resources, which would be necessary\nto put and keep them in a formidable state of defense against foreign\nenemies.\n\nWhen did the independent states, into which Britain and Spain were\nformerly divided, combine in such alliance, or unite their forces\nagainst a foreign enemy? The proposed confederacies will be DISTINCT\nNATIONS. Each of them would have its commerce with foreigners to\nregulate by distinct treaties; and as their productions and commodities\nare different and proper for different markets, so would those treaties\nbe essentially different. Different commercial concerns must create\ndifferent interests, and of course different degrees of political\nattachment to and connection with different foreign nations. Hence it\nmight and probably would happen that the foreign nation with whom the\nSOUTHERN confederacy might be at war would be the one with whom the\nNORTHERN confederacy would be the most desirous of preserving peace and\nfriendship. An alliance so contrary to their immediate interest would\nnot therefore be easy to form, nor, if formed, would it be observed and\nfulfilled with perfect good faith.\n\nNay, it is far more probable that in America, as in Europe, neighboring\nnations, acting under the impulse of opposite interests and unfriendly\npassions, would frequently be found taking different sides. Considering\nour distance from Europe, it would be more natural for these\nconfederacies to apprehend danger from one another than from distant\nnations, and therefore that each of them should be more desirous to\nguard against the others by the aid of foreign alliances, than to guard\nagainst foreign dangers by alliances between themselves. And here let us\nnot forget how much more easy it is to receive foreign fleets into our\nports, and foreign armies into our country, than it is to persuade or\ncompel them to depart. How many conquests did the Romans and others make\nin the characters of allies, and what innovations did they under\nthe same character introduce into the governments of those whom they\npretended to protect.\n\nLet candid men judge, then, whether the division of America into any\ngiven number of independent sovereignties would tend to secure us\nagainst the hostilities and improper interference of foreign nations.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 6\n\nConcerning Dangers from Dissensions Between the States\n\nFor the Independent Journal. Wednesday, November 14, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE three last numbers of this paper have been dedicated to an\nenumeration of the dangers to which we should be exposed, in a state of\ndisunion, from the arms and arts of foreign nations. I shall now proceed\nto delineate dangers of a different and, perhaps, still more alarming\nkind--those which will in all probability flow from dissensions between\nthe States themselves, and from domestic factions and convulsions.\nThese have been already in some instances slightly anticipated; but they\ndeserve a more particular and more full investigation.\n\nA man must be far gone in Utopian speculations who can seriously doubt\nthat, if these States should either be wholly disunited, or only united\nin partial confederacies, the subdivisions into which they might be\nthrown would have frequent and violent contests with each other. To\npresume a want of motives for such contests as an argument against their\nexistence, would be to forget that men are ambitious, vindictive, and\nrapacious. To look for a continuation of harmony between a number of\nindependent, unconnected sovereignties in the same neighborhood, would\nbe to disregard the uniform course of human events, and to set at\ndefiance the accumulated experience of ages.\n\nThe causes of hostility among nations are innumerable. There are some\nwhich have a general and almost constant operation upon the collective\nbodies of society. Of this description are the love of power or the\ndesire of pre-eminence and dominion--the jealousy of power, or the\ndesire of equality and safety. There are others which have a more\ncircumscribed though an equally operative influence within their\nspheres. Such are the rivalships and competitions of commerce between\ncommercial nations. And there are others, not less numerous than either\nof the former, which take their origin entirely in private passions;\nin the attachments, enmities, interests, hopes, and fears of leading\nindividuals in the communities of which they are members. Men of this\nclass, whether the favorites of a king or of a people, have in too many\ninstances abused the confidence they possessed; and assuming the pretext\nof some public motive, have not scrupled to sacrifice the national\ntranquillity to personal advantage or personal gratification.\n\nThe celebrated Pericles, in compliance with the resentment of a\nprostitute,(1) at the expense of much of the blood and treasure of\nhis countrymen, attacked, vanquished, and destroyed the city of\nthe SAMMIANS. The same man, stimulated by private pique against the\nMEGARENSIANS,(2) another nation of Greece, or to avoid a prosecution\nwith which he was threatened as an accomplice of a supposed theft of\nthe statuary Phidias,(3) or to get rid of the accusations prepared to\nbe brought against him for dissipating the funds of the state in the\npurchase of popularity,(4) or from a combination of all these causes,\nwas the primitive author of that famous and fatal war, distinguished in\nthe Grecian annals by the name of the PELOPONNESIAN war; which, after\nvarious vicissitudes, intermissions, and renewals, terminated in the\nruin of the Athenian commonwealth.\n\nThe ambitious cardinal, who was prime minister to Henry VIII.,\npermitting his vanity to aspire to the triple crown,(5) entertained\nhopes of succeeding in the acquisition of that splendid prize by the\ninfluence of the Emperor Charles V. To secure the favor and interest of\nthis enterprising and powerful monarch, he precipitated England into a\nwar with France, contrary to the plainest dictates of policy, and at the\nhazard of the safety and independence, as well of the kingdom over which\nhe presided by his counsels, as of Europe in general. For if there\never was a sovereign who bid fair to realize the project of universal\nmonarchy, it was the Emperor Charles V., of whose intrigues Wolsey was\nat once the instrument and the dupe.\n\nThe influence which the bigotry of one female,(6) the petulance of\nanother,(7) and the cabals of a third,(8) had in the contemporary\npolicy, ferments, and pacifications, of a considerable part of Europe,\nare topics that have been too often descanted upon not to be generally\nknown.\n\nTo multiply examples of the agency of personal considerations in\nthe production of great national events, either foreign or domestic,\naccording to their direction, would be an unnecessary waste of time.\nThose who have but a superficial acquaintance with the sources from\nwhich they are to be drawn, will themselves recollect a variety of\ninstances; and those who have a tolerable knowledge of human nature will\nnot stand in need of such lights to form their opinion either of the\nreality or extent of that agency. Perhaps, however, a reference, tending\nto illustrate the general principle, may with propriety be made to a\ncase which has lately happened among ourselves. If Shays had not been a\nDESPERATE DEBTOR, it is much to be doubted whether Massachusetts would\nhave been plunged into a civil war.\n\nBut notwithstanding the concurring testimony of experience, in this\nparticular, there are still to be found visionary or designing men,\nwho stand ready to advocate the paradox of perpetual peace between the\nStates, though dismembered and alienated from each other. The genius of\nrepublics (say they) is pacific; the spirit of commerce has a tendency\nto soften the manners of men, and to extinguish those inflammable humors\nwhich have so often kindled into wars. Commercial republics, like ours,\nwill never be disposed to waste themselves in ruinous contentions with\neach other. They will be governed by mutual interest, and will cultivate\na spirit of mutual amity and concord.\n\nIs it not (we may ask these projectors in politics) the true interest of\nall nations to cultivate the same benevolent and philosophic spirit? If\nthis be their true interest, have they in fact pursued it? Has it not,\non the contrary, invariably been found that momentary passions, and\nimmediate interest, have a more active and imperious control over human\nconduct than general or remote considerations of policy, utility or\njustice? Have republics in practice been less addicted to war than\nmonarchies? Are not the former administered by MEN as well as the\nlatter? Are there not aversions, predilections, rivalships, and desires\nof unjust acquisitions, that affect nations as well as kings? Are\nnot popular assemblies frequently subject to the impulses of rage,\nresentment, jealousy, avarice, and of other irregular and violent\npropensities? Is it not well known that their determinations are often\ngoverned by a few individuals in whom they place confidence, and are,\nof course, liable to be tinctured by the passions and views of those\nindividuals? Has commerce hitherto done anything more than change\nthe objects of war? Is not the love of wealth as domineering and\nenterprising a passion as that of power or glory? Have there not been\nas many wars founded upon commercial motives since that has become the\nprevailing system of nations, as were before occasioned by the cupidity\nof territory or dominion? Has not the spirit of commerce, in many\ninstances, administered new incentives to the appetite, both for the\none and for the other? Let experience, the least fallible guide of human\nopinions, be appealed to for an answer to these inquiries.\n\nSparta, Athens, Rome, and Carthage were all republics; two of them,\nAthens and Carthage, of the commercial kind. Yet were they as often\nengaged in wars, offensive and defensive, as the neighboring monarchies\nof the same times. Sparta was little better than a wellregulated camp;\nand Rome was never sated of carnage and conquest.\n\nCarthage, though a commercial republic, was the aggressor in the very\nwar that ended in her destruction. Hannibal had carried her arms into\nthe heart of Italy and to the gates of Rome, before Scipio, in turn,\ngave him an overthrow in the territories of Carthage, and made a\nconquest of the commonwealth.\n\nVenice, in later times, figured more than once in wars of ambition,\ntill, becoming an object to the other Italian states, Pope Julius II.\nfound means to accomplish that formidable league,(9) which gave a deadly\nblow to the power and pride of this haughty republic.\n\nThe provinces of Holland, till they were overwhelmed in debts and taxes,\ntook a leading and conspicuous part in the wars of Europe. They had\nfurious contests with England for the dominion of the sea, and were\namong the most persevering and most implacable of the opponents of Louis\nXIV.\n\nIn the government of Britain the representatives of the people compose\none branch of the national legislature. Commerce has been for ages the\npredominant pursuit of that country. Few nations, nevertheless, have\nbeen more frequently engaged in war; and the wars in which that kingdom\nhas been engaged have, in numerous instances, proceeded from the people.\n\nThere have been, if I may so express it, almost as many popular as\nroyal wars. The cries of the nation and the importunities of their\nrepresentatives have, upon various occasions, dragged their monarchs\ninto war, or continued them in it, contrary to their inclinations, and\nsometimes contrary to the real interests of the State. In that memorable\nstruggle for superiority between the rival houses of AUSTRIA and\nBOURBON, which so long kept Europe in a flame, it is well known that the\nantipathies of the English against the French, seconding the ambition,\nor rather the avarice, of a favorite leader,(10) protracted the war\nbeyond the limits marked out by sound policy, and for a considerable\ntime in opposition to the views of the court.\n\nThe wars of these two last-mentioned nations have in a great measure\ngrown out of commercial considerations,--the desire of supplanting and\nthe fear of being supplanted, either in particular branches of traffic\nor in the general advantages of trade and navigation, and sometimes even\nthe more culpable desire of sharing in the commerce of other nations\nwithout their consent.\n\nThe last war but between Britain and Spain sprang from the attempts of\nthe British merchants to prosecute an illicit trade with the Spanish\nmain. These unjustifiable practices on their part produced severity on\nthe part of the Spaniards toward the subjects of Great Britain which\nwere not more justifiable, because they exceeded the bounds of a just\nretaliation and were chargeable with inhumanity and cruelty. Many of\nthe English who were taken on the Spanish coast were sent to dig in the\nmines of Potosi; and by the usual progress of a spirit of resentment,\nthe innocent were, after a while, confounded with the guilty in\nindiscriminate punishment. The complaints of the merchants kindled a\nviolent flame throughout the nation, which soon after broke out in the\nHouse of Commons, and was communicated from that body to the ministry.\nLetters of reprisal were granted, and a war ensued, which in its\nconsequences overthrew all the alliances that but twenty years before\nhad been formed with sanguine expectations of the most beneficial\nfruits.\n\nFrom this summary of what has taken place in other countries, whose\nsituations have borne the nearest resemblance to our own, what reason\ncan we have to confide in those reveries which would seduce us into an\nexpectation of peace and cordiality between the members of the present\nconfederacy, in a state of separation? Have we not already seen enough\nof the fallacy and extravagance of those idle theories which have amused\nus with promises of an exemption from the imperfections, weaknesses and\nevils incident to society in every shape? Is it not time to awake from\nthe deceitful dream of a golden age, and to adopt as a practical maxim\nfor the direction of our political conduct that we, as well as the\nother inhabitants of the globe, are yet remote from the happy empire of\nperfect wisdom and perfect virtue?\n\nLet the point of extreme depression to which our national dignity and\ncredit have sunk, let the inconveniences felt everywhere from a lax and\nill administration of government, let the revolt of a part of the State\nof North Carolina, the late menacing disturbances in Pennsylvania, and\nthe actual insurrections and rebellions in Massachusetts, declare--!\n\nSo far is the general sense of mankind from corresponding with the\ntenets of those who endeavor to lull asleep our apprehensions of discord\nand hostility between the States, in the event of disunion, that it has\nfrom long observation of the progress of society become a sort of axiom\nin politics, that vicinity or nearness of situation, constitutes nations\nnatural enemies. An intelligent writer expresses himself on this subject\nto this effect: \"NEIGHBORING NATIONS (says he) are naturally enemies\nof each other unless their common weakness forces them to league in a\nCONFEDERATE REPUBLIC, and their constitution prevents the differences\nthat neighborhood occasions, extinguishing that secret jealousy which\ndisposes all states to aggrandize themselves at the expense of their\nneighbors.\"(11) This passage, at the same time, points out the EVIL and\nsuggests the REMEDY.\n\nPUBLIUS\n\n1. Aspasia, vide \"Plutarch's Life of Pericles.\"\n\n2. Ibid.\n\n3. Ibid.\n\n4. Ibid. Phidias was supposed to have stolen some public gold, with the\nconnivance of Pericles, for the embellishment of the statue of Minerva.\n\n5. Worn by the popes.\n\n6. Madame de Maintenon.\n\n7. Duchess of Marlborough.\n\n8. Madame de Pompadour.\n\n9. The League of Cambray, comprehending the Emperor, the King of France,\nthe King of Aragon, and most of the Italian princes and states.\n\n10. The Duke of Marlborough.\n\n11. Vide \"Principes des Negociations\" par l'Abbé de Mably.\n\n\n\n\nFEDERALIST No. 7\n\nThe Same Subject Continued (Concerning Dangers from Dissensions Between\nthe States)\n\nFor the Independent Journal. Thursday, November 15, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIT IS sometimes asked, with an air of seeming triumph, what inducements\ncould the States have, if disunited, to make war upon each other? It\nwould be a full answer to this question to say--precisely the same\ninducements which have, at different times, deluged in blood all the\nnations in the world. But, unfortunately for us, the question admits\nof a more particular answer. There are causes of differences within\nour immediate contemplation, of the tendency of which, even under the\nrestraints of a federal constitution, we have had sufficient experience\nto enable us to form a judgment of what might be expected if those\nrestraints were removed.\n\nTerritorial disputes have at all times been found one of the most\nfertile sources of hostility among nations. Perhaps the greatest\nproportion of wars that have desolated the earth have sprung from this\norigin. This cause would exist among us in full force. We have a vast\ntract of unsettled territory within the boundaries of the United States.\nThere still are discordant and undecided claims between several of them,\nand the dissolution of the Union would lay a foundation for similar\nclaims between them all. It is well known that they have heretofore had\nserious and animated discussion concerning the rights to the lands which\nwere ungranted at the time of the Revolution, and which usually went\nunder the name of crown lands. The States within the limits of whose\ncolonial governments they were comprised have claimed them as their\nproperty, the others have contended that the rights of the crown in this\narticle devolved upon the Union; especially as to all that part of the\nWestern territory which, either by actual possession, or through the\nsubmission of the Indian proprietors, was subjected to the jurisdiction\nof the king of Great Britain, till it was relinquished in the treaty of\npeace. This, it has been said, was at all events an acquisition to the\nConfederacy by compact with a foreign power. It has been the prudent\npolicy of Congress to appease this controversy, by prevailing upon the\nStates to make cessions to the United States for the benefit of the\nwhole. This has been so far accomplished as, under a continuation of the\nUnion, to afford a decided prospect of an amicable termination of the\ndispute. A dismemberment of the Confederacy, however, would revive this\ndispute, and would create others on the same subject. At present, a\nlarge part of the vacant Western territory is, by cession at least, if\nnot by any anterior right, the common property of the Union. If that\nwere at an end, the States which made the cession, on a principle\nof federal compromise, would be apt when the motive of the grant had\nceased, to reclaim the lands as a reversion. The other States would no\ndoubt insist on a proportion, by right of representation. Their argument\nwould be, that a grant, once made, could not be revoked; and that the\njustice of participating in territory acquired or secured by the joint\nefforts of the Confederacy, remained undiminished. If, contrary to\nprobability, it should be admitted by all the States, that each had a\nright to a share of this common stock, there would still be a difficulty\nto be surmounted, as to a proper rule of apportionment. Different\nprinciples would be set up by different States for this purpose; and as\nthey would affect the opposite interests of the parties, they might not\neasily be susceptible of a pacific adjustment.\n\nIn the wide field of Western territory, therefore, we perceive an ample\ntheatre for hostile pretensions, without any umpire or common judge to\ninterpose between the contending parties. To reason from the past to\nthe future, we shall have good ground to apprehend, that the sword\nwould sometimes be appealed to as the arbiter of their differences.\nThe circumstances of the dispute between Connecticut and Pennsylvania,\nrespecting the land at Wyoming, admonish us not to be sanguine in\nexpecting an easy accommodation of such differences. The articles of\nconfederation obliged the parties to submit the matter to the decision\nof a federal court. The submission was made, and the court decided\nin favor of Pennsylvania. But Connecticut gave strong indications\nof dissatisfaction with that determination; nor did she appear to be\nentirely resigned to it, till, by negotiation and management, something\nlike an equivalent was found for the loss she supposed herself to have\nsustained. Nothing here said is intended to convey the slightest censure\non the conduct of that State. She no doubt sincerely believed herself\nto have been injured by the decision; and States, like individuals,\nacquiesce with great reluctance in determinations to their disadvantage.\n\nThose who had an opportunity of seeing the inside of the transactions\nwhich attended the progress of the controversy between this State and\nthe district of Vermont, can vouch the opposition we experienced, as\nwell from States not interested as from those which were interested\nin the claim; and can attest the danger to which the peace of the\nConfederacy might have been exposed, had this State attempted to assert\nits rights by force. Two motives preponderated in that opposition: one,\na jealousy entertained of our future power; and the other, the interest\nof certain individuals of influence in the neighboring States, who had\nobtained grants of lands under the actual government of that district.\nEven the States which brought forward claims, in contradiction to ours,\nseemed more solicitous to dismember this State, than to establish\ntheir own pretensions. These were New Hampshire, Massachusetts, and\nConnecticut. New Jersey and Rhode Island, upon all occasions, discovered\na warm zeal for the independence of Vermont; and Maryland, till alarmed\nby the appearance of a connection between Canada and that State, entered\ndeeply into the same views. These being small States, saw with an\nunfriendly eye the perspective of our growing greatness. In a review of\nthese transactions we may trace some of the causes which would be\nlikely to embroil the States with each other, if it should be their\nunpropitious destiny to become disunited.\n\nThe competitions of commerce would be another fruitful source of\ncontention. The States less favorably circumstanced would be desirous\nof escaping from the disadvantages of local situation, and of sharing\nin the advantages of their more fortunate neighbors. Each State,\nor separate confederacy, would pursue a system of commercial policy\npeculiar to itself. This would occasion distinctions, preferences, and\nexclusions, which would beget discontent. The habits of intercourse, on\nthe basis of equal privileges, to which we have been accustomed since\nthe earliest settlement of the country, would give a keener edge to\nthose causes of discontent than they would naturally have independent\nof this circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE\nTHINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT\nSOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of enterprise,\nwhich characterizes the commercial part of America, has left no occasion\nof displaying itself unimproved. It is not at all probable that this\nunbridled spirit would pay much respect to those regulations of trade by\nwhich particular States might endeavor to secure exclusive benefits to\ntheir own citizens. The infractions of these regulations, on one side,\nthe efforts to prevent and repel them, on the other, would naturally\nlead to outrages, and these to reprisals and wars.\n\nThe opportunities which some States would have of rendering others\ntributary to them by commercial regulations would be impatiently\nsubmitted to by the tributary States. The relative situation of New\nYork, Connecticut, and New Jersey would afford an example of this\nkind. New York, from the necessities of revenue, must lay duties on\nher importations. A great part of these duties must be paid by the\ninhabitants of the two other States in the capacity of consumers of what\nwe import. New York would neither be willing nor able to forego this\nadvantage. Her citizens would not consent that a duty paid by them\nshould be remitted in favor of the citizens of her neighbors; nor would\nit be practicable, if there were not this impediment in the way, to\ndistinguish the customers in our own markets. Would Connecticut and New\nJersey long submit to be taxed by New York for her exclusive benefit?\nShould we be long permitted to remain in the quiet and undisturbed\nenjoyment of a metropolis, from the possession of which we derived\nan advantage so odious to our neighbors, and, in their opinion, so\noppressive? Should we be able to preserve it against the incumbent\nweight of Connecticut on the one side, and the co-operating pressure of\nNew Jersey on the other? These are questions that temerity alone will\nanswer in the affirmative.\n\nThe public debt of the Union would be a further cause of collision\nbetween the separate States or confederacies. The apportionment, in the\nfirst instance, and the progressive extinguishment afterward, would be\nalike productive of ill-humor and animosity. How would it be possible\nto agree upon a rule of apportionment satisfactory to all? There is\nscarcely any that can be proposed which is entirely free from real\nobjections. These, as usual, would be exaggerated by the adverse\ninterest of the parties. There are even dissimilar views among the\nStates as to the general principle of discharging the public debt. Some\nof them, either less impressed with the importance of national credit,\nor because their citizens have little, if any, immediate interest in the\nquestion, feel an indifference, if not a repugnance, to the payment of\nthe domestic debt at any rate. These would be inclined to magnify the\ndifficulties of a distribution. Others of them, a numerous body of whose\ncitizens are creditors to the public beyond proportion of the State\nin the total amount of the national debt, would be strenuous for some\nequitable and effective provision. The procrastinations of the former\nwould excite the resentments of the latter. The settlement of a rule\nwould, in the meantime, be postponed by real differences of opinion and\naffected delays. The citizens of the States interested would clamour;\nforeign powers would urge for the satisfaction of their just demands,\nand the peace of the States would be hazarded to the double contingency\nof external invasion and internal contention.\n\nSuppose the difficulties of agreeing upon a rule surmounted, and the\napportionment made. Still there is great room to suppose that the rule\nagreed upon would, upon experiment, be found to bear harder upon\nsome States than upon others. Those which were sufferers by it would\nnaturally seek for a mitigation of the burden. The others would as\nnaturally be disinclined to a revision, which was likely to end in an\nincrease of their own incumbrances. Their refusal would be too plausible\na pretext to the complaining States to withhold their contributions, not\nto be embraced with avidity; and the non-compliance of these States\nwith their engagements would be a ground of bitter discussion and\naltercation. If even the rule adopted should in practice justify the\nequality of its principle, still delinquencies in payments on the part\nof some of the States would result from a diversity of other causes--the\nreal deficiency of resources; the mismanagement of their finances;\naccidental disorders in the management of the government; and, in\naddition to the rest, the reluctance with which men commonly part with\nmoney for purposes that have outlived the exigencies which produced\nthem, and interfere with the supply of immediate wants. Delinquencies,\nfrom whatever causes, would be productive of complaints, recriminations,\nand quarrels. There is, perhaps, nothing more likely to disturb the\ntranquillity of nations than their being bound to mutual contributions\nfor any common object that does not yield an equal and coincident\nbenefit. For it is an observation, as true as it is trite, that there is\nnothing men differ so readily about as the payment of money.\n\nLaws in violation of private contracts, as they amount to aggressions\non the rights of those States whose citizens are injured by them, may\nbe considered as another probable source of hostility. We are not\nauthorized to expect that a more liberal or more equitable spirit would\npreside over the legislations of the individual States hereafter, if\nunrestrained by any additional checks, than we have heretofore seen in\ntoo many instances disgracing their several codes. We have observed the\ndisposition to retaliation excited in Connecticut in consequence of\nthe enormities perpetrated by the Legislature of Rhode Island; and we\nreasonably infer that, in similar cases, under other circumstances, a\nwar, not of PARCHMENT, but of the sword, would chastise such atrocious\nbreaches of moral obligation and social justice.\n\nThe probability of incompatible alliances between the different States\nor confederacies and different foreign nations, and the effects of this\nsituation upon the peace of the whole, have been sufficiently unfolded\nin some preceding papers. From the view they have exhibited of this part\nof the subject, this conclusion is to be drawn, that America, if\nnot connected at all, or only by the feeble tie of a simple league,\noffensive and defensive, would, by the operation of such jarring\nalliances, be gradually entangled in all the pernicious labyrinths of\nEuropean politics and wars; and by the destructive contentions of the\nparts into which she was divided, would be likely to become a prey to\nthe artifices and machinations of powers equally the enemies of them\nall. Divide et impera(1) must be the motto of every nation that either\nhates or fears us.(2)\n\nPUBLIUS\n\n1. Divide and command.\n\n2. In order that the whole subject of these papers may as soon as\npossible be laid before the public, it is proposed to publish them four\ntimes a week--on Tuesday in the New York Packet and on Thursday in the\nDaily Advertiser.\n\n\n\n\nFEDERALIST No. 8\n\nThe Consequences of Hostilities Between the States\n\nFrom the New York Packet. Tuesday, November 20, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nASSUMING it therefore as an established truth that the several States,\nin case of disunion, or such combinations of them as might happen to be\nformed out of the wreck of the general Confederacy, would be subject to\nthose vicissitudes of peace and war, of friendship and enmity, with\neach other, which have fallen to the lot of all neighboring nations not\nunited under one government, let us enter into a concise detail of some\nof the consequences that would attend such a situation.\n\nWar between the States, in the first period of their separate existence,\nwould be accompanied with much greater distresses than it commonly is\nin those countries where regular military establishments have long\nobtained. The disciplined armies always kept on foot on the continent\nof Europe, though they bear a malignant aspect to liberty and economy,\nhave, notwithstanding, been productive of the signal advantage of\nrendering sudden conquests impracticable, and of preventing that\nrapid desolation which used to mark the progress of war prior to their\nintroduction. The art of fortification has contributed to the same ends.\nThe nations of Europe are encircled with chains of fortified places,\nwhich mutually obstruct invasion. Campaigns are wasted in reducing two\nor three frontier garrisons, to gain admittance into an enemy's country.\nSimilar impediments occur at every step, to exhaust the strength and\ndelay the progress of an invader. Formerly, an invading army would\npenetrate into the heart of a neighboring country almost as soon as\nintelligence of its approach could be received; but now a comparatively\nsmall force of disciplined troops, acting on the defensive, with the aid\nof posts, is able to impede, and finally to frustrate, the enterprises\nof one much more considerable. The history of war, in that quarter\nof the globe, is no longer a history of nations subdued and empires\noverturned, but of towns taken and retaken; of battles that decide\nnothing; of retreats more beneficial than victories; of much effort and\nlittle acquisition.\n\nIn this country the scene would be altogether reversed. The jealousy\nof military establishments would postpone them as long as possible.\nThe want of fortifications, leaving the frontiers of one state open\nto another, would facilitate inroads. The populous States would, with\nlittle difficulty, overrun their less populous neighbors. Conquests\nwould be as easy to be made as difficult to be retained. War, therefore,\nwould be desultory and predatory. PLUNDER and devastation ever march in\nthe train of irregulars. The calamities of individuals would make the\nprincipal figure in the events which would characterize our military\nexploits.\n\nThis picture is not too highly wrought; though, I confess, it would not\nlong remain a just one. Safety from external danger is the most powerful\ndirector of national conduct. Even the ardent love of liberty will,\nafter a time, give way to its dictates. The violent destruction of life\nand property incident to war, the continual effort and alarm attendant\non a state of continual danger, will compel nations the most attached to\nliberty to resort for repose and security to institutions which have a\ntendency to destroy their civil and political rights. To be more safe,\nthey at length become willing to run the risk of being less free.\n\nThe institutions chiefly alluded to are STANDING ARMIES and the\ncorrespondent appendages of military establishments. Standing armies,\nit is said, are not provided against in the new Constitution; and it\nis therefore inferred that they may exist under it.(1) Their existence,\nhowever, from the very terms of the proposition, is, at most,\nproblematical and uncertain. But standing armies, it may be replied,\nmust inevitably result from a dissolution of the Confederacy. Frequent\nwar and constant apprehension, which require a state of as constant\npreparation, will infallibly produce them. The weaker States or\nconfederacies would first have recourse to them, to put themselves upon\nan equality with their more potent neighbors. They would endeavor to\nsupply the inferiority of population and resources by a more regular\nand effective system of defense, by disciplined troops, and by\nfortifications. They would, at the same time, be necessitated to\nstrengthen the executive arm of government, in doing which their\nconstitutions would acquire a progressive direction toward monarchy. It\nis of the nature of war to increase the executive at the expense of the\nlegislative authority.\n\nThe expedients which have been mentioned would soon give the States or\nconfederacies that made use of them a superiority over their neighbors.\nSmall states, or states of less natural strength, under vigorous\ngovernments, and with the assistance of disciplined armies, have often\ntriumphed over large states, or states of greater natural strength,\nwhich have been destitute of these advantages. Neither the pride nor the\nsafety of the more important States or confederacies would permit them\nlong to submit to this mortifying and adventitious superiority. They\nwould quickly resort to means similar to those by which it had been\neffected, to reinstate themselves in their lost pre-eminence. Thus, we\nshould, in a little time, see established in every part of this country\nthe same engines of despotism which have been the scourge of the Old\nWorld. This, at least, would be the natural course of things; and our\nreasonings will be the more likely to be just, in proportion as they are\naccommodated to this standard.\n\nThese are not vague inferences drawn from supposed or speculative\ndefects in a Constitution, the whole power of which is lodged in the\nhands of a people, or their representatives and delegates, but they\nare solid conclusions, drawn from the natural and necessary progress of\nhuman affairs.\n\nIt may, perhaps, be asked, by way of objection to this, why did\nnot standing armies spring up out of the contentions which so often\ndistracted the ancient republics of Greece? Different answers, equally\nsatisfactory, may be given to this question. The industrious habits of\nthe people of the present day, absorbed in the pursuits of gain,\nand devoted to the improvements of agriculture and commerce, are\nincompatible with the condition of a nation of soldiers, which was the\ntrue condition of the people of those republics. The means of revenue,\nwhich have been so greatly multiplied by the increase of gold and silver\nand of the arts of industry, and the science of finance, which is the\noffspring of modern times, concurring with the habits of nations, have\nproduced an entire revolution in the system of war, and have rendered\ndisciplined armies, distinct from the body of the citizens, the\ninseparable companions of frequent hostility.\n\nThere is a wide difference, also, between military establishments in a\ncountry seldom exposed by its situation to internal invasions, and in\none which is often subject to them, and always apprehensive of them.\nThe rulers of the former can have no good pretext, if they are even so\ninclined, to keep on foot armies so numerous as must of necessity be\nmaintained in the latter. These armies being, in the first case, rarely,\nif at all, called into activity for interior defense, the people are in\nno danger of being broken to military subordination. The laws are not\naccustomed to relaxations, in favor of military exigencies; the civil\nstate remains in full vigor, neither corrupted, nor confounded with the\nprinciples or propensities of the other state. The smallness of the army\nrenders the natural strength of the community an overmatch for it;\nand the citizens, not habituated to look up to the military power for\nprotection, or to submit to its oppressions, neither love nor fear the\nsoldiery; they view them with a spirit of jealous acquiescence in a\nnecessary evil, and stand ready to resist a power which they suppose may\nbe exerted to the prejudice of their rights.\n\nThe army under such circumstances may usefully aid the magistrate to\nsuppress a small faction, or an occasional mob, or insurrection; but it\nwill be unable to enforce encroachments against the united efforts of\nthe great body of the people.\n\nIn a country in the predicament last described, the contrary of all this\nhappens. The perpetual menacings of danger oblige the government to\nbe always prepared to repel it; its armies must be numerous enough for\ninstant defense. The continual necessity for their services enhances the\nimportance of the soldier, and proportionably degrades the condition of\nthe citizen. The military state becomes elevated above the civil. The\ninhabitants of territories, often the theatre of war, are unavoidably\nsubjected to frequent infringements on their rights, which serve to\nweaken their sense of those rights; and by degrees the people are\nbrought to consider the soldiery not only as their protectors, but\nas their superiors. The transition from this disposition to that of\nconsidering them masters, is neither remote nor difficult; but it is\nvery difficult to prevail upon a people under such impressions, to make\na bold or effectual resistance to usurpations supported by the military\npower.\n\nThe kingdom of Great Britain falls within the first description. An\ninsular situation, and a powerful marine, guarding it in a great measure\nagainst the possibility of foreign invasion, supersede the necessity\nof a numerous army within the kingdom. A sufficient force to make head\nagainst a sudden descent, till the militia could have time to rally and\nembody, is all that has been deemed requisite. No motive of national\npolicy has demanded, nor would public opinion have tolerated, a larger\nnumber of troops upon its domestic establishment. There has been, for a\nlong time past, little room for the operation of the other causes, which\nhave been enumerated as the consequences of internal war. This peculiar\nfelicity of situation has, in a great degree, contributed to preserve\nthe liberty which that country to this day enjoys, in spite of the\nprevalent venality and corruption. If, on the contrary, Britain had been\nsituated on the continent, and had been compelled, as she would have\nbeen, by that situation, to make her military establishments at home\ncoextensive with those of the other great powers of Europe, she, like\nthem, would in all probability be, at this day, a victim to the absolute\npower of a single man. It is possible, though not easy, that the people\nof that island may be enslaved from other causes; but it cannot be by\nthe prowess of an army so inconsiderable as that which has been usually\nkept up within the kingdom.\n\nIf we are wise enough to preserve the Union we may for ages enjoy an\nadvantage similar to that of an insulated situation. Europe is at a\ngreat distance from us. Her colonies in our vicinity will be likely to\ncontinue too much disproportioned in strength to be able to give us any\ndangerous annoyance. Extensive military establishments cannot, in this\nposition, be necessary to our security. But if we should be disunited,\nand the integral parts should either remain separated, or, which is most\nprobable, should be thrown together into two or three confederacies,\nwe should be, in a short course of time, in the predicament of the\ncontinental powers of Europe--our liberties would be a prey to the means\nof defending ourselves against the ambition and jealousy of each other.\n\nThis is an idea not superficial or futile, but solid and weighty. It\ndeserves the most serious and mature consideration of every prudent and\nhonest man of whatever party. If such men will make a firm and\nsolemn pause, and meditate dispassionately on the importance of this\ninteresting idea; if they will contemplate it in all its attitudes, and\ntrace it to all its consequences, they will not hesitate to part with\ntrivial objections to a Constitution, the rejection of which would in\nall probability put a final period to the Union. The airy phantoms that\nflit before the distempered imaginations of some of its adversaries\nwould quickly give place to the more substantial forms of dangers, real,\ncertain, and formidable.\n\nPUBLIUS\n\n1. This objection will be fully examined in its proper place, and it\nwill be shown that the only natural precaution which could have been\ntaken on this subject has been taken; and a much better one than is to\nbe found in any constitution that has been heretofore framed in America,\nmost of which contain no guard at all on this subject.\n\n\n\n\nFEDERALIST No. 9\n\nThe Union as a Safeguard Against Domestic Faction and Insurrection\n\nFor the Independent Journal. Wednesday, November 21, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nA FIRM Union will be of the utmost moment to the peace and liberty of\nthe States, as a barrier against domestic faction and insurrection. It\nis impossible to read the history of the petty republics of Greece\nand Italy without feeling sensations of horror and disgust at the\ndistractions with which they were continually agitated, and at the\nrapid succession of revolutions by which they were kept in a state of\nperpetual vibration between the extremes of tyranny and anarchy. If they\nexhibit occasional calms, these only serve as short-lived contrast to\nthe furious storms that are to succeed. If now and then intervals of\nfelicity open to view, we behold them with a mixture of regret, arising\nfrom the reflection that the pleasing scenes before us are soon to be\noverwhelmed by the tempestuous waves of sedition and party rage. If\nmomentary rays of glory break forth from the gloom, while they dazzle us\nwith a transient and fleeting brilliancy, they at the same time admonish\nus to lament that the vices of government should pervert the direction\nand tarnish the lustre of those bright talents and exalted endowments\nfor which the favored soils that produced them have been so justly\ncelebrated.\n\nFrom the disorders that disfigure the annals of those republics the\nadvocates of despotism have drawn arguments, not only against the forms\nof republican government, but against the very principles of civil\nliberty. They have decried all free government as inconsistent with the\norder of society, and have indulged themselves in malicious exultation\nover its friends and partisans. Happily for mankind, stupendous fabrics\nreared on the basis of liberty, which have flourished for ages, have, in\na few glorious instances, refuted their gloomy sophisms. And, I trust,\nAmerica will be the broad and solid foundation of other edifices, not\nless magnificent, which will be equally permanent monuments of their\nerrors.\n\nBut it is not to be denied that the portraits they have sketched of\nrepublican government were too just copies of the originals from which\nthey were taken. If it had been found impracticable to have devised\nmodels of a more perfect structure, the enlightened friends to liberty\nwould have been obliged to abandon the cause of that species of\ngovernment as indefensible. The science of politics, however, like most\nother sciences, has received great improvement. The efficacy of various\nprinciples is now well understood, which were either not known at all,\nor imperfectly known to the ancients. The regular distribution of power\ninto distinct departments; the introduction of legislative balances\nand checks; the institution of courts composed of judges holding their\noffices during good behavior; the representation of the people in the\nlegislature by deputies of their own election: these are wholly new\ndiscoveries, or have made their principal progress towards perfection\nin modern times. They are means, and powerful means, by which\nthe excellences of republican government may be retained and its\nimperfections lessened or avoided. To this catalogue of circumstances\nthat tend to the amelioration of popular systems of civil government, I\nshall venture, however novel it may appear to some, to add one more, on\na principle which has been made the foundation of an objection to the\nnew Constitution; I mean the ENLARGEMENT of the ORBIT within which such\nsystems are to revolve, either in respect to the dimensions of a single\nState or to the consolidation of several smaller States into one great\nConfederacy. The latter is that which immediately concerns the object\nunder consideration. It will, however, be of use to examine the\nprinciple in its application to a single State, which shall be attended\nto in another place.\n\nThe utility of a Confederacy, as well to suppress faction and to guard\nthe internal tranquillity of States, as to increase their external force\nand security, is in reality not a new idea. It has been practiced upon\nin different countries and ages, and has received the sanction of the\nmost approved writers on the subject of politics. The opponents of\nthe plan proposed have, with great assiduity, cited and circulated the\nobservations of Montesquieu on the necessity of a contracted territory\nfor a republican government. But they seem not to have been apprised of\nthe sentiments of that great man expressed in another part of his work,\nnor to have adverted to the consequences of the principle to which they\nsubscribe with such ready acquiescence.\n\nWhen Montesquieu recommends a small extent for republics, the standards\nhe had in view were of dimensions far short of the limits of\nalmost every one of these States. Neither Virginia, Massachusetts,\nPennsylvania, New York, North Carolina, nor Georgia can by any means be\ncompared with the models from which he reasoned and to which the terms\nof his description apply. If we therefore take his ideas on this point\nas the criterion of truth, we shall be driven to the alternative either\nof taking refuge at once in the arms of monarchy, or of splitting\nourselves into an infinity of little, jealous, clashing, tumultuous\ncommonwealths, the wretched nurseries of unceasing discord, and the\nmiserable objects of universal pity or contempt. Some of the writers who\nhave come forward on the other side of the question seem to have been\naware of the dilemma; and have even been bold enough to hint at the\ndivision of the larger States as a desirable thing. Such an infatuated\npolicy, such a desperate expedient, might, by the multiplication of\npetty offices, answer the views of men who possess not qualifications to\nextend their influence beyond the narrow circles of personal intrigue,\nbut it could never promote the greatness or happiness of the people of\nAmerica.\n\nReferring the examination of the principle itself to another place, as\nhas been already mentioned, it will be sufficient to remark here that,\nin the sense of the author who has been most emphatically quoted upon\nthe occasion, it would only dictate a reduction of the SIZE of the more\nconsiderable MEMBERS of the Union, but would not militate against their\nbeing all comprehended in one confederate government. And this is the\ntrue question, in the discussion of which we are at present interested.\n\nSo far are the suggestions of Montesquieu from standing in opposition\nto a general Union of the States, that he explicitly treats of a\nconfederate republic as the expedient for extending the sphere of\npopular government, and reconciling the advantages of monarchy with\nthose of republicanism.\n\n\"It is very probable,\" (says he(1)) \"that mankind would have been\nobliged at length to live constantly under the government of a single\nperson, had they not contrived a kind of constitution that has all the\ninternal advantages of a republican, together with the external force of\na monarchical government. I mean a CONFEDERATE REPUBLIC.\"\n\n\"This form of government is a convention by which several smaller STATES\nagree to become members of a larger ONE, which they intend to form. It\nis a kind of assemblage of societies that constitute a new one, capable\nof increasing, by means of new associations, till they arrive to such a\ndegree of power as to be able to provide for the security of the united\nbody.\"\n\n\"A republic of this kind, able to withstand an external force, may\nsupport itself without any internal corruptions. The form of this\nsociety prevents all manner of inconveniences.\"\n\n\"If a single member should attempt to usurp the supreme authority, he\ncould not be supposed to have an equal authority and credit in all the\nconfederate states. Were he to have too great influence over one, this\nwould alarm the rest. Were he to subdue a part, that which would still\nremain free might oppose him with forces independent of those which\nhe had usurped and overpower him before he could be settled in his\nusurpation.\"\n\n\"Should a popular insurrection happen in one of the confederate states\nthe others are able to quell it. Should abuses creep into one part, they\nare reformed by those that remain sound. The state may be destroyed on\none side, and not on the other; the confederacy may be dissolved, and\nthe confederates preserve their sovereignty.\"\n\n\"As this government is composed of small republics, it enjoys the\ninternal happiness of each; and with respect to its external situation,\nit is possessed, by means of the association, of all the advantages of\nlarge monarchies.\"\n\nI have thought it proper to quote at length these interesting passages,\nbecause they contain a luminous abridgment of the principal arguments\nin favor of the Union, and must effectually remove the false impressions\nwhich a misapplication of other parts of the work was calculated to\nmake. They have, at the same time, an intimate connection with the more\nimmediate design of this paper; which is, to illustrate the tendency of\nthe Union to repress domestic faction and insurrection.\n\nA distinction, more subtle than accurate, has been raised between\na CONFEDERACY and a CONSOLIDATION of the States. The essential\ncharacteristic of the first is said to be, the restriction of its\nauthority to the members in their collective capacities, without\nreaching to the individuals of whom they are composed. It is contended\nthat the national council ought to have no concern with any object\nof internal administration. An exact equality of suffrage between\nthe members has also been insisted upon as a leading feature of a\nconfederate government. These positions are, in the main, arbitrary;\nthey are supported neither by principle nor precedent. It has indeed\nhappened, that governments of this kind have generally operated in the\nmanner which the distinction taken notice of, supposes to be inherent in\ntheir nature; but there have been in most of them extensive exceptions\nto the practice, which serve to prove, as far as example will go, that\nthere is no absolute rule on the subject. And it will be clearly\nshown in the course of this investigation that as far as the principle\ncontended for has prevailed, it has been the cause of incurable disorder\nand imbecility in the government.\n\nThe definition of a CONFEDERATE REPUBLIC seems simply to be \"an\nassemblage of societies,\" or an association of two or more states\ninto one state. The extent, modifications, and objects of the federal\nauthority are mere matters of discretion. So long as the separate\norganization of the members be not abolished; so long as it exists, by\na constitutional necessity, for local purposes; though it should be in\nperfect subordination to the general authority of the union, it\nwould still be, in fact and in theory, an association of states, or\na confederacy. The proposed Constitution, so far from implying an\nabolition of the State governments, makes them constituent parts of the\nnational sovereignty, by allowing them a direct representation in\nthe Senate, and leaves in their possession certain exclusive and very\nimportant portions of sovereign power. This fully corresponds, in every\nrational import of the terms, with the idea of a federal government.\n\nIn the Lycian confederacy, which consisted of twenty-three CITIES\nor republics, the largest were entitled to THREE votes in the COMMON\nCOUNCIL, those of the middle class to TWO, and the smallest to ONE. The\nCOMMON COUNCIL had the appointment of all the judges and magistrates of\nthe respective CITIES. This was certainly the most, delicate species of\ninterference in their internal administration; for if there be any thing\nthat seems exclusively appropriated to the local jurisdictions, it is\nthe appointment of their own officers. Yet Montesquieu, speaking of this\nassociation, says: \"Were I to give a model of an excellent Confederate\nRepublic, it would be that of Lycia.\" Thus we perceive that the\ndistinctions insisted upon were not within the contemplation of this\nenlightened civilian; and we shall be led to conclude, that they are the\nnovel refinements of an erroneous theory.\n\nPUBLIUS\n\n1. \"Spirit of Laws,\" vol. i., book ix., chap. i.\n\n\n\n\nFEDERALIST No. 10\n\nThe Same Subject Continued (The Union as a Safeguard Against Domestic\nFaction and Insurrection)\n\nFrom the Daily Advertiser. Thursday, November 22, 1787.\n\nMADISON\n\nTo the People of the State of New York:\n\nAMONG the numerous advantages promised by a well constructed Union, none\ndeserves to be more accurately developed than its tendency to break and\ncontrol the violence of faction. The friend of popular governments never\nfinds himself so much alarmed for their character and fate, as when he\ncontemplates their propensity to this dangerous vice. He will not fail,\ntherefore, to set a due value on any plan which, without violating the\nprinciples to which he is attached, provides a proper cure for it.\nThe instability, injustice, and confusion introduced into the public\ncouncils, have, in truth, been the mortal diseases under which popular\ngovernments have everywhere perished; as they continue to be the\nfavorite and fruitful topics from which the adversaries to liberty\nderive their most specious declamations. The valuable improvements made\nby the American constitutions on the popular models, both ancient\nand modern, cannot certainly be too much admired; but it would be an\nunwarrantable partiality, to contend that they have as effectually\nobviated the danger on this side, as was wished and expected. Complaints\nare everywhere heard from our most considerate and virtuous citizens,\nequally the friends of public and private faith, and of public and\npersonal liberty, that our governments are too unstable, that the public\ngood is disregarded in the conflicts of rival parties, and that measures\nare too often decided, not according to the rules of justice and the\nrights of the minor party, but by the superior force of an interested\nand overbearing majority. However anxiously we may wish that these\ncomplaints had no foundation, the evidence, of known facts will not\npermit us to deny that they are in some degree true. It will be found,\nindeed, on a candid review of our situation, that some of the distresses\nunder which we labor have been erroneously charged on the operation\nof our governments; but it will be found, at the same time, that other\ncauses will not alone account for many of our heaviest misfortunes;\nand, particularly, for that prevailing and increasing distrust of public\nengagements, and alarm for private rights, which are echoed from one\nend of the continent to the other. These must be chiefly, if not wholly,\neffects of the unsteadiness and injustice with which a factious spirit\nhas tainted our public administrations.\n\nBy a faction, I understand a number of citizens, whether amounting to a\nmajority or a minority of the whole, who are united and actuated by some\ncommon impulse of passion, or of interest, adversed to the rights of\nother citizens, or to the permanent and aggregate interests of the\ncommunity.\n\nThere are two methods of curing the mischiefs of faction: the one, by\nremoving its causes; the other, by controlling its effects.\n\nThere are again two methods of removing the causes of faction: the\none, by destroying the liberty which is essential to its existence; the\nother, by giving to every citizen the same opinions, the same passions,\nand the same interests.\n\nIt could never be more truly said than of the first remedy, that it was\nworse than the disease. Liberty is to faction what air is to fire, an\naliment without which it instantly expires. But it could not be less\nfolly to abolish liberty, which is essential to political life, because\nit nourishes faction, than it would be to wish the annihilation of\nair, which is essential to animal life, because it imparts to fire its\ndestructive agency.\n\nThe second expedient is as impracticable as the first would be unwise.\nAs long as the reason of man continues fallible, and he is at liberty\nto exercise it, different opinions will be formed. As long as the\nconnection subsists between his reason and his self-love, his opinions\nand his passions will have a reciprocal influence on each other; and the\nformer will be objects to which the latter will attach themselves. The\ndiversity in the faculties of men, from which the rights of property\noriginate, is not less an insuperable obstacle to a uniformity of\ninterests. The protection of these faculties is the first object of\ngovernment. From the protection of different and unequal faculties of\nacquiring property, the possession of different degrees and kinds of\nproperty immediately results; and from the influence of these on the\nsentiments and views of the respective proprietors, ensues a division of\nthe society into different interests and parties.\n\nThe latent causes of faction are thus sown in the nature of man; and\nwe see them everywhere brought into different degrees of activity,\naccording to the different circumstances of civil society. A zeal for\ndifferent opinions concerning religion, concerning government, and many\nother points, as well of speculation as of practice; an attachment to\ndifferent leaders ambitiously contending for pre-eminence and power; or\nto persons of other descriptions whose fortunes have been interesting\nto the human passions, have, in turn, divided mankind into parties,\ninflamed them with mutual animosity, and rendered them much more\ndisposed to vex and oppress each other than to co-operate for their\ncommon good. So strong is this propensity of mankind to fall into mutual\nanimosities, that where no substantial occasion presents itself, the\nmost frivolous and fanciful distinctions have been sufficient to kindle\ntheir unfriendly passions and excite their most violent conflicts. But\nthe most common and durable source of factions has been the various\nand unequal distribution of property. Those who hold and those who are\nwithout property have ever formed distinct interests in society.\nThose who are creditors, and those who are debtors, fall under a\nlike discrimination. A landed interest, a manufacturing interest, a\nmercantile interest, a moneyed interest, with many lesser interests,\ngrow up of necessity in civilized nations, and divide them into\ndifferent classes, actuated by different sentiments and views. The\nregulation of these various and interfering interests forms the\nprincipal task of modern legislation, and involves the spirit of party\nand faction in the necessary and ordinary operations of the government.\n\nNo man is allowed to be a judge in his own cause, because his interest\nwould certainly bias his judgment, and, not improbably, corrupt his\nintegrity. With equal, nay with greater reason, a body of men are unfit\nto be both judges and parties at the same time; yet what are many of the\nmost important acts of legislation, but so many judicial determinations,\nnot indeed concerning the rights of single persons, but concerning the\nrights of large bodies of citizens? And what are the different classes\nof legislators but advocates and parties to the causes which they\ndetermine? Is a law proposed concerning private debts? It is a question\nto which the creditors are parties on one side and the debtors on the\nother. Justice ought to hold the balance between them. Yet the parties\nare, and must be, themselves the judges; and the most numerous party,\nor, in other words, the most powerful faction must be expected to\nprevail. Shall domestic manufactures be encouraged, and in what degree,\nby restrictions on foreign manufactures? are questions which would be\ndifferently decided by the landed and the manufacturing classes, and\nprobably by neither with a sole regard to justice and the public good.\nThe apportionment of taxes on the various descriptions of property is\nan act which seems to require the most exact impartiality; yet there is,\nperhaps, no legislative act in which greater opportunity and temptation\nare given to a predominant party to trample on the rules of justice.\nEvery shilling with which they overburden the inferior number, is a\nshilling saved to their own pockets.\n\nIt is in vain to say that enlightened statesmen will be able to adjust\nthese clashing interests, and render them all subservient to the public\ngood. Enlightened statesmen will not always be at the helm. Nor, in many\ncases, can such an adjustment be made at all without taking into view\nindirect and remote considerations, which will rarely prevail over the\nimmediate interest which one party may find in disregarding the rights\nof another or the good of the whole.\n\nThe inference to which we are brought is, that the CAUSES of faction\ncannot be removed, and that relief is only to be sought in the means of\ncontrolling its EFFECTS.\n\nIf a faction consists of less than a majority, relief is supplied by the\nrepublican principle, which enables the majority to defeat its sinister\nviews by regular vote. It may clog the administration, it may convulse\nthe society; but it will be unable to execute and mask its violence\nunder the forms of the Constitution. When a majority is included in a\nfaction, the form of popular government, on the other hand, enables it\nto sacrifice to its ruling passion or interest both the public good\nand the rights of other citizens. To secure the public good and private\nrights against the danger of such a faction, and at the same time to\npreserve the spirit and the form of popular government, is then the\ngreat object to which our inquiries are directed. Let me add that it is\nthe great desideratum by which this form of government can be rescued\nfrom the opprobrium under which it has so long labored, and be\nrecommended to the esteem and adoption of mankind.\n\nBy what means is this object attainable? Evidently by one of two only.\nEither the existence of the same passion or interest in a majority at\nthe same time must be prevented, or the majority, having such coexistent\npassion or interest, must be rendered, by their number and local\nsituation, unable to concert and carry into effect schemes of\noppression. If the impulse and the opportunity be suffered to coincide,\nwe well know that neither moral nor religious motives can be relied on\nas an adequate control. They are not found to be such on the injustice\nand violence of individuals, and lose their efficacy in proportion to\nthe number combined together, that is, in proportion as their efficacy\nbecomes needful.\n\nFrom this view of the subject it may be concluded that a pure democracy,\nby which I mean a society consisting of a small number of citizens, who\nassemble and administer the government in person, can admit of no cure\nfor the mischiefs of faction. A common passion or interest will, in\nalmost every case, be felt by a majority of the whole; a communication\nand concert result from the form of government itself; and there is\nnothing to check the inducements to sacrifice the weaker party or an\nobnoxious individual. Hence it is that such democracies have ever\nbeen spectacles of turbulence and contention; have ever been found\nincompatible with personal security or the rights of property; and have\nin general been as short in their lives as they have been violent in\ntheir deaths. Theoretic politicians, who have patronized this species\nof government, have erroneously supposed that by reducing mankind to\na perfect equality in their political rights, they would, at the same\ntime, be perfectly equalized and assimilated in their possessions, their\nopinions, and their passions.\n\nA republic, by which I mean a government in which the scheme of\nrepresentation takes place, opens a different prospect, and promises\nthe cure for which we are seeking. Let us examine the points in which it\nvaries from pure democracy, and we shall comprehend both the nature of\nthe cure and the efficacy which it must derive from the Union.\n\nThe two great points of difference between a democracy and a republic\nare: first, the delegation of the government, in the latter, to a small\nnumber of citizens elected by the rest; secondly, the greater number of\ncitizens, and greater sphere of country, over which the latter may be\nextended.\n\nThe effect of the first difference is, on the one hand, to refine and\nenlarge the public views, by passing them through the medium of a chosen\nbody of citizens, whose wisdom may best discern the true interest of\ntheir country, and whose patriotism and love of justice will be least\nlikely to sacrifice it to temporary or partial considerations. Under\nsuch a regulation, it may well happen that the public voice, pronounced\nby the representatives of the people, will be more consonant to the\npublic good than if pronounced by the people themselves, convened for\nthe purpose. On the other hand, the effect may be inverted. Men of\nfactious tempers, of local prejudices, or of sinister designs, may, by\nintrigue, by corruption, or by other means, first obtain the suffrages,\nand then betray the interests, of the people. The question resulting is,\nwhether small or extensive republics are more favorable to the election\nof proper guardians of the public weal; and it is clearly decided in\nfavor of the latter by two obvious considerations:\n\nIn the first place, it is to be remarked that, however small the\nrepublic may be, the representatives must be raised to a certain number,\nin order to guard against the cabals of a few; and that, however large\nit may be, they must be limited to a certain number, in order to\nguard against the confusion of a multitude. Hence, the number of\nrepresentatives in the two cases not being in proportion to that of\nthe two constituents, and being proportionally greater in the small\nrepublic, it follows that, if the proportion of fit characters be not\nless in the large than in the small republic, the former will present a\ngreater option, and consequently a greater probability of a fit choice.\n\nIn the next place, as each representative will be chosen by a greater\nnumber of citizens in the large than in the small republic, it will\nbe more difficult for unworthy candidates to practice with success the\nvicious arts by which elections are too often carried; and the suffrages\nof the people being more free, will be more likely to centre in men who\npossess the most attractive merit and the most diffusive and established\ncharacters.\n\nIt must be confessed that in this, as in most other cases, there is a\nmean, on both sides of which inconveniences will be found to lie.\nBy enlarging too much the number of electors, you render the\nrepresentatives too little acquainted with all their local circumstances\nand lesser interests; as by reducing it too much, you render him unduly\nattached to these, and too little fit to comprehend and pursue great and\nnational objects. The federal Constitution forms a happy combination in\nthis respect; the great and aggregate interests being referred to the\nnational, the local and particular to the State legislatures.\n\nThe other point of difference is, the greater number of citizens\nand extent of territory which may be brought within the compass of\nrepublican than of democratic government; and it is this circumstance\nprincipally which renders factious combinations less to be dreaded\nin the former than in the latter. The smaller the society, the fewer\nprobably will be the distinct parties and interests composing it; the\nfewer the distinct parties and interests, the more frequently will\na majority be found of the same party; and the smaller the number of\nindividuals composing a majority, and the smaller the compass within\nwhich they are placed, the more easily will they concert and execute\ntheir plans of oppression. Extend the sphere, and you take in a greater\nvariety of parties and interests; you make it less probable that a\nmajority of the whole will have a common motive to invade the rights\nof other citizens; or if such a common motive exists, it will be more\ndifficult for all who feel it to discover their own strength, and to act\nin unison with each other. Besides other impediments, it may be remarked\nthat, where there is a consciousness of unjust or dishonorable purposes,\ncommunication is always checked by distrust in proportion to the number\nwhose concurrence is necessary.\n\nHence, it clearly appears, that the same advantage which a republic has\nover a democracy, in controlling the effects of faction, is enjoyed by\na large over a small republic,--is enjoyed by the Union over the\nStates composing it. Does the advantage consist in the substitution of\nrepresentatives whose enlightened views and virtuous sentiments render\nthem superior to local prejudices and schemes of injustice? It will not\nbe denied that the representation of the Union will be most likely\nto possess these requisite endowments. Does it consist in the greater\nsecurity afforded by a greater variety of parties, against the event of\nany one party being able to outnumber and oppress the rest? In an equal\ndegree does the increased variety of parties comprised within the\nUnion, increase this security. Does it, in fine, consist in the greater\nobstacles opposed to the concert and accomplishment of the secret wishes\nof an unjust and interested majority? Here, again, the extent of the\nUnion gives it the most palpable advantage.\n\nThe influence of factious leaders may kindle a flame within their\nparticular States, but will be unable to spread a general conflagration\nthrough the other States. A religious sect may degenerate into a\npolitical faction in a part of the Confederacy; but the variety of sects\ndispersed over the entire face of it must secure the national councils\nagainst any danger from that source. A rage for paper money, for an\nabolition of debts, for an equal division of property, or for any other\nimproper or wicked project, will be less apt to pervade the whole body\nof the Union than a particular member of it; in the same proportion as\nsuch a malady is more likely to taint a particular county or district,\nthan an entire State.\n\nIn the extent and proper structure of the Union, therefore, we behold\na republican remedy for the diseases most incident to republican\ngovernment. And according to the degree of pleasure and pride we feel\nin being republicans, ought to be our zeal in cherishing the spirit and\nsupporting the character of Federalists.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 11\n\nThe Utility of the Union in Respect to Commercial Relations and a Navy\n\nFor the Independent Journal. Saturday, November 24, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE importance of the Union, in a commercial light, is one of those\npoints about which there is least room to entertain a difference of\nopinion, and which has, in fact, commanded the most general assent of\nmen who have any acquaintance with the subject. This applies as well to\nour intercourse with foreign countries as with each other.\n\nThere are appearances to authorize a supposition that the adventurous\nspirit, which distinguishes the commercial character of America, has\nalready excited uneasy sensations in several of the maritime powers of\nEurope. They seem to be apprehensive of our too great interference in\nthat carrying trade, which is the support of their navigation and the\nfoundation of their naval strength. Those of them which have colonies in\nAmerica look forward to what this country is capable of becoming, with\npainful solicitude. They foresee the dangers that may threaten their\nAmerican dominions from the neighborhood of States, which have all the\ndispositions, and would possess all the means, requisite to the creation\nof a powerful marine. Impressions of this kind will naturally indicate\nthe policy of fostering divisions among us, and of depriving us, as far\nas possible, of an ACTIVE COMMERCE in our own bottoms. This would\nanswer the threefold purpose of preventing our interference in their\nnavigation, of monopolizing the profits of our trade, and of clipping\nthe wings by which we might soar to a dangerous greatness. Did not\nprudence forbid the detail, it would not be difficult to trace, by\nfacts, the workings of this policy to the cabinets of ministers.\n\nIf we continue united, we may counteract a policy so unfriendly to our\nprosperity in a variety of ways. By prohibitory regulations, extending,\nat the same time, throughout the States, we may oblige foreign countries\nto bid against each other, for the privileges of our markets. This\nassertion will not appear chimerical to those who are able to appreciate\nthe importance of the markets of three millions of people--increasing\nin rapid progression, for the most part exclusively addicted to\nagriculture, and likely from local circumstances to remain so--to any\nmanufacturing nation; and the immense difference there would be to the\ntrade and navigation of such a nation, between a direct communication in\nits own ships, and an indirect conveyance of its products and returns,\nto and from America, in the ships of another country. Suppose, for\ninstance, we had a government in America, capable of excluding Great\nBritain (with whom we have at present no treaty of commerce) from all\nour ports; what would be the probable operation of this step upon her\npolitics? Would it not enable us to negotiate, with the fairest prospect\nof success, for commercial privileges of the most valuable and extensive\nkind, in the dominions of that kingdom? When these questions have been\nasked, upon other occasions, they have received a plausible, but not a\nsolid or satisfactory answer. It has been said that prohibitions on our\npart would produce no change in the system of Britain, because she could\nprosecute her trade with us through the medium of the Dutch, who would\nbe her immediate customers and paymasters for those articles which were\nwanted for the supply of our markets. But would not her navigation be\nmaterially injured by the loss of the important advantage of being her\nown carrier in that trade? Would not the principal part of its profits\nbe intercepted by the Dutch, as a compensation for their agency and\nrisk? Would not the mere circumstance of freight occasion a considerable\ndeduction? Would not so circuitous an intercourse facilitate the\ncompetitions of other nations, by enhancing the price of British\ncommodities in our markets, and by transferring to other hands the\nmanagement of this interesting branch of the British commerce?\n\nA mature consideration of the objects suggested by these questions will\njustify a belief that the real disadvantages to Britain from such a\nstate of things, conspiring with the pre-possessions of a great part of\nthe nation in favor of the American trade, and with the importunities\nof the West India islands, would produce a relaxation in her present\nsystem, and would let us into the enjoyment of privileges in the markets\nof those islands elsewhere, from which our trade would derive the most\nsubstantial benefits. Such a point gained from the British government,\nand which could not be expected without an equivalent in exemptions\nand immunities in our markets, would be likely to have a correspondent\neffect on the conduct of other nations, who would not be inclined to see\nthemselves altogether supplanted in our trade.\n\nA further resource for influencing the conduct of European nations\ntoward us, in this respect, would arise from the establishment of a\nfederal navy. There can be no doubt that the continuance of the Union\nunder an efficient government would put it in our power, at a period not\nvery distant, to create a navy which, if it could not vie with those of\nthe great maritime powers, would at least be of respectable weight if\nthrown into the scale of either of two contending parties. This would be\nmore peculiarly the case in relation to operations in the West Indies.\nA few ships of the line, sent opportunely to the reinforcement of either\nside, would often be sufficient to decide the fate of a campaign, on the\nevent of which interests of the greatest magnitude were suspended. Our\nposition is, in this respect, a most commanding one. And if to this\nconsideration we add that of the usefulness of supplies from this\ncountry, in the prosecution of military operations in the West Indies,\nit will readily be perceived that a situation so favorable would enable\nus to bargain with great advantage for commercial privileges. A price\nwould be set not only upon our friendship, but upon our neutrality. By\na steady adherence to the Union we may hope, erelong, to become the\narbiter of Europe in America, and to be able to incline the balance\nof European competitions in this part of the world as our interest may\ndictate.\n\nBut in the reverse of this eligible situation, we shall discover that\nthe rivalships of the parts would make them checks upon each other,\nand would frustrate all the tempting advantages which nature has kindly\nplaced within our reach. In a state so insignificant our commerce would\nbe a prey to the wanton intermeddlings of all nations at war with each\nother; who, having nothing to fear from us, would with little scruple or\nremorse, supply their wants by depredations on our property as often as\nit fell in their way. The rights of neutrality will only be respected\nwhen they are defended by an adequate power. A nation, despicable by its\nweakness, forfeits even the privilege of being neutral.\n\nUnder a vigorous national government, the natural strength and resources\nof the country, directed to a common interest, would baffle all the\ncombinations of European jealousy to restrain our growth. This situation\nwould even take away the motive to such combinations, by inducing\nan impracticability of success. An active commerce, an extensive\nnavigation, and a flourishing marine would then be the offspring of\nmoral and physical necessity. We might defy the little arts of the\nlittle politicians to control or vary the irresistible and unchangeable\ncourse of nature.\n\nBut in a state of disunion, these combinations might exist and might\noperate with success. It would be in the power of the maritime nations,\navailing themselves of our universal impotence, to prescribe the\nconditions of our political existence; and as they have a common\ninterest in being our carriers, and still more in preventing our\nbecoming theirs, they would in all probability combine to embarrass our\nnavigation in such a manner as would in effect destroy it, and confine\nus to a PASSIVE COMMERCE. We should then be compelled to content\nourselves with the first price of our commodities, and to see the\nprofits of our trade snatched from us to enrich our enemies and\npersecutors. That unequaled spirit of enterprise, which signalizes the\ngenius of the American merchants and navigators, and which is in itself\nan inexhaustible mine of national wealth, would be stifled and lost,\nand poverty and disgrace would overspread a country which, with wisdom,\nmight make herself the admiration and envy of the world.\n\nThere are rights of great moment to the trade of America which are\nrights of the Union--I allude to the fisheries, to the navigation of the\nWestern lakes, and to that of the Mississippi. The dissolution of the\nConfederacy would give room for delicate questions concerning the future\nexistence of these rights; which the interest of more powerful partners\nwould hardly fail to solve to our disadvantage. The disposition of Spain\nwith regard to the Mississippi needs no comment. France and Britain\nare concerned with us in the fisheries, and view them as of the utmost\nmoment to their navigation. They, of course, would hardly remain long\nindifferent to that decided mastery, of which experience has shown us\nto be possessed in this valuable branch of traffic, and by which we are\nable to undersell those nations in their own markets. What more natural\nthan that they should be disposed to exclude from the lists such\ndangerous competitors?\n\nThis branch of trade ought not to be considered as a partial benefit.\nAll the navigating States may, in different degrees, advantageously\nparticipate in it, and under circumstances of a greater extension of\nmercantile capital, would not be unlikely to do it. As a nursery of\nseamen, it now is, or when time shall have more nearly assimilated the\nprinciples of navigation in the several States, will become, a universal\nresource. To the establishment of a navy, it must be indispensable.\n\nTo this great national object, a NAVY, union will contribute in various\nways. Every institution will grow and flourish in proportion to the\nquantity and extent of the means concentred towards its formation and\nsupport. A navy of the United States, as it would embrace the resources\nof all, is an object far less remote than a navy of any single State or\npartial confederacy, which would only embrace the resources of a single\npart. It happens, indeed, that different portions of confederated\nAmerica possess each some peculiar advantage for this essential\nestablishment. The more southern States furnish in greater abundance\ncertain kinds of naval stores--tar, pitch, and turpentine. Their wood\nfor the construction of ships is also of a more solid and lasting\ntexture. The difference in the duration of the ships of which the navy\nmight be composed, if chiefly constructed of Southern wood, would be of\nsignal importance, either in the view of naval strength or of national\neconomy. Some of the Southern and of the Middle States yield a greater\nplenty of iron, and of better quality. Seamen must chiefly be drawn\nfrom the Northern hive. The necessity of naval protection to external\nor maritime commerce does not require a particular elucidation, no more\nthan the conduciveness of that species of commerce to the prosperity of\na navy.\n\nAn unrestrained intercourse between the States themselves will advance\nthe trade of each by an interchange of their respective productions, not\nonly for the supply of reciprocal wants at home, but for exportation\nto foreign markets. The veins of commerce in every part will be\nreplenished, and will acquire additional motion and vigor from a free\ncirculation of the commodities of every part. Commercial enterprise\nwill have much greater scope, from the diversity in the productions of\ndifferent States. When the staple of one fails from a bad harvest or\nunproductive crop, it can call to its aid the staple of another.\nThe variety, not less than the value, of products for exportation\ncontributes to the activity of foreign commerce. It can be conducted\nupon much better terms with a large number of materials of a given value\nthan with a small number of materials of the same value; arising\nfrom the competitions of trade and from the fluctuations of markets.\nParticular articles may be in great demand at certain periods, and\nunsalable at others; but if there be a variety of articles, it can\nscarcely happen that they should all be at one time in the latter\npredicament, and on this account the operations of the merchant would\nbe less liable to any considerable obstruction or stagnation.\nThe speculative trader will at once perceive the force of these\nobservations, and will acknowledge that the aggregate balance of the\ncommerce of the United States would bid fair to be much more favorable\nthan that of the thirteen States without union or with partial unions.\n\nIt may perhaps be replied to this, that whether the States are united\nor disunited, there would still be an intimate intercourse between them\nwhich would answer the same ends; this intercourse would be fettered,\ninterrupted, and narrowed by a multiplicity of causes, which in the\ncourse of these papers have been amply detailed. A unity of commercial,\nas well as political, interests, can only result from a unity of\ngovernment.\n\nThere are other points of view in which this subject might be placed, of\na striking and animating kind. But they would lead us too far into the\nregions of futurity, and would involve topics not proper for a newspaper\ndiscussion. I shall briefly observe, that our situation invites and our\ninterests prompt us to aim at an ascendant in the system of American\naffairs. The world may politically, as well as geographically, be\ndivided into four parts, each having a distinct set of interests.\nUnhappily for the other three, Europe, by her arms and by her\nnegotiations, by force and by fraud, has, in different degrees, extended\nher dominion over them all. Africa, Asia, and America, have successively\nfelt her domination. The superiority she has long maintained has tempted\nher to plume herself as the Mistress of the World, and to consider the\nrest of mankind as created for her benefit. Men admired as profound\nphilosophers have, in direct terms, attributed to her inhabitants a\nphysical superiority, and have gravely asserted that all animals, and\nwith them the human species, degenerate in America--that even dogs cease\nto bark after having breathed awhile in our atmosphere.(1) Facts have\ntoo long supported these arrogant pretensions of the Europeans. It\nbelongs to us to vindicate the honor of the human race, and to teach\nthat assuming brother, moderation. Union will enable us to do it.\nDisunion will will add another victim to his triumphs. Let Americans\ndisdain to be the instruments of European greatness! Let the thirteen\nStates, bound together in a strict and indissoluble Union, concur in\nerecting one great American system, superior to the control of all\ntransatlantic force or influence, and able to dictate the terms of the\nconnection between the old and the new world!\n\nPUBLIUS \"Recherches philosophiques sur les Americains.\"\n\n\n\n\nFEDERALIST No. 12\n\nThe Utility of the Union In Respect to Revenue\n\nFrom the New York Packet. Tuesday, November 27, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE effects of Union upon the commercial prosperity of the States have\nbeen sufficiently delineated. Its tendency to promote the interests of\nrevenue will be the subject of our present inquiry.\n\nThe prosperity of commerce is now perceived and acknowledged by\nall enlightened statesmen to be the most useful as well as the most\nproductive source of national wealth, and has accordingly become a\nprimary object of their political cares. By multiplying the means of\ngratification, by promoting the introduction and circulation of the\nprecious metals, those darling objects of human avarice and enterprise,\nit serves to vivify and invigorate the channels of industry, and to make\nthem flow with greater activity and copiousness. The assiduous merchant,\nthe laborious husbandman, the active mechanic, and the industrious\nmanufacturer,--all orders of men, look forward with eager expectation\nand growing alacrity to this pleasing reward of their toils. The\noften-agitated question between agriculture and commerce has, from\nindubitable experience, received a decision which has silenced the\nrivalship that once subsisted between them, and has proved, to the\nsatisfaction of their friends, that their interests are intimately\nblended and interwoven. It has been found in various countries that, in\nproportion as commerce has flourished, land has risen in value. And how\ncould it have happened otherwise? Could that which procures a freer vent\nfor the products of the earth, which furnishes new incitements to the\ncultivation of land, which is the most powerful instrument in increasing\nthe quantity of money in a state--could that, in fine, which is the\nfaithful handmaid of labor and industry, in every shape, fail to augment\nthat article, which is the prolific parent of far the greatest part\nof the objects upon which they are exerted? It is astonishing that so\nsimple a truth should ever have had an adversary; and it is one, among\na multitude of proofs, how apt a spirit of ill-informed jealousy, or\nof too great abstraction and refinement, is to lead men astray from the\nplainest truths of reason and conviction.\n\nThe ability of a country to pay taxes must always be proportioned, in\na great degree, to the quantity of money in circulation, and to the\ncelerity with which it circulates. Commerce, contributing to both these\nobjects, must of necessity render the payment of taxes easier, and\nfacilitate the requisite supplies to the treasury. The hereditary\ndominions of the Emperor of Germany contain a great extent of fertile,\ncultivated, and populous territory, a large proportion of which is\nsituated in mild and luxuriant climates. In some parts of this territory\nare to be found the best gold and silver mines in Europe. And yet, from\nthe want of the fostering influence of commerce, that monarch can\nboast but slender revenues. He has several times been compelled to\nowe obligations to the pecuniary succors of other nations for the\npreservation of his essential interests, and is unable, upon the\nstrength of his own resources, to sustain a long or continued war.\n\nBut it is not in this aspect of the subject alone that Union will be\nseen to conduce to the purpose of revenue. There are other points of\nview, in which its influence will appear more immediate and decisive. It\nis evident from the state of the country, from the habits of the\npeople, from the experience we have had on the point itself, that it is\nimpracticable to raise any very considerable sums by direct taxation.\nTax laws have in vain been multiplied; new methods to enforce the\ncollection have in vain been tried; the public expectation has been\nuniformly disappointed, and the treasuries of the States have remained\nempty. The popular system of administration inherent in the nature of\npopular government, coinciding with the real scarcity of money incident\nto a languid and mutilated state of trade, has hitherto defeated every\nexperiment for extensive collections, and has at length taught the\ndifferent legislatures the folly of attempting them.\n\nNo person acquainted with what happens in other countries will be\nsurprised at this circumstance. In so opulent a nation as that of\nBritain, where direct taxes from superior wealth must be much more\ntolerable, and, from the vigor of the government, much more practicable,\nthan in America, far the greatest part of the national revenue is\nderived from taxes of the indirect kind, from imposts, and from\nexcises. Duties on imported articles form a large branch of this latter\ndescription.\n\nIn America, it is evident that we must a long time depend for the means\nof revenue chiefly on such duties. In most parts of it, excises must\nbe confined within a narrow compass. The genius of the people will ill\nbrook the inquisitive and peremptory spirit of excise laws. The pockets\nof the farmers, on the other hand, will reluctantly yield but scanty\nsupplies, in the unwelcome shape of impositions on their houses and\nlands; and personal property is too precarious and invisible a fund to\nbe laid hold of in any other way than by the imperceptible agency of\ntaxes on consumption.\n\nIf these remarks have any foundation, that state of things which will\nbest enable us to improve and extend so valuable a resource must be\nbest adapted to our political welfare. And it cannot admit of a serious\ndoubt, that this state of things must rest on the basis of a general\nUnion. As far as this would be conducive to the interests of commerce,\nso far it must tend to the extension of the revenue to be drawn from\nthat source. As far as it would contribute to rendering regulations for\nthe collection of the duties more simple and efficacious, so far it\nmust serve to answer the purposes of making the same rate of duties\nmore productive, and of putting it into the power of the government to\nincrease the rate without prejudice to trade.\n\nThe relative situation of these States; the number of rivers with which\nthey are intersected, and of bays that wash there shores; the facility\nof communication in every direction; the affinity of language\nand manners; the familiar habits of intercourse;--all these are\ncircumstances that would conspire to render an illicit trade between\nthem a matter of little difficulty, and would insure frequent evasions\nof the commercial regulations of each other. The separate States or\nconfederacies would be necessitated by mutual jealousy to avoid the\ntemptations to that kind of trade by the lowness of their duties. The\ntemper of our governments, for a long time to come, would not permit\nthose rigorous precautions by which the European nations guard the\navenues into their respective countries, as well by land as by\nwater; and which, even there, are found insufficient obstacles to the\nadventurous stratagems of avarice.\n\nIn France, there is an army of patrols (as they are called) constantly\nemployed to secure their fiscal regulations against the inroads of the\ndealers in contraband trade. Mr. Neckar computes the number of these\npatrols at upwards of twenty thousand. This shows the immense difficulty\nin preventing that species of traffic, where there is an inland\ncommunication, and places in a strong light the disadvantages with which\nthe collection of duties in this country would be encumbered, if by\ndisunion the States should be placed in a situation, with respect to\neach other, resembling that of France with respect to her neighbors. The\narbitrary and vexatious powers with which the patrols are necessarily\narmed, would be intolerable in a free country.\n\nIf, on the contrary, there be but one government pervading all the\nStates, there will be, as to the principal part of our commerce, but\nONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly from\nforeign countries, laden with valuable cargoes, would rarely choose to\nhazard themselves to the complicated and critical perils which would\nattend attempts to unlade prior to their coming into port. They would\nhave to dread both the dangers of the coast, and of detection, as well\nafter as before their arrival at the places of their final destination.\nAn ordinary degree of vigilance would be competent to the prevention\nof any material infractions upon the rights of the revenue. A few armed\nvessels, judiciously stationed at the entrances of our ports, might at\na small expense be made useful sentinels of the laws. And the government\nhaving the same interest to provide against violations everywhere,\nthe co-operation of its measures in each State would have a powerful\ntendency to render them effectual. Here also we should preserve by\nUnion, an advantage which nature holds out to us, and which would be\nrelinquished by separation. The United States lie at a great distance\nfrom Europe, and at a considerable distance from all other places\nwith which they would have extensive connections of foreign trade.\nThe passage from them to us, in a few hours, or in a single night,\nas between the coasts of France and Britain, and of other neighboring\nnations, would be impracticable. This is a prodigious security against a\ndirect contraband with foreign countries; but a circuitous contraband to\none State, through the medium of another, would be both easy and safe.\nThe difference between a direct importation from abroad, and an indirect\nimportation through the channel of a neighboring State, in small\nparcels, according to time and opportunity, with the additional\nfacilities of inland communication, must be palpable to every man of\ndiscernment.\n\nIt is therefore evident, that one national government would be able, at\nmuch less expense, to extend the duties on imports, beyond comparison,\nfurther than would be practicable to the States separately, or to any\npartial confederacies. Hitherto, I believe, it may safely be asserted,\nthat these duties have not upon an average exceeded in any State three\nper cent. In France they are estimated to be about fifteen per cent.,\nand in Britain they exceed this proportion.(1) There seems to be nothing\nto hinder their being increased in this country to at least treble their\npresent amount. The single article of ardent spirits, under federal\nregulation, might be made to furnish a considerable revenue. Upon a\nratio to the importation into this State, the whole quantity imported\ninto the United States may be estimated at four millions of gallons;\nwhich, at a shilling per gallon, would produce two hundred thousand\npounds. That article would well bear this rate of duty; and if it should\ntend to diminish the consumption of it, such an effect would be equally\nfavorable to the agriculture, to the economy, to the morals, and to the\nhealth of the society. There is, perhaps, nothing so much a subject of\nnational extravagance as these spirits.\n\nWhat will be the consequence, if we are not able to avail ourselves of\nthe resource in question in its full extent? A nation cannot long exist\nwithout revenues. Destitute of this essential support, it must resign\nits independence, and sink into the degraded condition of a province.\nThis is an extremity to which no government will of choice accede.\nRevenue, therefore, must be had at all events. In this country, if the\nprincipal part be not drawn from commerce, it must fall with oppressive\nweight upon land. It has been already intimated that excises, in their\ntrue signification, are too little in unison with the feelings of the\npeople, to admit of great use being made of that mode of taxation; nor,\nindeed, in the States where almost the sole employment is agriculture,\nare the objects proper for excise sufficiently numerous to permit very\nample collections in that way. Personal estate (as has been before\nremarked), from the difficulty in tracing it, cannot be subjected to\nlarge contributions, by any other means than by taxes on consumption. In\npopulous cities, it may be enough the subject of conjecture, to occasion\nthe oppression of individuals, without much aggregate benefit to the\nState; but beyond these circles, it must, in a great measure, escape the\neye and the hand of the tax-gatherer. As the necessities of the State,\nnevertheless, must be satisfied in some mode or other, the defect of\nother resources must throw the principal weight of public burdens on\nthe possessors of land. And as, on the other hand, the wants of the\ngovernment can never obtain an adequate supply, unless all the sources\nof revenue are open to its demands, the finances of the community, under\nsuch embarrassments, cannot be put into a situation consistent with\nits respectability or its security. Thus we shall not even have the\nconsolations of a full treasury, to atone for the oppression of that\nvaluable class of the citizens who are employed in the cultivation of\nthe soil. But public and private distress will keep pace with each\nother in gloomy concert; and unite in deploring the infatuation of those\ncounsels which led to disunion.\n\nPUBLIUS\n\n1. If my memory be right they amount to twenty per cent.\n\n\n\n\nFEDERALIST No. 13\n\nAdvantage of the Union in Respect to Economy in Government\n\nFor the Independent Journal. Wednesday, November 28, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nAs CONNECTED with the subject of revenue, we may with propriety consider\nthat of economy. The money saved from one object may be usefully applied\nto another, and there will be so much the less to be drawn from the\npockets of the people. If the States are united under one government,\nthere will be but one national civil list to support; if they are\ndivided into several confederacies, there will be as many different\nnational civil lists to be provided for--and each of them, as to the\nprincipal departments, coextensive with that which would be necessary\nfor a government of the whole. The entire separation of the States into\nthirteen unconnected sovereignties is a project too extravagant and\ntoo replete with danger to have many advocates. The ideas of men who\nspeculate upon the dismemberment of the empire seem generally turned\ntoward three confederacies--one consisting of the four Northern, another\nof the four Middle, and a third of the five Southern States. There is\nlittle probability that there would be a greater number. According\nto this distribution, each confederacy would comprise an extent\nof territory larger than that of the kingdom of Great Britain. No\nwell-informed man will suppose that the affairs of such a confederacy\ncan be properly regulated by a government less comprehensive in\nits organs or institutions than that which has been proposed by\nthe convention. When the dimensions of a State attain to a certain\nmagnitude, it requires the same energy of government and the same forms\nof administration which are requisite in one of much greater extent.\nThis idea admits not of precise demonstration, because there is no rule\nby which we can measure the momentum of civil power necessary to the\ngovernment of any given number of individuals; but when we consider that\nthe island of Britain, nearly commensurate with each of the supposed\nconfederacies, contains about eight millions of people, and when we\nreflect upon the degree of authority required to direct the passions of\nso large a society to the public good, we shall see no reason to doubt\nthat the like portion of power would be sufficient to perform the same\ntask in a society far more numerous. Civil power, properly organized and\nexerted, is capable of diffusing its force to a very great extent; and\ncan, in a manner, reproduce itself in every part of a great empire by a\njudicious arrangement of subordinate institutions.\n\nThe supposition that each confederacy into which the States would be\nlikely to be divided would require a government not less comprehensive\nthan the one proposed, will be strengthened by another supposition, more\nprobable than that which presents us with three confederacies as the\nalternative to a general Union. If we attend carefully to geographical\nand commercial considerations, in conjunction with the habits and\nprejudices of the different States, we shall be led to conclude that in\ncase of disunion they will most naturally league themselves under two\ngovernments. The four Eastern States, from all the causes that form\nthe links of national sympathy and connection, may with certainty be\nexpected to unite. New York, situated as she is, would never be unwise\nenough to oppose a feeble and unsupported flank to the weight of that\nconfederacy. There are other obvious reasons that would facilitate her\naccession to it. New Jersey is too small a State to think of being a\nfrontier, in opposition to this still more powerful combination; nor\ndo there appear to be any obstacles to her admission into it. Even\nPennsylvania would have strong inducements to join the Northern league.\nAn active foreign commerce, on the basis of her own navigation, is her\ntrue policy, and coincides with the opinions and dispositions of her\ncitizens. The more Southern States, from various circumstances, may not\nthink themselves much interested in the encouragement of navigation.\nThey may prefer a system which would give unlimited scope to all nations\nto be the carriers as well as the purchasers of their commodities.\nPennsylvania may not choose to confound her interests in a connection so\nadverse to her policy. As she must at all events be a frontier, she may\ndeem it most consistent with her safety to have her exposed side turned\ntowards the weaker power of the Southern, rather than towards the\nstronger power of the Northern, Confederacy. This would give her the\nfairest chance to avoid being the Flanders of America. Whatever may be\nthe determination of Pennsylvania, if the Northern Confederacy includes\nNew Jersey, there is no likelihood of more than one confederacy to the\nsouth of that State.\n\nNothing can be more evident than that the thirteen States will be able\nto support a national government better than one half, or one third, or\nany number less than the whole. This reflection must have great weight\nin obviating that objection to the proposed plan, which is founded on\nthe principle of expense; an objection, however, which, when we come\nto take a nearer view of it, will appear in every light to stand on\nmistaken ground.\n\nIf, in addition to the consideration of a plurality of civil lists, we\ntake into view the number of persons who must necessarily be employed\nto guard the inland communication between the different confederacies\nagainst illicit trade, and who in time will infallibly spring up out of\nthe necessities of revenue; and if we also take into view the military\nestablishments which it has been shown would unavoidably result from the\njealousies and conflicts of the several nations into which the States\nwould be divided, we shall clearly discover that a separation would be\nnot less injurious to the economy, than to the tranquillity, commerce,\nrevenue, and liberty of every part.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 14\n\nObjections to the Proposed Constitution From Extent of Territory\nAnswered\n\nFrom the New York Packet. Friday, November 30, 1787.\n\nMADISON\n\nTo the People of the State of New York:\n\nWE HAVE seen the necessity of the Union, as our bulwark against foreign\ndanger, as the conservator of peace among ourselves, as the guardian\nof our commerce and other common interests, as the only substitute for\nthose military establishments which have subverted the liberties of the\nOld World, and as the proper antidote for the diseases of faction, which\nhave proved fatal to other popular governments, and of which alarming\nsymptoms have been betrayed by our own. All that remains, within this\nbranch of our inquiries, is to take notice of an objection that may be\ndrawn from the great extent of country which the Union embraces. A few\nobservations on this subject will be the more proper, as it is perceived\nthat the adversaries of the new Constitution are availing themselves\nof the prevailing prejudice with regard to the practicable sphere\nof republican administration, in order to supply, by imaginary\ndifficulties, the want of those solid objections which they endeavor in\nvain to find.\n\nThe error which limits republican government to a narrow district has\nbeen unfolded and refuted in preceding papers. I remark here only that\nit seems to owe its rise and prevalence chiefly to the confounding of a\nrepublic with a democracy, applying to the former reasonings drawn from\nthe nature of the latter. The true distinction between these forms was\nalso adverted to on a former occasion. It is, that in a democracy, the\npeople meet and exercise the government in person; in a republic,\nthey assemble and administer it by their representatives and agents. A\ndemocracy, consequently, will be confined to a small spot. A republic\nmay be extended over a large region.\n\nTo this accidental source of the error may be added the artifice of some\ncelebrated authors, whose writings have had a great share in forming\nthe modern standard of political opinions. Being subjects either of\nan absolute or limited monarchy, they have endeavored to heighten\nthe advantages, or palliate the evils of those forms, by placing in\ncomparison the vices and defects of the republican, and by citing as\nspecimens of the latter the turbulent democracies of ancient Greece and\nmodern Italy. Under the confusion of names, it has been an easy task to\ntransfer to a republic observations applicable to a democracy only; and\namong others, the observation that it can never be established but among\na small number of people, living within a small compass of territory.\n\nSuch a fallacy may have been the less perceived, as most of the popular\ngovernments of antiquity were of the democratic species; and even in\nmodern Europe, to which we owe the great principle of representation, no\nexample is seen of a government wholly popular, and founded, at the same\ntime, wholly on that principle. If Europe has the merit of discovering\nthis great mechanical power in government, by the simple agency of which\nthe will of the largest political body may be concentred, and its force\ndirected to any object which the public good requires, America can claim\nthe merit of making the discovery the basis of unmixed and extensive\nrepublics. It is only to be lamented that any of her citizens should\nwish to deprive her of the additional merit of displaying its full\nefficacy in the establishment of the comprehensive system now under her\nconsideration.\n\nAs the natural limit of a democracy is that distance from the central\npoint which will just permit the most remote citizens to assemble as\noften as their public functions demand, and will include no greater\nnumber than can join in those functions; so the natural limit of a\nrepublic is that distance from the centre which will barely allow\nthe representatives to meet as often as may be necessary for the\nadministration of public affairs. Can it be said that the limits of the\nUnited States exceed this distance? It will not be said by those who\nrecollect that the Atlantic coast is the longest side of the Union, that\nduring the term of thirteen years, the representatives of the States\nhave been almost continually assembled, and that the members from the\nmost distant States are not chargeable with greater intermissions of\nattendance than those from the States in the neighborhood of Congress.\n\nThat we may form a juster estimate with regard to this interesting\nsubject, let us resort to the actual dimensions of the Union. The\nlimits, as fixed by the treaty of peace, are: on the east the Atlantic,\non the south the latitude of thirty-one degrees, on the west the\nMississippi, and on the north an irregular line running in some\ninstances beyond the forty-fifth degree, in others falling as low as the\nforty-second. The southern shore of Lake Erie lies below that latitude.\nComputing the distance between the thirty-first and forty-fifth degrees,\nit amounts to nine hundred and seventy-three common miles; computing it\nfrom thirty-one to forty-two degrees, to seven hundred and sixty-four\nmiles and a half. Taking the mean for the distance, the amount will be\neight hundred and sixty-eight miles and three-fourths. The mean distance\nfrom the Atlantic to the Mississippi does not probably exceed seven\nhundred and fifty miles. On a comparison of this extent with that of\nseveral countries in Europe, the practicability of rendering our system\ncommensurate to it appears to be demonstrable. It is not a great deal\nlarger than Germany, where a diet representing the whole empire is\ncontinually assembled; or than Poland before the late dismemberment,\nwhere another national diet was the depositary of the supreme power.\nPassing by France and Spain, we find that in Great Britain, inferior as\nit may be in size, the representatives of the northern extremity of the\nisland have as far to travel to the national council as will be required\nof those of the most remote parts of the Union.\n\nFavorable as this view of the subject may be, some observations remain\nwhich will place it in a light still more satisfactory.\n\nIn the first place it is to be remembered that the general government is\nnot to be charged with the whole power of making and administering laws.\nIts jurisdiction is limited to certain enumerated objects, which concern\nall the members of the republic, but which are not to be attained by\nthe separate provisions of any. The subordinate governments, which can\nextend their care to all those other subjects which can be separately\nprovided for, will retain their due authority and activity. Were it\nproposed by the plan of the convention to abolish the governments of\nthe particular States, its adversaries would have some ground for their\nobjection; though it would not be difficult to show that if they were\nabolished the general government would be compelled, by the principle of\nself-preservation, to reinstate them in their proper jurisdiction.\n\nA second observation to be made is that the immediate object of the\nfederal Constitution is to secure the union of the thirteen primitive\nStates, which we know to be practicable; and to add to them such other\nStates as may arise in their own bosoms, or in their neighborhoods,\nwhich we cannot doubt to be equally practicable. The arrangements that\nmay be necessary for those angles and fractions of our territory which\nlie on our northwestern frontier, must be left to those whom further\ndiscoveries and experience will render more equal to the task.\n\nLet it be remarked, in the third place, that the intercourse throughout\nthe Union will be facilitated by new improvements. Roads will everywhere\nbe shortened, and kept in better order; accommodations for travelers\nwill be multiplied and meliorated; an interior navigation on our eastern\nside will be opened throughout, or nearly throughout, the whole extent\nof the thirteen States. The communication between the Western and\nAtlantic districts, and between different parts of each, will be\nrendered more and more easy by those numerous canals with which the\nbeneficence of nature has intersected our country, and which art finds\nit so little difficult to connect and complete.\n\nA fourth and still more important consideration is, that as almost every\nState will, on one side or other, be a frontier, and will thus find, in\nregard to its safety, an inducement to make some sacrifices for the\nsake of the general protection; so the States which lie at the greatest\ndistance from the heart of the Union, and which, of course, may partake\nleast of the ordinary circulation of its benefits, will be at the same\ntime immediately contiguous to foreign nations, and will consequently\nstand, on particular occasions, in greatest need of its strength and\nresources. It may be inconvenient for Georgia, or the States forming our\nwestern or northeastern borders, to send their representatives to the\nseat of government; but they would find it more so to struggle alone\nagainst an invading enemy, or even to support alone the whole expense of\nthose precautions which may be dictated by the neighborhood of continual\ndanger. If they should derive less benefit, therefore, from the Union\nin some respects than the less distant States, they will derive greater\nbenefit from it in other respects, and thus the proper equilibrium will\nbe maintained throughout.\n\nI submit to you, my fellow-citizens, these considerations, in full\nconfidence that the good sense which has so often marked your decisions\nwill allow them their due weight and effect; and that you will never\nsuffer difficulties, however formidable in appearance, or however\nfashionable the error on which they may be founded, to drive you into\nthe gloomy and perilous scene into which the advocates for disunion\nwould conduct you. Hearken not to the unnatural voice which tells you\nthat the people of America, knit together as they are by so many cords\nof affection, can no longer live together as members of the same family;\ncan no longer continue the mutual guardians of their mutual happiness;\ncan no longer be fellow citizens of one great, respectable, and\nflourishing empire. Hearken not to the voice which petulantly tells you\nthat the form of government recommended for your adoption is a novelty\nin the political world; that it has never yet had a place in the\ntheories of the wildest projectors; that it rashly attempts what it is\nimpossible to accomplish. No, my countrymen, shut your ears against\nthis unhallowed language. Shut your hearts against the poison which\nit conveys; the kindred blood which flows in the veins of American\ncitizens, the mingled blood which they have shed in defense of their\nsacred rights, consecrate their Union, and excite horror at the idea\nof their becoming aliens, rivals, enemies. And if novelties are to be\nshunned, believe me, the most alarming of all novelties, the most wild\nof all projects, the most rash of all attempts, is that of rendering us\nin pieces, in order to preserve our liberties and promote our happiness.\nBut why is the experiment of an extended republic to be rejected, merely\nbecause it may comprise what is new? Is it not the glory of the people\nof America, that, whilst they have paid a decent regard to the opinions\nof former times and other nations, they have not suffered a blind\nveneration for antiquity, for custom, or for names, to overrule\nthe suggestions of their own good sense, the knowledge of their own\nsituation, and the lessons of their own experience? To this manly\nspirit, posterity will be indebted for the possession, and the world\nfor the example, of the numerous innovations displayed on the American\ntheatre, in favor of private rights and public happiness. Had no\nimportant step been taken by the leaders of the Revolution for which a\nprecedent could not be discovered, no government established of which\nan exact model did not present itself, the people of the United States\nmight, at this moment have been numbered among the melancholy victims of\nmisguided councils, must at best have been laboring under the weight\nof some of those forms which have crushed the liberties of the rest of\nmankind. Happily for America, happily, we trust, for the whole human\nrace, they pursued a new and more noble course. They accomplished a\nrevolution which has no parallel in the annals of human society. They\nreared the fabrics of governments which have no model on the face of\nthe globe. They formed the design of a great Confederacy, which it is\nincumbent on their successors to improve and perpetuate. If their works\nbetray imperfections, we wonder at the fewness of them. If they erred\nmost in the structure of the Union, this was the work most difficult to\nbe executed; this is the work which has been new modelled by the act of\nyour convention, and it is that act on which you are now to deliberate\nand to decide.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 15\n\nThe Insufficiency of the Present Confederation to Preserve the Union\n\nFor the Independent Journal. Saturday, December 1, 1787\n\nHAMILTON\n\nTo the People of the State of New York.\n\nIN THE course of the preceding papers, I have endeavored, my fellow\ncitizens, to place before you, in a clear and convincing light, the\nimportance of Union to your political safety and happiness. I have\nunfolded to you a complication of dangers to which you would be exposed,\nshould you permit that sacred knot which binds the people of America\ntogether be severed or dissolved by ambition or by avarice, by jealousy\nor by misrepresentation. In the sequel of the inquiry through which\nI propose to accompany you, the truths intended to be inculcated\nwill receive further confirmation from facts and arguments hitherto\nunnoticed. If the road over which you will still have to pass should in\nsome places appear to you tedious or irksome, you will recollect that\nyou are in quest of information on a subject the most momentous which\ncan engage the attention of a free people, that the field through which\nyou have to travel is in itself spacious, and that the difficulties of\nthe journey have been unnecessarily increased by the mazes with which\nsophistry has beset the way. It will be my aim to remove the obstacles\nfrom your progress in as compendious a manner as it can be done, without\nsacrificing utility to despatch.\n\nIn pursuance of the plan which I have laid down for the discussion\nof the subject, the point next in order to be examined is the\n\"insufficiency of the present Confederation to the preservation of the\nUnion.\" It may perhaps be asked what need there is of reasoning or proof\nto illustrate a position which is not either controverted or doubted, to\nwhich the understandings and feelings of all classes of men assent,\nand which in substance is admitted by the opponents as well as by the\nfriends of the new Constitution. It must in truth be acknowledged that,\nhowever these may differ in other respects, they in general appear\nto harmonize in this sentiment, at least, that there are material\nimperfections in our national system, and that something is necessary to\nbe done to rescue us from impending anarchy. The facts that support\nthis opinion are no longer objects of speculation. They have forced\nthemselves upon the sensibility of the people at large, and have at\nlength extorted from those, whose mistaken policy has had the principal\nshare in precipitating the extremity at which we are arrived, a\nreluctant confession of the reality of those defects in the scheme of\nour federal government, which have been long pointed out and regretted\nby the intelligent friends of the Union.\n\nWe may indeed with propriety be said to have reached almost the last\nstage of national humiliation. There is scarcely anything that can wound\nthe pride or degrade the character of an independent nation which we do\nnot experience. Are there engagements to the performance of which we\nare held by every tie respectable among men? These are the subjects of\nconstant and unblushing violation. Do we owe debts to foreigners and\nto our own citizens contracted in a time of imminent peril for the\npreservation of our political existence? These remain without any\nproper or satisfactory provision for their discharge. Have we valuable\nterritories and important posts in the possession of a foreign\npower which, by express stipulations, ought long since to have\nbeen surrendered? These are still retained, to the prejudice of our\ninterests, not less than of our rights. Are we in a condition to resent\nor to repel the aggression? We have neither troops, nor treasury, nor\ngovernment.(1) Are we even in a condition to remonstrate with dignity?\nThe just imputations on our own faith, in respect to the same treaty,\nought first to be removed. Are we entitled by nature and compact to a\nfree participation in the navigation of the Mississippi? Spain excludes\nus from it. Is public credit an indispensable resource in time of\npublic danger? We seem to have abandoned its cause as desperate and\nirretrievable. Is commerce of importance to national wealth? Ours is at\nthe lowest point of declension. Is respectability in the eyes of foreign\npowers a safeguard against foreign encroachments? The imbecility of our\ngovernment even forbids them to treat with us. Our ambassadors abroad\nare the mere pageants of mimic sovereignty. Is a violent and unnatural\ndecrease in the value of land a symptom of national distress? The price\nof improved land in most parts of the country is much lower than can be\naccounted for by the quantity of waste land at market, and can only be\nfully explained by that want of private and public confidence, which\nare so alarmingly prevalent among all ranks, and which have a direct\ntendency to depreciate property of every kind. Is private credit the\nfriend and patron of industry? That most useful kind which relates to\nborrowing and lending is reduced within the narrowest limits, and this\nstill more from an opinion of insecurity than from the scarcity of\nmoney. To shorten an enumeration of particulars which can afford neither\npleasure nor instruction, it may in general be demanded, what indication\nis there of national disorder, poverty, and insignificance that could\nbefall a community so peculiarly blessed with natural advantages as\nwe are, which does not form a part of the dark catalogue of our public\nmisfortunes?\n\nThis is the melancholy situation to which we have been brought by those\nvery maxims and councils which would now deter us from adopting the\nproposed Constitution; and which, not content with having conducted us\nto the brink of a precipice, seem resolved to plunge us into the abyss\nthat awaits us below. Here, my countrymen, impelled by every motive that\nought to influence an enlightened people, let us make a firm stand for\nour safety, our tranquillity, our dignity, our reputation. Let us at\nlast break the fatal charm which has too long seduced us from the paths\nof felicity and prosperity.\n\nIt is true, as has been before observed that facts, too stubborn to\nbe resisted, have produced a species of general assent to the abstract\nproposition that there exist material defects in our national system;\nbut the usefulness of the concession, on the part of the old adversaries\nof federal measures, is destroyed by a strenuous opposition to a remedy,\nupon the only principles that can give it a chance of success. While\nthey admit that the government of the United States is destitute of\nenergy, they contend against conferring upon it those powers which\nare requisite to supply that energy. They seem still to aim at things\nrepugnant and irreconcilable; at an augmentation of federal authority,\nwithout a diminution of State authority; at sovereignty in the Union,\nand complete independence in the members. They still, in fine, seem\nto cherish with blind devotion the political monster of an imperium in\nimperio. This renders a full display of the principal defects of the\nConfederation necessary, in order to show that the evils we experience\ndo not proceed from minute or partial imperfections, but from\nfundamental errors in the structure of the building, which cannot be\namended otherwise than by an alteration in the first principles and main\npillars of the fabric.\n\nThe great and radical vice in the construction of the existing\nConfederation is in the principle of LEGISLATION for STATES or\nGOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as\ncontradistinguished from the INDIVIDUALS of which they consist. Though\nthis principle does not run through all the powers delegated to the\nUnion, yet it pervades and governs those on which the efficacy of the\nrest depends. Except as to the rule of appointment, the United States\nhas an indefinite discretion to make requisitions for men and money; but\nthey have no authority to raise either, by regulations extending to the\nindividual citizens of America. The consequence of this is, that\nthough in theory their resolutions concerning those objects are laws,\nconstitutionally binding on the members of the Union, yet in practice\nthey are mere recommendations which the States observe or disregard at\ntheir option.\n\nIt is a singular instance of the capriciousness of the human mind, that\nafter all the admonitions we have had from experience on this head,\nthere should still be found men who object to the new Constitution, for\ndeviating from a principle which has been found the bane of the old, and\nwhich is in itself evidently incompatible with the idea of GOVERNMENT;\na principle, in short, which, if it is to be executed at all, must\nsubstitute the violent and sanguinary agency of the sword to the mild\ninfluence of the magistracy.\n\nThere is nothing absurd or impracticable in the idea of a league or\nalliance between independent nations for certain defined purposes\nprecisely stated in a treaty regulating all the details of time, place,\ncircumstance, and quantity; leaving nothing to future discretion; and\ndepending for its execution on the good faith of the parties. Compacts\nof this kind exist among all civilized nations, subject to the usual\nvicissitudes of peace and war, of observance and non-observance, as the\ninterests or passions of the contracting powers dictate. In the early\npart of the present century there was an epidemical rage in Europe for\nthis species of compacts, from which the politicians of the times\nfondly hoped for benefits which were never realized. With a view to\nestablishing the equilibrium of power and the peace of that part of the\nworld, all the resources of negotiation were exhausted, and triple and\nquadruple alliances were formed; but they were scarcely formed before\nthey were broken, giving an instructive but afflicting lesson to\nmankind, how little dependence is to be placed on treaties which have\nno other sanction than the obligations of good faith, and which oppose\ngeneral considerations of peace and justice to the impulse of any\nimmediate interest or passion.\n\nIf the particular States in this country are disposed to stand in a\nsimilar relation to each other, and to drop the project of a general\nDISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious,\nand would entail upon us all the mischiefs which have been enumerated\nunder the first head; but it would have the merit of being, at least,\nconsistent and practicable Abandoning all views towards a confederate\ngovernment, this would bring us to a simple alliance offensive and\ndefensive; and would place us in a situation to be alternate friends\nand enemies of each other, as our mutual jealousies and rivalships,\nnourished by the intrigues of foreign nations, should prescribe to us.\n\nBut if we are unwilling to be placed in this perilous situation; if we\nstill will adhere to the design of a national government, or, which\nis the same thing, of a superintending power, under the direction of\na common council, we must resolve to incorporate into our plan those\ningredients which may be considered as forming the characteristic\ndifference between a league and a government; we must extend the\nauthority of the Union to the persons of the citizens,--the only proper\nobjects of government.\n\nGovernment implies the power of making laws. It is essential to the idea\nof a law, that it be attended with a sanction; or, in other words, a\npenalty or punishment for disobedience. If there be no penalty annexed\nto disobedience, the resolutions or commands which pretend to be laws\nwill, in fact, amount to nothing more than advice or recommendation.\nThis penalty, whatever it may be, can only be inflicted in two ways: by\nthe agency of the courts and ministers of justice, or by military force;\nby the COERCION of the magistracy, or by the COERCION of arms. The first\nkind can evidently apply only to men; the last kind must of necessity,\nbe employed against bodies politic, or communities, or States. It is\nevident that there is no process of a court by which the observance\nof the laws can, in the last resort, be enforced. Sentences may be\ndenounced against them for violations of their duty; but these sentences\ncan only be carried into execution by the sword. In an association\nwhere the general authority is confined to the collective bodies of the\ncommunities, that compose it, every breach of the laws must involve a\nstate of war; and military execution must become the only instrument of\ncivil obedience. Such a state of things can certainly not deserve the\nname of government, nor would any prudent man choose to commit his\nhappiness to it.\n\nThere was a time when we were told that breaches, by the States, of the\nregulations of the federal authority were not to be expected; that\na sense of common interest would preside over the conduct of the\nrespective members, and would beget a full compliance with all the\nconstitutional requisitions of the Union. This language, at the present\nday, would appear as wild as a great part of what we now hear from\nthe same quarter will be thought, when we shall have received further\nlessons from that best oracle of wisdom, experience. It at all times\nbetrayed an ignorance of the true springs by which human conduct is\nactuated, and belied the original inducements to the establishment of\ncivil power. Why has government been instituted at all? Because the\npassions of men will not conform to the dictates of reason and justice,\nwithout constraint. Has it been found that bodies of men act with more\nrectitude or greater disinterestedness than individuals? The contrary\nof this has been inferred by all accurate observers of the conduct of\nmankind; and the inference is founded upon obvious reasons. Regard to\nreputation has a less active influence, when the infamy of a bad action\nis to be divided among a number than when it is to fall singly upon\none. A spirit of faction, which is apt to mingle its poison in the\ndeliberations of all bodies of men, will often hurry the persons of whom\nthey are composed into improprieties and excesses, for which they would\nblush in a private capacity.\n\nIn addition to all this, there is, in the nature of sovereign power,\nan impatience of control, that disposes those who are invested with the\nexercise of it, to look with an evil eye upon all external attempts to\nrestrain or direct its operations. From this spirit it happens, that\nin every political association which is formed upon the principle of\nuniting in a common interest a number of lesser sovereignties, there\nwill be found a kind of eccentric tendency in the subordinate or\ninferior orbs, by the operation of which there will be a perpetual\neffort in each to fly off from the common centre. This tendency is not\ndifficult to be accounted for. It has its origin in the love of power.\nPower controlled or abridged is almost always the rival and enemy\nof that power by which it is controlled or abridged. This simple\nproposition will teach us how little reason there is to expect, that\nthe persons intrusted with the administration of the affairs of the\nparticular members of a confederacy will at all times be ready, with\nperfect good-humor, and an unbiased regard to the public weal, to\nexecute the resolutions or decrees of the general authority. The reverse\nof this results from the constitution of human nature.\n\nIf, therefore, the measures of the Confederacy cannot be executed\nwithout the intervention of the particular administrations, there will\nbe little prospect of their being executed at all. The rulers of the\nrespective members, whether they have a constitutional right to do it\nor not, will undertake to judge of the propriety of the measures\nthemselves. They will consider the conformity of the thing proposed\nor required to their immediate interests or aims; the momentary\nconveniences or inconveniences that would attend its adoption. All this\nwill be done; and in a spirit of interested and suspicious scrutiny,\nwithout that knowledge of national circumstances and reasons of\nstate, which is essential to a right judgment, and with that strong\npredilection in favor of local objects, which can hardly fail to mislead\nthe decision. The same process must be repeated in every member of which\nthe body is constituted; and the execution of the plans, framed by the\ncouncils of the whole, will always fluctuate on the discretion of the\nill-informed and prejudiced opinion of every part. Those who have been\nconversant in the proceedings of popular assemblies; who have seen\nhow difficult it often is, where there is no exterior pressure of\ncircumstances, to bring them to harmonious resolutions on important\npoints, will readily conceive how impossible it must be to induce a\nnumber of such assemblies, deliberating at a distance from each other,\nat different times, and under different impressions, long to co-operate\nin the same views and pursuits.\n\nIn our case, the concurrence of thirteen distinct sovereign wills is\nrequisite, under the Confederation, to the complete execution of every\nimportant measure that proceeds from the Union. It has happened as was\nto have been foreseen. The measures of the Union have not been executed;\nthe delinquencies of the States have, step by step, matured themselves\nto an extreme, which has, at length, arrested all the wheels of the\nnational government, and brought them to an awful stand. Congress\nat this time scarcely possess the means of keeping up the forms of\nadministration, till the States can have time to agree upon a more\nsubstantial substitute for the present shadow of a federal government.\nThings did not come to this desperate extremity at once. The\ncauses which have been specified produced at first only unequal and\ndisproportionate degrees of compliance with the requisitions of the\nUnion. The greater deficiencies of some States furnished the pretext of\nexample and the temptation of interest to the complying, or to the least\ndelinquent States. Why should we do more in proportion than those who\nare embarked with us in the same political voyage? Why should we consent\nto bear more than our proper share of the common burden? These were\nsuggestions which human selfishness could not withstand, and which even\nspeculative men, who looked forward to remote consequences, could not,\nwithout hesitation, combat. Each State, yielding to the persuasive voice\nof immediate interest or convenience, has successively withdrawn its\nsupport, till the frail and tottering edifice seems ready to fall upon\nour heads, and to crush us beneath its ruins.\n\nPUBLIUS\n\n1. \"I mean for the Union.\"\n\n\n\n\nFEDERALIST No. 16\n\nThe Same Subject Continued (The Insufficiency of the Present\nConfederation to Preserve the Union)\n\nFrom the New York Packet. Tuesday, December 4, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE tendency of the principle of legislation for States, or communities,\nin their political capacities, as it has been exemplified by the\nexperiment we have made of it, is equally attested by the events which\nhave befallen all other governments of the confederate kind, of which\nwe have any account, in exact proportion to its prevalence in those\nsystems. The confirmations of this fact will be worthy of a distinct\nand particular examination. I shall content myself with barely observing\nhere, that of all the confederacies of antiquity, which history has\nhanded down to us, the Lycian and Achaean leagues, as far as there\nremain vestiges of them, appear to have been most free from the fetters\nof that mistaken principle, and were accordingly those which have best\ndeserved, and have most liberally received, the applauding suffrages of\npolitical writers.\n\nThis exceptionable principle may, as truly as emphatically, be styled\nthe parent of anarchy: It has been seen that delinquencies in the\nmembers of the Union are its natural and necessary offspring; and that\nwhenever they happen, the only constitutional remedy is force, and the\nimmediate effect of the use of it, civil war.\n\nIt remains to inquire how far so odious an engine of government, in its\napplication to us, would even be capable of answering its end. If there\nshould not be a large army constantly at the disposal of the national\ngovernment it would either not be able to employ force at all, or,\nwhen this could be done, it would amount to a war between parts of\nthe Confederacy concerning the infractions of a league, in which the\nstrongest combination would be most likely to prevail, whether it\nconsisted of those who supported or of those who resisted the general\nauthority. It would rarely happen that the delinquency to be redressed\nwould be confined to a single member, and if there were more than one\nwho had neglected their duty, similarity of situation would induce them\nto unite for common defense. Independent of this motive of sympathy, if\na large and influential State should happen to be the aggressing member,\nit would commonly have weight enough with its neighbors to win over some\nof them as associates to its cause. Specious arguments of danger to\nthe common liberty could easily be contrived; plausible excuses for\nthe deficiencies of the party could, without difficulty, be invented\nto alarm the apprehensions, inflame the passions, and conciliate the\ngood-will, even of those States which were not chargeable with any\nviolation or omission of duty. This would be the more likely to take\nplace, as the delinquencies of the larger members might be expected\nsometimes to proceed from an ambitious premeditation in their rulers,\nwith a view to getting rid of all external control upon their designs\nof personal aggrandizement; the better to effect which it is presumable\nthey would tamper beforehand with leading individuals in the adjacent\nStates. If associates could not be found at home, recourse would be\nhad to the aid of foreign powers, who would seldom be disinclined to\nencouraging the dissensions of a Confederacy, from the firm union\nof which they had so much to fear. When the sword is once drawn, the\npassions of men observe no bounds of moderation. The suggestions of\nwounded pride, the instigations of irritated resentment, would be apt\nto carry the States against which the arms of the Union were exerted, to\nany extremes necessary to avenge the affront or to avoid the disgrace\nof submission. The first war of this kind would probably terminate in a\ndissolution of the Union.\n\nThis may be considered as the violent death of the Confederacy. Its more\nnatural death is what we now seem to be on the point of experiencing, if\nthe federal system be not speedily renovated in a more substantial form.\nIt is not probable, considering the genius of this country, that the\ncomplying States would often be inclined to support the authority of the\nUnion by engaging in a war against the non-complying States. They would\nalways be more ready to pursue the milder course of putting themselves\nupon an equal footing with the delinquent members by an imitation of\ntheir example. And the guilt of all would thus become the security of\nall. Our past experience has exhibited the operation of this spirit in\nits full light. There would, in fact, be an insuperable difficulty in\nascertaining when force could with propriety be employed. In the article\nof pecuniary contribution, which would be the most usual source of\ndelinquency, it would often be impossible to decide whether it had\nproceeded from disinclination or inability. The pretense of the latter\nwould always be at hand. And the case must be very flagrant in which its\nfallacy could be detected with sufficient certainty to justify the harsh\nexpedient of compulsion. It is easy to see that this problem alone, as\noften as it should occur, would open a wide field for the exercise of\nfactious views, of partiality, and of oppression, in the majority that\nhappened to prevail in the national council.\n\nIt seems to require no pains to prove that the States ought not to\nprefer a national Constitution which could only be kept in motion by\nthe instrumentality of a large army continually on foot to execute the\nordinary requisitions or decrees of the government. And yet this is the\nplain alternative involved by those who wish to deny it the power of\nextending its operations to individuals. Such a scheme, if practicable\nat all, would instantly degenerate into a military despotism; but it\nwill be found in every light impracticable. The resources of the Union\nwould not be equal to the maintenance of an army considerable enough to\nconfine the larger States within the limits of their duty; nor would the\nmeans ever be furnished of forming such an army in the first instance.\nWhoever considers the populousness and strength of several of these\nStates singly at the present juncture, and looks forward to what they\nwill become, even at the distance of half a century, will at once\ndismiss as idle and visionary any scheme which aims at regulating their\nmovements by laws to operate upon them in their collective capacities,\nand to be executed by a coercion applicable to them in the same\ncapacities. A project of this kind is little less romantic than the\nmonster-taming spirit which is attributed to the fabulous heroes and\ndemi-gods of antiquity.\n\nEven in those confederacies which have been composed of members smaller\nthan many of our counties, the principle of legislation for sovereign\nStates, supported by military coercion, has never been found effectual.\nIt has rarely been attempted to be employed, but against the weaker\nmembers; and in most instances attempts to coerce the refractory and\ndisobedient have been the signals of bloody wars, in which one half of\nthe confederacy has displayed its banners against the other half.\n\nThe result of these observations to an intelligent mind must be\nclearly this, that if it be possible at any rate to construct a federal\ngovernment capable of regulating the common concerns and preserving the\ngeneral tranquillity, it must be founded, as to the objects committed\nto its care, upon the reverse of the principle contended for by the\nopponents of the proposed Constitution. It must carry its agency to\nthe persons of the citizens. It must stand in need of no intermediate\nlegislations; but must itself be empowered to employ the arm of the\nordinary magistrate to execute its own resolutions. The majesty of the\nnational authority must be manifested through the medium of the courts\nof justice. The government of the Union, like that of each State,\nmust be able to address itself immediately to the hopes and fears of\nindividuals; and to attract to its support those passions which have the\nstrongest influence upon the human heart. It must, in short, possess all\nthe means, and have aright to resort to all the methods, of executing\nthe powers with which it is intrusted, that are possessed and exercised\nby the government of the particular States.\n\nTo this reasoning it may perhaps be objected, that if any State should\nbe disaffected to the authority of the Union, it could at any time\nobstruct the execution of its laws, and bring the matter to the same\nissue of force, with the necessity of which the opposite scheme is\nreproached.\n\nThe plausibility of this objection will vanish the moment we advert to\nthe essential difference between a mere NON-COMPLIANCE and a DIRECT and\nACTIVE RESISTANCE. If the interposition of the State legislatures be\nnecessary to give effect to a measure of the Union, they have only NOT\nTO ACT, or TO ACT EVASIVELY, and the measure is defeated. This neglect\nof duty may be disguised under affected but unsubstantial provisions,\nso as not to appear, and of course not to excite any alarm in the people\nfor the safety of the Constitution. The State leaders may even make\na merit of their surreptitious invasions of it on the ground of some\ntemporary convenience, exemption, or advantage.\n\nBut if the execution of the laws of the national government should not\nrequire the intervention of the State legislatures, if they were to pass\ninto immediate operation upon the citizens themselves, the particular\ngovernments could not interrupt their progress without an open and\nviolent exertion of an unconstitutional power. No omissions nor evasions\nwould answer the end. They would be obliged to act, and in such a manner\nas would leave no doubt that they had encroached on the national rights.\nAn experiment of this nature would always be hazardous in the face of a\nconstitution in any degree competent to its own defense, and of a\npeople enlightened enough to distinguish between a legal exercise and\nan illegal usurpation of authority. The success of it would require not\nmerely a factious majority in the legislature, but the concurrence of\nthe courts of justice and of the body of the people. If the judges were\nnot embarked in a conspiracy with the legislature, they would pronounce\nthe resolutions of such a majority to be contrary to the supreme law\nof the land, unconstitutional, and void. If the people were not tainted\nwith the spirit of their State representatives, they, as the natural\nguardians of the Constitution, would throw their weight into the\nnational scale and give it a decided preponderancy in the contest.\nAttempts of this kind would not often be made with levity or rashness,\nbecause they could seldom be made without danger to the authors, unless\nin cases of a tyrannical exercise of the federal authority.\n\nIf opposition to the national government should arise from the\ndisorderly conduct of refractory or seditious individuals, it could be\novercome by the same means which are daily employed against the same\nevil under the State governments. The magistracy, being equally the\nministers of the law of the land, from whatever source it might\nemanate, would doubtless be as ready to guard the national as the local\nregulations from the inroads of private licentiousness. As to those\npartial commotions and insurrections, which sometimes disquiet society,\nfrom the intrigues of an inconsiderable faction, or from sudden or\noccasional illhumors that do not infect the great body of the community\nthe general government could command more extensive resources for the\nsuppression of disturbances of that kind than would be in the power\nof any single member. And as to those mortal feuds which, in certain\nconjunctures, spread a conflagration through a whole nation, or through\na very large proportion of it, proceeding either from weighty causes of\ndiscontent given by the government or from the contagion of some\nviolent popular paroxysm, they do not fall within any ordinary rules of\ncalculation. When they happen, they commonly amount to revolutions and\ndismemberments of empire. No form of government can always either avoid\nor control them. It is in vain to hope to guard against events too\nmighty for human foresight or precaution, and it would be idle to object\nto a government because it could not perform impossibilities.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 17\n\nThe Same Subject Continued (The Insufficiency of the Present\nConfederation to Preserve the Union)\n\nFor the Independent Journal. Wednesday, December 5, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nAN OBJECTION, of a nature different from that which has been stated and\nanswered, in my last address, may perhaps be likewise urged against the\nprinciple of legislation for the individual citizens of America. It may\nbe said that it would tend to render the government of the Union too\npowerful, and to enable it to absorb those residuary authorities, which\nit might be judged proper to leave with the States for local purposes.\nAllowing the utmost latitude to the love of power which any reasonable\nman can require, I confess I am at a loss to discover what temptation\nthe persons intrusted with the administration of the general government\ncould ever feel to divest the States of the authorities of that\ndescription. The regulation of the mere domestic police of a State\nappears to me to hold out slender allurements to ambition. Commerce,\nfinance, negotiation, and war seem to comprehend all the objects which\nhave charms for minds governed by that passion; and all the powers\nnecessary to those objects ought, in the first instance, to be lodged in\nthe national depository. The administration of private justice between\nthe citizens of the same State, the supervision of agriculture and of\nother concerns of a similar nature, all those things, in short, which\nare proper to be provided for by local legislation, can never be\ndesirable cares of a general jurisdiction. It is therefore improbable\nthat there should exist a disposition in the federal councils to\nusurp the powers with which they are connected; because the attempt to\nexercise those powers would be as troublesome as it would be nugatory;\nand the possession of them, for that reason, would contribute nothing\nto the dignity, to the importance, or to the splendor of the national\ngovernment.\n\nBut let it be admitted, for argument's sake, that mere wantonness and\nlust of domination would be sufficient to beget that disposition; still\nit may be safely affirmed, that the sense of the constituent body of the\nnational representatives, or, in other words, the people of the several\nStates, would control the indulgence of so extravagant an appetite. It\nwill always be far more easy for the State governments to encroach upon\nthe national authorities than for the national government to encroach\nupon the State authorities. The proof of this proposition turns upon\nthe greater degree of influence which the State governments if they\nadminister their affairs with uprightness and prudence, will generally\npossess over the people; a circumstance which at the same time teaches\nus that there is an inherent and intrinsic weakness in all federal\nconstitutions; and that too much pains cannot be taken in their\norganization, to give them all the force which is compatible with the\nprinciples of liberty.\n\nThe superiority of influence in favor of the particular governments\nwould result partly from the diffusive construction of the national\ngovernment, but chiefly from the nature of the objects to which the\nattention of the State administrations would be directed.\n\nIt is a known fact in human nature, that its affections are commonly\nweak in proportion to the distance or diffusiveness of the object. Upon\nthe same principle that a man is more attached to his family than to his\nneighborhood, to his neighborhood than to the community at large, the\npeople of each State would be apt to feel a stronger bias towards their\nlocal governments than towards the government of the Union; unless\nthe force of that principle should be destroyed by a much better\nadministration of the latter.\n\nThis strong propensity of the human heart would find powerful\nauxiliaries in the objects of State regulation.\n\nThe variety of more minute interests, which will necessarily fall under\nthe superintendence of the local administrations, and which will form so\nmany rivulets of influence, running through every part of the society,\ncannot be particularized, without involving a detail too tedious and\nuninteresting to compensate for the instruction it might afford.\n\nThere is one transcendant advantage belonging to the province of the\nState governments, which alone suffices to place the matter in a clear\nand satisfactory light,--I mean the ordinary administration of criminal\nand civil justice. This, of all others, is the most powerful, most\nuniversal, and most attractive source of popular obedience and\nattachment. It is that which, being the immediate and visible guardian\nof life and property, having its benefits and its terrors in constant\nactivity before the public eye, regulating all those personal interests\nand familiar concerns to which the sensibility of individuals is more\nimmediately awake, contributes, more than any other circumstance,\nto impressing upon the minds of the people, affection, esteem, and\nreverence towards the government. This great cement of society, which\nwill diffuse itself almost wholly through the channels of the particular\ngovernments, independent of all other causes of influence, would insure\nthem so decided an empire over their respective citizens as to render\nthem at all times a complete counterpoise, and, not unfrequently,\ndangerous rivals to the power of the Union.\n\nThe operations of the national government, on the other hand, falling\nless immediately under the observation of the mass of the citizens, the\nbenefits derived from it will chiefly be perceived and attended to by\nspeculative men. Relating to more general interests, they will be less\napt to come home to the feelings of the people; and, in proportion,\nless likely to inspire an habitual sense of obligation, and an active\nsentiment of attachment.\n\nThe reasoning on this head has been abundantly exemplified by the\nexperience of all federal constitutions with which we are acquainted,\nand of all others which have borne the least analogy to them.\n\nThough the ancient feudal systems were not, strictly speaking,\nconfederacies, yet they partook of the nature of that species of\nassociation. There was a common head, chieftain, or sovereign, whose\nauthority extended over the whole nation; and a number of subordinate\nvassals, or feudatories, who had large portions of land allotted to\nthem, and numerous trains of INFERIOR vassals or retainers, who occupied\nand cultivated that land upon the tenure of fealty or obedience, to\nthe persons of whom they held it. Each principal vassal was a kind of\nsovereign, within his particular demesnes. The consequences of this\nsituation were a continual opposition to authority of the sovereign, and\nfrequent wars between the great barons or chief feudatories themselves.\nThe power of the head of the nation was commonly too weak, either\nto preserve the public peace, or to protect the people against the\noppressions of their immediate lords. This period of European affairs is\nemphatically styled by historians, the times of feudal anarchy.\n\nWhen the sovereign happened to be a man of vigorous and warlike temper\nand of superior abilities, he would acquire a personal weight and\ninfluence, which answered, for the time, the purpose of a more regular\nauthority. But in general, the power of the barons triumphed over that\nof the prince; and in many instances his dominion was entirely thrown\noff, and the great fiefs were erected into independent principalities or\nStates. In those instances in which the monarch finally prevailed over\nhis vassals, his success was chiefly owing to the tyranny of those\nvassals over their dependents. The barons, or nobles, equally the\nenemies of the sovereign and the oppressors of the common people, were\ndreaded and detested by both; till mutual danger and mutual interest\neffected a union between them fatal to the power of the aristocracy. Had\nthe nobles, by a conduct of clemency and justice, preserved the fidelity\nand devotion of their retainers and followers, the contests between them\nand the prince must almost always have ended in their favor, and in the\nabridgment or subversion of the royal authority.\n\nThis is not an assertion founded merely in speculation or conjecture.\nAmong other illustrations of its truth which might be cited, Scotland\nwill furnish a cogent example. The spirit of clanship which was, at an\nearly day, introduced into that kingdom, uniting the nobles and\ntheir dependants by ties equivalent to those of kindred, rendered the\naristocracy a constant overmatch for the power of the monarch, till the\nincorporation with England subdued its fierce and ungovernable spirit,\nand reduced it within those rules of subordination which a more rational\nand more energetic system of civil polity had previously established in\nthe latter kingdom.\n\nThe separate governments in a confederacy may aptly be compared with\nthe feudal baronies; with this advantage in their favor, that from the\nreasons already explained, they will generally possess the confidence\nand good-will of the people, and with so important a support, will be\nable effectually to oppose all encroachments of the national government.\nIt will be well if they are not able to counteract its legitimate and\nnecessary authority. The points of similitude consist in the rivalship\nof power, applicable to both, and in the CONCENTRATION of large portions\nof the strength of the community into particular DEPOSITORIES, in one\ncase at the disposal of individuals, in the other case at the disposal\nof political bodies.\n\nA concise review of the events that have attended confederate\ngovernments will further illustrate this important doctrine; an\ninattention to which has been the great source of our political\nmistakes, and has given our jealousy a direction to the wrong side. This\nreview shall form the subject of some ensuing papers.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 18\n\nThe Same Subject Continued (The Insufficiency of the Present\nConfederation to Preserve the Union) For the New York Packet. Friday,\nDecember 7, 1787\n\nMADISON, with HAMILTON\n\nTo the People of the State of New York:\n\nAMONG the confederacies of antiquity, the most considerable was that of\nthe Grecian republics, associated under the Amphictyonic council. From\nthe best accounts transmitted of this celebrated institution, it bore\na very instructive analogy to the present Confederation of the American\nStates.\n\nThe members retained the character of independent and sovereign states,\nand had equal votes in the federal council. This council had a general\nauthority to propose and resolve whatever it judged necessary for the\ncommon welfare of Greece; to declare and carry on war; to decide, in\nthe last resort, all controversies between the members; to fine the\naggressing party; to employ the whole force of the confederacy against\nthe disobedient; to admit new members. The Amphictyons were the\nguardians of religion, and of the immense riches belonging to the temple\nof Delphos, where they had the right of jurisdiction in controversies\nbetween the inhabitants and those who came to consult the oracle. As a\nfurther provision for the efficacy of the federal powers, they took an\noath mutually to defend and protect the united cities, to punish\nthe violators of this oath, and to inflict vengeance on sacrilegious\ndespoilers of the temple.\n\nIn theory, and upon paper, this apparatus of powers seems amply\nsufficient for all general purposes. In several material instances,\nthey exceed the powers enumerated in the articles of confederation. The\nAmphictyons had in their hands the superstition of the times, one of the\nprincipal engines by which government was then maintained; they had a\ndeclared authority to use coercion against refractory cities, and were\nbound by oath to exert this authority on the necessary occasions.\n\nVery different, nevertheless, was the experiment from the theory.\nThe powers, like those of the present Congress, were administered by\ndeputies appointed wholly by the cities in their political capacities;\nand exercised over them in the same capacities. Hence the weakness,\nthe disorders, and finally the destruction of the confederacy. The\nmore powerful members, instead of being kept in awe and subordination,\ntyrannized successively over all the rest. Athens, as we learn from\nDemosthenes, was the arbiter of Greece seventy-three years. The\nLacedaemonians next governed it twenty-nine years; at a subsequent\nperiod, after the battle of Leuctra, the Thebans had their turn of\ndomination.\n\nIt happened but too often, according to Plutarch, that the deputies of\nthe strongest cities awed and corrupted those of the weaker; and that\njudgment went in favor of the most powerful party.\n\nEven in the midst of defensive and dangerous wars with Persia and\nMacedon, the members never acted in concert, and were, more or fewer\nof them, eternally the dupes or the hirelings of the common enemy.\nThe intervals of foreign war were filled up by domestic vicissitudes\nconvulsions, and carnage.\n\nAfter the conclusion of the war with Xerxes, it appears that the\nLacedaemonians required that a number of the cities should be turned\nout of the confederacy for the unfaithful part they had acted. The\nAthenians, finding that the Lacedaemonians would lose fewer partisans by\nsuch a measure than themselves, and would become masters of the public\ndeliberations, vigorously opposed and defeated the attempt. This piece\nof history proves at once the inefficiency of the union, the ambition\nand jealousy of its most powerful members, and the dependent and\ndegraded condition of the rest. The smaller members, though entitled by\nthe theory of their system to revolve in equal pride and majesty around\nthe common center, had become, in fact, satellites of the orbs of\nprimary magnitude.\n\nHad the Greeks, says the Abbe Milot, been as wise as they were\ncourageous, they would have been admonished by experience of the\nnecessity of a closer union, and would have availed themselves of\nthe peace which followed their success against the Persian arms, to\nestablish such a reformation. Instead of this obvious policy, Athens\nand Sparta, inflated with the victories and the glory they had acquired,\nbecame first rivals and then enemies; and did each other infinitely more\nmischief than they had suffered from Xerxes. Their mutual jealousies,\nfears, hatreds, and injuries ended in the celebrated Peloponnesian war;\nwhich itself ended in the ruin and slavery of the Athenians who had\nbegun it.\n\nAs a weak government, when not at war, is ever agitated by internal\ndissentions, so these never fail to bring on fresh calamities from\nabroad. The Phocians having ploughed up some consecrated ground\nbelonging to the temple of Apollo, the Amphictyonic council, according\nto the superstition of the age, imposed a fine on the sacrilegious\noffenders. The Phocians, being abetted by Athens and Sparta, refused to\nsubmit to the decree. The Thebans, with others of the cities, undertook\nto maintain the authority of the Amphictyons, and to avenge the violated\ngod. The latter, being the weaker party, invited the assistance of\nPhilip of Macedon, who had secretly fostered the contest. Philip gladly\nseized the opportunity of executing the designs he had long planned\nagainst the liberties of Greece. By his intrigues and bribes he won\nover to his interests the popular leaders of several cities; by their\ninfluence and votes, gained admission into the Amphictyonic council; and\nby his arts and his arms, made himself master of the confederacy.\n\nSuch were the consequences of the fallacious principle on which this\ninteresting establishment was founded. Had Greece, says a judicious\nobserver on her fate, been united by a stricter confederation, and\npersevered in her union, she would never have worn the chains of\nMacedon; and might have proved a barrier to the vast projects of Rome.\n\nThe Achaean league, as it is called, was another society of Grecian\nrepublics, which supplies us with valuable instruction.\n\nThe Union here was far more intimate, and its organization much wiser,\nthan in the preceding instance. It will accordingly appear, that though\nnot exempt from a similar catastrophe, it by no means equally deserved\nit.\n\nThe cities composing this league retained their municipal jurisdiction,\nappointed their own officers, and enjoyed a perfect equality. The\nsenate, in which they were represented, had the sole and exclusive right\nof peace and war; of sending and receiving ambassadors; of entering into\ntreaties and alliances; of appointing a chief magistrate or praetor, as\nhe was called, who commanded their armies, and who, with the advice and\nconsent of ten of the senators, not only administered the government in\nthe recess of the senate, but had a great share in its deliberations,\nwhen assembled. According to the primitive constitution, there were two\npraetors associated in the administration; but on trial a single one was\npreferred.\n\nIt appears that the cities had all the same laws and customs, the\nsame weights and measures, and the same money. But how far this\neffect proceeded from the authority of the federal council is left in\nuncertainty. It is said only that the cities were in a manner compelled\nto receive the same laws and usages. When Lacedaemon was brought into\nthe league by Philopoemen, it was attended with an abolition of the\ninstitutions and laws of Lycurgus, and an adoption of those of the\nAchaeans. The Amphictyonic confederacy, of which she had been a member,\nleft her in the full exercise of her government and her legislation.\nThis circumstance alone proves a very material difference in the genius\nof the two systems.\n\nIt is much to be regretted that such imperfect monuments remain of\nthis curious political fabric. Could its interior structure and regular\noperation be ascertained, it is probable that more light would be thrown\nby it on the science of federal government, than by any of the like\nexperiments with which we are acquainted.\n\nOne important fact seems to be witnessed by all the historians who take\nnotice of Achaean affairs. It is, that as well after the renovation of\nthe league by Aratus, as before its dissolution by the arts of\nMacedon, there was infinitely more of moderation and justice in the\nadministration of its government, and less of violence and sedition in\nthe people, than were to be found in any of the cities exercising SINGLY\nall the prerogatives of sovereignty. The Abbe Mably, in his observations\non Greece, says that the popular government, which was so tempestuous\nelsewhere, caused no disorders in the members of the Achaean republic,\nBECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE\nCONFEDERACY.\n\nWe are not to conclude too hastily, however, that faction did not, in\na certain degree, agitate the particular cities; much less that a due\nsubordination and harmony reigned in the general system. The contrary is\nsufficiently displayed in the vicissitudes and fate of the republic.\n\nWhilst the Amphictyonic confederacy remained, that of the Achaeans,\nwhich comprehended the less important cities only, made little figure on\nthe theatre of Greece. When the former became a victim to Macedon,\nthe latter was spared by the policy of Philip and Alexander. Under the\nsuccessors of these princes, however, a different policy prevailed.\nThe arts of division were practiced among the Achaeans. Each city was\nseduced into a separate interest; the union was dissolved. Some of the\ncities fell under the tyranny of Macedonian garrisons; others under that\nof usurpers springing out of their own confusions. Shame and oppression\nerelong awaken their love of liberty. A few cities reunited. Their\nexample was followed by others, as opportunities were found of\ncutting off their tyrants. The league soon embraced almost the whole\nPeloponnesus. Macedon saw its progress; but was hindered by internal\ndissensions from stopping it. All Greece caught the enthusiasm and\nseemed ready to unite in one confederacy, when the jealousy and envy in\nSparta and Athens, of the rising glory of the Achaeans, threw a fatal\ndamp on the enterprise. The dread of the Macedonian power induced the\nleague to court the alliance of the Kings of Egypt and Syria, who, as\nsuccessors of Alexander, were rivals of the king of Macedon. This policy\nwas defeated by Cleomenes, king of Sparta, who was led by his ambition\nto make an unprovoked attack on his neighbors, the Achaeans, and who,\nas an enemy to Macedon, had interest enough with the Egyptian and Syrian\nprinces to effect a breach of their engagements with the league.\n\nThe Achaeans were now reduced to the dilemma of submitting to Cleomenes,\nor of supplicating the aid of Macedon, its former oppressor. The latter\nexpedient was adopted. The contests of the Greeks always afforded a\npleasing opportunity to that powerful neighbor of intermeddling in their\naffairs. A Macedonian army quickly appeared. Cleomenes was vanquished.\nThe Achaeans soon experienced, as often happens, that a victorious and\npowerful ally is but another name for a master. All that their most\nabject compliances could obtain from him was a toleration of the\nexercise of their laws. Philip, who was now on the throne of Macedon,\nsoon provoked by his tyrannies, fresh combinations among the Greeks. The\nAchaeans, though weakened by internal dissensions and by the revolt\nof Messene, one of its members, being joined by the AEtolians and\nAthenians, erected the standard of opposition. Finding themselves,\nthough thus supported, unequal to the undertaking, they once more had\nrecourse to the dangerous expedient of introducing the succor of foreign\narms. The Romans, to whom the invitation was made, eagerly embraced\nit. Philip was conquered; Macedon subdued. A new crisis ensued to\nthe league. Dissensions broke out among it members. These the Romans\nfostered. Callicrates and other popular leaders became mercenary\ninstruments for inveigling their countrymen. The more effectually to\nnourish discord and disorder the Romans had, to the astonishment of\nthose who confided in their sincerity, already proclaimed universal\nliberty(1) throughout Greece. With the same insidious views, they now\nseduced the members from the league, by representing to their pride the\nviolation it committed on their sovereignty. By these arts this union,\nthe last hope of Greece, the last hope of ancient liberty, was torn into\npieces; and such imbecility and distraction introduced, that the arms of\nRome found little difficulty in completing the ruin which their arts\nhad commenced. The Achaeans were cut to pieces, and Achaia loaded with\nchains, under which it is groaning at this hour.\n\nI have thought it not superfluous to give the outlines of this important\nportion of history; both because it teaches more than one lesson, and\nbecause, as a supplement to the outlines of the Achaean constitution,\nit emphatically illustrates the tendency of federal bodies rather to\nanarchy among the members, than to tyranny in the head.\n\nPUBLIUS\n\n1. This was but another name more specious for the independence of the\nmembers on the federal head.\n\n\n\n\nFEDERALIST No. 19\n\nThe Same Subject Continued (The Insufficiency of the Present\nConfederation to Preserve the Union)\n\nFor the Independent Journal. Saturday, December 8, 1787\n\nMADISON, with HAMILTON\n\nTo the People of the State of New York:\n\nTHE examples of ancient confederacies, cited in my last paper, have not\nexhausted the source of experimental instruction on this subject. There\nare existing institutions, founded on a similar principle, which\nmerit particular consideration. The first which presents itself is the\nGermanic body.\n\nIn the early ages of Christianity, Germany was occupied by seven\ndistinct nations, who had no common chief. The Franks, one of the\nnumber, having conquered the Gauls, established the kingdom which has\ntaken its name from them. In the ninth century Charlemagne, its warlike\nmonarch, carried his victorious arms in every direction; and Germany\nbecame a part of his vast dominions. On the dismemberment, which\ntook place under his sons, this part was erected into a separate and\nindependent empire. Charlemagne and his immediate descendants possessed\nthe reality, as well as the ensigns and dignity of imperial power.\nBut the principal vassals, whose fiefs had become hereditary, and\nwho composed the national diets which Charlemagne had not abolished,\ngradually threw off the yoke and advanced to sovereign jurisdiction\nand independence. The force of imperial sovereignty was insufficient\nto restrain such powerful dependants; or to preserve the unity and\ntranquillity of the empire. The most furious private wars, accompanied\nwith every species of calamity, were carried on between the different\nprinces and states. The imperial authority, unable to maintain the\npublic order, declined by degrees till it was almost extinct in the\nanarchy, which agitated the long interval between the death of the last\nemperor of the Suabian, and the accession of the first emperor of\nthe Austrian lines. In the eleventh century the emperors enjoyed full\nsovereignty: In the fifteenth they had little more than the symbols and\ndecorations of power.\n\nOut of this feudal system, which has itself many of the important\nfeatures of a confederacy, has grown the federal system which\nconstitutes the Germanic empire. Its powers are vested in a diet\nrepresenting the component members of the confederacy; in the emperor,\nwho is the executive magistrate, with a negative on the decrees of the\ndiet; and in the imperial chamber and the aulic council, two judiciary\ntribunals having supreme jurisdiction in controversies which concern the\nempire, or which happen among its members.\n\nThe diet possesses the general power of legislating for the empire; of\nmaking war and peace; contracting alliances; assessing quotas of troops\nand money; constructing fortresses; regulating coin; admitting new\nmembers; and subjecting disobedient members to the ban of the empire,\nby which the party is degraded from his sovereign rights and his\npossessions forfeited. The members of the confederacy are expressly\nrestricted from entering into compacts prejudicial to the empire; from\nimposing tolls and duties on their mutual intercourse, without the\nconsent of the emperor and diet; from altering the value of money; from\ndoing injustice to one another; or from affording assistance or retreat\nto disturbers of the public peace. And the ban is denounced against such\nas shall violate any of these restrictions. The members of the diet, as\nsuch, are subject in all cases to be judged by the emperor and diet, and\nin their private capacities by the aulic council and imperial chamber.\n\nThe prerogatives of the emperor are numerous. The most important of them\nare: his exclusive right to make propositions to the diet; to negative\nits resolutions; to name ambassadors; to confer dignities and titles; to\nfill vacant electorates; to found universities; to grant privileges not\ninjurious to the states of the empire; to receive and apply the public\nrevenues; and generally to watch over the public safety. In certain\ncases, the electors form a council to him. In quality of emperor, he\npossesses no territory within the empire, nor receives any revenue\nfor his support. But his revenue and dominions, in other qualities,\nconstitute him one of the most powerful princes in Europe.\n\nFrom such a parade of constitutional powers, in the representatives and\nhead of this confederacy, the natural supposition would be, that it must\nform an exception to the general character which belongs to its kindred\nsystems. Nothing would be further from the reality. The fundamental\nprinciple on which it rests, that the empire is a community of\nsovereigns, that the diet is a representation of sovereigns and that the\nlaws are addressed to sovereigns, renders the empire a nerveless body,\nincapable of regulating its own members, insecure against external\ndangers, and agitated with unceasing fermentations in its own bowels.\n\nThe history of Germany is a history of wars between the emperor and the\nprinces and states; of wars among the princes and states themselves;\nof the licentiousness of the strong, and the oppression of the weak; of\nforeign intrusions, and foreign intrigues; of requisitions of men and\nmoney disregarded, or partially complied with; of attempts to enforce\nthem, altogether abortive, or attended with slaughter and desolation,\ninvolving the innocent with the guilty; of general imbecility,\nconfusion, and misery.\n\nIn the sixteenth century, the emperor, with one part of the empire on\nhis side, was seen engaged against the other princes and states. In one\nof the conflicts, the emperor himself was put to flight, and very near\nbeing made prisoner by the elector of Saxony. The late king of Prussia\nwas more than once pitted against his imperial sovereign; and commonly\nproved an overmatch for him. Controversies and wars among the members\nthemselves have been so common, that the German annals are crowded\nwith the bloody pages which describe them. Previous to the peace of\nWestphalia, Germany was desolated by a war of thirty years, in which the\nemperor, with one half of the empire, was on one side, and Sweden, with\nthe other half, on the opposite side. Peace was at length negotiated,\nand dictated by foreign powers; and the articles of it, to which\nforeign powers are parties, made a fundamental part of the Germanic\nconstitution.\n\nIf the nation happens, on any emergency, to be more united by the\nnecessity of self-defense, its situation is still deplorable. Military\npreparations must be preceded by so many tedious discussions, arising\nfrom the jealousies, pride, separate views, and clashing pretensions of\nsovereign bodies, that before the diet can settle the arrangements, the\nenemy are in the field; and before the federal troops are ready to take\nit, are retiring into winter quarters.\n\nThe small body of national troops, which has been judged necessary in\ntime of peace, is defectively kept up, badly paid, infected with\nlocal prejudices, and supported by irregular and disproportionate\ncontributions to the treasury.\n\nThe impossibility of maintaining order and dispensing justice among\nthese sovereign subjects, produced the experiment of dividing the\nempire into nine or ten circles or districts; of giving them an interior\norganization, and of charging them with the military execution of the\nlaws against delinquent and contumacious members. This experiment\nhas only served to demonstrate more fully the radical vice of the\nconstitution. Each circle is the miniature picture of the deformities of\nthis political monster. They either fail to execute their commissions,\nor they do it with all the devastation and carnage of civil war.\nSometimes whole circles are defaulters; and then they increase the\nmischief which they were instituted to remedy.\n\nWe may form some judgment of this scheme of military coercion from a\nsample given by Thuanus. In Donawerth, a free and imperial city of the\ncircle of Suabia, the Abbe de St. Croix enjoyed certain immunities\nwhich had been reserved to him. In the exercise of these, on some public\noccasions, outrages were committed on him by the people of the city. The\nconsequence was that the city was put under the ban of the empire, and\nthe Duke of Bavaria, though director of another circle, obtained an\nappointment to enforce it. He soon appeared before the city with a\ncorps of ten thousand troops, and finding it a fit occasion, as he had\nsecretly intended from the beginning, to revive an antiquated claim, on\nthe pretext that his ancestors had suffered the place to be dismembered\nfrom his territory,(1) he took possession of it in his own name,\ndisarmed, and punished the inhabitants, and reannexed the city to his\ndomains.\n\nIt may be asked, perhaps, what has so long kept this disjointed machine\nfrom falling entirely to pieces? The answer is obvious: The weakness of\nmost of the members, who are unwilling to expose themselves to the\nmercy of foreign powers; the weakness of most of the principal members,\ncompared with the formidable powers all around them; the vast weight\nand influence which the emperor derives from his separate and hereditary\ndominions; and the interest he feels in preserving a system with which\nhis family pride is connected, and which constitutes him the first\nprince in Europe;--these causes support a feeble and precarious Union;\nwhilst the repellant quality, incident to the nature of sovereignty,\nand which time continually strengthens, prevents any reform whatever,\nfounded on a proper consolidation. Nor is it to be imagined, if this\nobstacle could be surmounted, that the neighboring powers would suffer\na revolution to take place which would give to the empire the force\nand preeminence to which it is entitled. Foreign nations have long\nconsidered themselves as interested in the changes made by events in\nthis constitution; and have, on various occasions, betrayed their policy\nof perpetuating its anarchy and weakness.\n\nIf more direct examples were wanting, Poland, as a government over local\nsovereigns, might not improperly be taken notice of. Nor could any proof\nmore striking be given of the calamities flowing from such institutions.\nEqually unfit for self-government and self-defense, it has long been at\nthe mercy of its powerful neighbors; who have lately had the mercy to\ndisburden it of one third of its people and territories.\n\nThe connection among the Swiss cantons scarcely amounts to a\nconfederacy; though it is sometimes cited as an instance of the\nstability of such institutions.\n\nThey have no common treasury; no common troops even in war; no common\ncoin; no common judicatory; nor any other common mark of sovereignty.\n\nThey are kept together by the peculiarity of their topographical\nposition; by their individual weakness and insignificancy; by the fear\nof powerful neighbors, to one of which they were formerly subject;\nby the few sources of contention among a people of such simple and\nhomogeneous manners; by their joint interest in their dependent\npossessions; by the mutual aid they stand in need of, for suppressing\ninsurrections and rebellions, an aid expressly stipulated and often\nrequired and afforded; and by the necessity of some regular and\npermanent provision for accommodating disputes among the cantons. The\nprovision is, that the parties at variance shall each choose four judges\nout of the neutral cantons, who, in case of disagreement, choose\nan umpire. This tribunal, under an oath of impartiality, pronounces\ndefinitive sentence, which all the cantons are bound to enforce. The\ncompetency of this regulation may be estimated by a clause in their\ntreaty of 1683, with Victor Amadeus of Savoy; in which he obliges\nhimself to interpose as mediator in disputes between the cantons, and to\nemploy force, if necessary, against the contumacious party.\n\nSo far as the peculiarity of their case will admit of comparison with\nthat of the United States, it serves to confirm the principle intended\nto be established. Whatever efficacy the union may have had in ordinary\ncases, it appears that the moment a cause of difference sprang up,\ncapable of trying its strength, it failed. The controversies on the\nsubject of religion, which in three instances have kindled violent and\nbloody contests, may be said, in fact, to have severed the league. The\nProtestant and Catholic cantons have since had their separate diets,\nwhere all the most important concerns are adjusted, and which have left\nthe general diet little other business than to take care of the common\nbailages.\n\nThat separation had another consequence, which merits attention. It\nproduced opposite alliances with foreign powers: of Berne, at the\nhead of the Protestant association, with the United Provinces; and of\nLuzerne, at the head of the Catholic association, with France.\n\nPUBLIUS\n\n1. Pfeffel, \"Nouvel Abrég. Chronol. de l'Hist., etc., d'Allemagne,\" says\nthe pretext was to indemnify himself for the expense of the expedition.\n\n\n\n\nFEDERALIST No. 20\n\nThe Same Subject Continued (The Insufficiency of the Present\nConfederation to Preserve the Union)\n\nFrom the New York Packet. Tuesday, December 11, 1787.\n\nMADISON, with HAMILTON\n\nTo the People of the State of New York:\n\nTHE United Netherlands are a confederacy of republics, or rather of\naristocracies of a very remarkable texture, yet confirming all the\nlessons derived from those which we have already reviewed.\n\nThe union is composed of seven coequal and sovereign states, and each\nstate or province is a composition of equal and independent cities.\nIn all important cases, not only the provinces but the cities must be\nunanimous.\n\nThe sovereignty of the Union is represented by the States-General,\nconsisting usually of about fifty deputies appointed by the provinces.\nThey hold their seats, some for life, some for six, three, and one\nyears; from two provinces they continue in appointment during pleasure.\n\nThe States-General have authority to enter into treaties and alliances;\nto make war and peace; to raise armies and equip fleets; to ascertain\nquotas and demand contributions. In all these cases, however, unanimity\nand the sanction of their constituents are requisite. They have\nauthority to appoint and receive ambassadors; to execute treaties and\nalliances already formed; to provide for the collection of duties\non imports and exports; to regulate the mint, with a saving to the\nprovincial rights; to govern as sovereigns the dependent territories.\nThe provinces are restrained, unless with the general consent, from\nentering into foreign treaties; from establishing imposts injurious to\nothers, or charging their neighbors with higher duties than their own\nsubjects. A council of state, a chamber of accounts, with five colleges\nof admiralty, aid and fortify the federal administration.\n\nThe executive magistrate of the union is the stadtholder, who is now an\nhereditary prince. His principal weight and influence in the republic\nare derived from this independent title; from his great patrimonial\nestates; from his family connections with some of the chief potentates\nof Europe; and, more than all, perhaps, from his being stadtholder in\nthe several provinces, as well as for the union; in which provincial\nquality he has the appointment of town magistrates under certain\nregulations, executes provincial decrees, presides when he pleases in\nthe provincial tribunals, and has throughout the power of pardon.\n\nAs stadtholder of the union, he has, however, considerable prerogatives.\n\nIn his political capacity he has authority to settle disputes between\nthe provinces, when other methods fail; to assist at the deliberations\nof the States-General, and at their particular conferences; to give\naudiences to foreign ambassadors, and to keep agents for his particular\naffairs at foreign courts.\n\nIn his military capacity he commands the federal troops, provides for\ngarrisons, and in general regulates military affairs; disposes of all\nappointments, from colonels to ensigns, and of the governments and posts\nof fortified towns.\n\nIn his marine capacity he is admiral-general, and superintends and\ndirects every thing relative to naval forces and other naval\naffairs; presides in the admiralties in person or by proxy; appoints\nlieutenant-admirals and other officers; and establishes councils of war,\nwhose sentences are not executed till he approves them.\n\nHis revenue, exclusive of his private income, amounts to three hundred\nthousand florins. The standing army which he commands consists of about\nforty thousand men.\n\nSuch is the nature of the celebrated Belgic confederacy, as delineated\non parchment. What are the characters which practice has stamped upon\nit? Imbecility in the government; discord among the provinces; foreign\ninfluence and indignities; a precarious existence in peace, and peculiar\ncalamities from war.\n\nIt was long ago remarked by Grotius, that nothing but the hatred of his\ncountrymen to the house of Austria kept them from being ruined by the\nvices of their constitution.\n\nThe union of Utrecht, says another respectable writer, reposes an\nauthority in the States-General, seemingly sufficient to secure harmony,\nbut the jealousy in each province renders the practice very different\nfrom the theory.\n\nThe same instrument, says another, obliges each province to levy certain\ncontributions; but this article never could, and probably never will, be\nexecuted; because the inland provinces, who have little commerce, cannot\npay an equal quota.\n\nIn matters of contribution, it is the practice to waive the articles of\nthe constitution. The danger of delay obliges the consenting provinces\nto furnish their quotas, without waiting for the others; and then\nto obtain reimbursement from the others, by deputations, which are\nfrequent, or otherwise, as they can. The great wealth and influence of\nthe province of Holland enable her to effect both these purposes.\n\nIt has more than once happened, that the deficiencies had to be\nultimately collected at the point of the bayonet; a thing practicable,\nthough dreadful, in a confederacy where one of the members exceeds in\nforce all the rest, and where several of them are too small to meditate\nresistance; but utterly impracticable in one composed of members,\nseveral of which are equal to each other in strength and resources, and\nequal singly to a vigorous and persevering defense.\n\nForeign ministers, says Sir William Temple, who was himself a foreign\nminister, elude matters taken ad referendum, by tampering with the\nprovinces and cities. In 1726, the treaty of Hanover was delayed by\nthese means a whole year. Instances of a like nature are numerous and\nnotorious.\n\nIn critical emergencies, the States-General are often compelled to\noverleap their constitutional bounds. In 1688, they concluded a treaty\nof themselves at the risk of their heads. The treaty of Westphalia, in\n1648, by which their independence was formerly and finally recognized,\nwas concluded without the consent of Zealand. Even as recently as the\nlast treaty of peace with Great Britain, the constitutional principle\nof unanimity was departed from. A weak constitution must necessarily\nterminate in dissolution, for want of proper powers, or the usurpation\nof powers requisite for the public safety. Whether the usurpation,\nwhen once begun, will stop at the salutary point, or go forward to\nthe dangerous extreme, must depend on the contingencies of the moment.\nTyranny has perhaps oftener grown out of the assumptions of power,\ncalled for, on pressing exigencies, by a defective constitution, than\nout of the full exercise of the largest constitutional authorities.\n\nNotwithstanding the calamities produced by the stadtholdership, it has\nbeen supposed that without his influence in the individual provinces,\nthe causes of anarchy manifest in the confederacy would long ago have\ndissolved it. \"Under such a government,\" says the Abbe Mably, \"the Union\ncould never have subsisted, if the provinces had not a spring within\nthemselves, capable of quickening their tardiness, and compelling them\nto the same way of thinking. This spring is the stadtholder.\" It is\nremarked by Sir William Temple, \"that in the intermissions of the\nstadtholdership, Holland, by her riches and her authority, which drew\nthe others into a sort of dependence, supplied the place.\"\n\nThese are not the only circumstances which have controlled the tendency\nto anarchy and dissolution. The surrounding powers impose an absolute\nnecessity of union to a certain degree, at the same time that they\nnourish by their intrigues the constitutional vices which keep the\nrepublic in some degree always at their mercy.\n\nThe true patriots have long bewailed the fatal tendency of these vices,\nand have made no less than four regular experiments by EXTRAORDINARY\nASSEMBLIES, convened for the special purpose, to apply a remedy. As many\ntimes has their laudable zeal found it impossible to UNITE THE PUBLIC\nCOUNCILS in reforming the known, the acknowledged, the fatal evils of\nthe existing constitution. Let us pause, my fellow-citizens, for one\nmoment, over this melancholy and monitory lesson of history; and with\nthe tear that drops for the calamities brought on mankind by their\nadverse opinions and selfish passions, let our gratitude mingle\nan ejaculation to Heaven, for the propitious concord which has\ndistinguished the consultations for our political happiness.\n\nA design was also conceived of establishing a general tax to be\nadministered by the federal authority. This also had its adversaries and\nfailed.\n\nThis unhappy people seem to be now suffering from popular convulsions,\nfrom dissensions among the states, and from the actual invasion of\nforeign arms, the crisis of their destiny. All nations have their eyes\nfixed on the awful spectacle. The first wish prompted by humanity\nis, that this severe trial may issue in such a revolution of their\ngovernment as will establish their union, and render it the parent of\ntranquillity, freedom and happiness: The next, that the asylum under\nwhich, we trust, the enjoyment of these blessings will speedily\nbe secured in this country, may receive and console them for the\ncatastrophe of their own.\n\nI make no apology for having dwelt so long on the contemplation of these\nfederal precedents. Experience is the oracle of truth; and where its\nresponses are unequivocal, they ought to be conclusive and sacred. The\nimportant truth, which it unequivocally pronounces in the present case,\nis that a sovereignty over sovereigns, a government over governments, a\nlegislation for communities, as contradistinguished from individuals, as\nit is a solecism in theory, so in practice it is subversive of the order\nand ends of civil polity, by substituting VIOLENCE in place of LAW, or\nthe destructive COERCION of the SWORD in place of the mild and salutary\nCOERCION of the MAGISTRACY.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 21\n\nOther Defects of the Present Confederation\n\nFor the Independent Journal. Wednesday, December 12, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nHAVING in the three last numbers taken a summary review of the principal\ncircumstances and events which have depicted the genius and fate of\nother confederate governments, I shall now proceed in the enumeration of\nthe most important of those defects which have hitherto disappointed our\nhopes from the system established among ourselves. To form a safe and\nsatisfactory judgment of the proper remedy, it is absolutely necessary\nthat we should be well acquainted with the extent and malignity of the\ndisease.\n\nThe next most palpable defect of the subsisting Confederation, is\nthe total want of a SANCTION to its laws. The United States, as now\ncomposed, have no powers to exact obedience, or punish disobedience\nto their resolutions, either by pecuniary mulcts, by a suspension or\ndivestiture of privileges, or by any other constitutional mode. There\nis no express delegation of authority to them to use force against\ndelinquent members; and if such a right should be ascribed to the\nfederal head, as resulting from the nature of the social compact between\nthe States, it must be by inference and construction, in the face of\nthat part of the second article, by which it is declared, \"that each\nState shall retain every power, jurisdiction, and right, not EXPRESSLY\ndelegated to the United States in Congress assembled.\" There is,\ndoubtless, a striking absurdity in supposing that a right of this kind\ndoes not exist, but we are reduced to the dilemma either of embracing\nthat supposition, preposterous as it may seem, or of contravening or\nexplaining away a provision, which has been of late a repeated theme of\nthe eulogies of those who oppose the new Constitution; and the want\nof which, in that plan, has been the subject of much plausible\nanimadversion, and severe criticism. If we are unwilling to impair the\nforce of this applauded provision, we shall be obliged to conclude, that\nthe United States afford the extraordinary spectacle of a government\ndestitute even of the shadow of constitutional power to enforce the\nexecution of its own laws. It will appear, from the specimens which have\nbeen cited, that the American Confederacy, in this particular, stands\ndiscriminated from every other institution of a similar kind, and\nexhibits a new and unexampled phenomenon in the political world.\n\nThe want of a mutual guaranty of the State governments is another\ncapital imperfection in the federal plan. There is nothing of this kind\ndeclared in the articles that compose it; and to imply a tacit guaranty\nfrom considerations of utility, would be a still more flagrant departure\nfrom the clause which has been mentioned, than to imply a tacit power of\ncoercion from the like considerations. The want of a guaranty, though\nit might in its consequences endanger the Union, does not so immediately\nattack its existence as the want of a constitutional sanction to its\nlaws.\n\nWithout a guaranty the assistance to be derived from the Union in\nrepelling those domestic dangers which may sometimes threaten the\nexistence of the State constitutions, must be renounced. Usurpation\nmay rear its crest in each State, and trample upon the liberties of the\npeople, while the national government could legally do nothing more\nthan behold its encroachments with indignation and regret. A successful\nfaction may erect a tyranny on the ruins of order and law, while no\nsuccor could constitutionally be afforded by the Union to the friends\nand supporters of the government. The tempestuous situation from which\nMassachusetts has scarcely emerged, evinces that dangers of this kind\nare not merely speculative. Who can determine what might have been the\nissue of her late convulsions, if the malcontents had been headed by\na Caesar or by a Cromwell? Who can predict what effect a despotism,\nestablished in Massachusetts, would have upon the liberties of New\nHampshire or Rhode Island, of Connecticut or New York?\n\nThe inordinate pride of State importance has suggested to some minds an\nobjection to the principle of a guaranty in the federal government,\nas involving an officious interference in the domestic concerns of the\nmembers. A scruple of this kind would deprive us of one of the\nprincipal advantages to be expected from union, and can only flow from\na misapprehension of the nature of the provision itself. It could be\nno impediment to reforms of the State constitution by a majority of\nthe people in a legal and peaceable mode. This right would remain\nundiminished. The guaranty could only operate against changes to be\neffected by violence. Towards the preventions of calamities of this\nkind, too many checks cannot be provided. The peace of society and\nthe stability of government depend absolutely on the efficacy of\nthe precautions adopted on this head. Where the whole power of the\ngovernment is in the hands of the people, there is the less pretense for\nthe use of violent remedies in partial or occasional distempers of\nthe State. The natural cure for an ill-administration, in a popular\nor representative constitution, is a change of men. A guaranty by the\nnational authority would be as much levelled against the usurpations of\nrulers as against the ferments and outrages of faction and sedition in\nthe community.\n\nThe principle of regulating the contributions of the States to\nthe common treasury by QUOTAS is another fundamental error in the\nConfederation. Its repugnancy to an adequate supply of the national\nexigencies has been already pointed out, and has sufficiently appeared\nfrom the trial which has been made of it. I speak of it now solely with\na view to equality among the States. Those who have been accustomed\nto contemplate the circumstances which produce and constitute national\nwealth, must be satisfied that there is no common standard or barometer\nby which the degrees of it can be ascertained. Neither the value of\nlands, nor the numbers of the people, which have been successively\nproposed as the rule of State contributions, has any pretension to\nbeing a just representative. If we compare the wealth of the United\nNetherlands with that of Russia or Germany, or even of France, and if we\nat the same time compare the total value of the lands and the aggregate\npopulation of that contracted district with the total value of the lands\nand the aggregate population of the immense regions of either of the\nthree last-mentioned countries, we shall at once discover that there is\nno comparison between the proportion of either of these two objects and\nthat of the relative wealth of those nations. If the like parallel were\nto be run between several of the American States, it would furnish\na like result. Let Virginia be contrasted with North Carolina,\nPennsylvania with Connecticut, or Maryland with New Jersey, and we shall\nbe convinced that the respective abilities of those States, in relation\nto revenue, bear little or no analogy to their comparative stock in\nlands or to their comparative population. The position may be equally\nillustrated by a similar process between the counties of the same State.\nNo man who is acquainted with the State of New York will doubt that the\nactive wealth of King's County bears a much greater proportion to that\nof Montgomery than it would appear to be if we should take either\nthe total value of the lands or the total number of the people as a\ncriterion!\n\nThe wealth of nations depends upon an infinite variety of causes.\nSituation, soil, climate, the nature of the productions, the nature of\nthe government, the genius of the citizens, the degree of information\nthey possess, the state of commerce, of arts, of industry, these\ncircumstances and many more, too complex, minute, or adventitious\nto admit of a particular specification, occasion differences hardly\nconceivable in the relative opulence and riches of different countries.\nThe consequence clearly is that there can be no common measure of\nnational wealth, and, of course, no general or stationary rule by which\nthe ability of a state to pay taxes can be determined. The attempt,\ntherefore, to regulate the contributions of the members of a confederacy\nby any such rule, cannot fail to be productive of glaring inequality and\nextreme oppression.\n\nThis inequality would of itself be sufficient in America to work the\neventual destruction of the Union, if any mode of enforcing a compliance\nwith its requisitions could be devised. The suffering States would not\nlong consent to remain associated upon a principle which distributes\nthe public burdens with so unequal a hand, and which was calculated\nto impoverish and oppress the citizens of some States, while those of\nothers would scarcely be conscious of the small proportion of the weight\nthey were required to sustain. This, however, is an evil inseparable\nfrom the principle of quotas and requisitions.\n\nThere is no method of steering clear of this inconvenience, but by\nauthorizing the national government to raise its own revenues in its\nown way. Imposts, excises, and, in general, all duties upon articles of\nconsumption, may be compared to a fluid, which will, in time, find its\nlevel with the means of paying them. The amount to be contributed by\neach citizen will in a degree be at his own option, and can be regulated\nby an attention to his resources. The rich may be extravagant, the\npoor can be frugal; and private oppression may always be avoided by\na judicious selection of objects proper for such impositions. If\ninequalities should arise in some States from duties on particular\nobjects, these will, in all probability, be counterbalanced by\nproportional inequalities in other States, from the duties on other\nobjects. In the course of time and things, an equilibrium, as far as\nit is attainable in so complicated a subject, will be established\neverywhere. Or, if inequalities should still exist, they would neither\nbe so great in their degree, so uniform in their operation, nor so\nodious in their appearance, as those which would necessarily spring from\nquotas, upon any scale that can possibly be devised.\n\nIt is a signal advantage of taxes on articles of consumption, that they\ncontain in their own nature a security against excess. They prescribe\ntheir own limit; which cannot be exceeded without defeating the end\nproposed, that is, an extension of the revenue. When applied to this\nobject, the saying is as just as it is witty, that, \"in political\narithmetic, two and two do not always make four.\" If duties are too\nhigh, they lessen the consumption; the collection is eluded; and the\nproduct to the treasury is not so great as when they are confined within\nproper and moderate bounds. This forms a complete barrier against any\nmaterial oppression of the citizens by taxes of this class, and is\nitself a natural limitation of the power of imposing them.\n\nImpositions of this kind usually fall under the denomination of indirect\ntaxes, and must for a long time constitute the chief part of the revenue\nraised in this country. Those of the direct kind, which principally\nrelate to land and buildings, may admit of a rule of apportionment.\nEither the value of land, or the number of the people, may serve as a\nstandard. The state of agriculture and the populousness of a country\nhave been considered as nearly connected with each other. And, as a\nrule, for the purpose intended, numbers, in the view of simplicity\nand certainty, are entitled to a preference. In every country it is\na herculean task to obtain a valuation of the land; in a country\nimperfectly settled and progressive in improvement, the difficulties\nare increased almost to impracticability. The expense of an accurate\nvaluation is, in all situations, a formidable objection. In a branch of\ntaxation where no limits to the discretion of the government are to be\nfound in the nature of things, the establishment of a fixed rule, not\nincompatible with the end, may be attended with fewer inconveniences\nthan to leave that discretion altogether at large.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 22\n\nThe Same Subject Continued (Other Defects of the Present Confederation)\n\nFrom the New York Packet. Friday, December 14, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIN ADDITION to the defects already enumerated in the existing federal\nsystem, there are others of not less importance, which concur in\nrendering it altogether unfit for the administration of the affairs of\nthe Union.\n\nThe want of a power to regulate commerce is by all parties allowed to\nbe of the number. The utility of such a power has been anticipated under\nthe first head of our inquiries; and for this reason, as well as from\nthe universal conviction entertained upon the subject, little need be\nadded in this place. It is indeed evident, on the most superficial view,\nthat there is no object, either as it respects the interests of trade or\nfinance, that more strongly demands a federal superintendence. The\nwant of it has already operated as a bar to the formation of beneficial\ntreaties with foreign powers, and has given occasions of dissatisfaction\nbetween the States. No nation acquainted with the nature of our\npolitical association would be unwise enough to enter into stipulations\nwith the United States, by which they conceded privileges of any\nimportance to them, while they were apprised that the engagements on the\npart of the Union might at any moment be violated by its members, and\nwhile they found from experience that they might enjoy every advantage\nthey desired in our markets, without granting us any return but such as\ntheir momentary convenience might suggest. It is not, therefore, to be\nwondered at that Mr. Jenkinson, in ushering into the House of Commons a\nbill for regulating the temporary intercourse between the two countries,\nshould preface its introduction by a declaration that similar provisions\nin former bills had been found to answer every purpose to the commerce\nof Great Britain, and that it would be prudent to persist in the plan\nuntil it should appear whether the American government was likely or not\nto acquire greater consistency.(1)\n\nSeveral States have endeavored, by separate prohibitions, restrictions,\nand exclusions, to influence the conduct of that kingdom in this\nparticular, but the want of concert, arising from the want of a general\nauthority and from clashing and dissimilar views in the State, has\nhitherto frustrated every experiment of the kind, and will continue to\ndo so as long as the same obstacles to a uniformity of measures continue\nto exist.\n\nThe interfering and unneighborly regulations of some States, contrary to\nthe true spirit of the Union, have, in different instances, given just\ncause of umbrage and complaint to others, and it is to be feared that\nexamples of this nature, if not restrained by a national control, would\nbe multiplied and extended till they became not less serious sources\nof animosity and discord than injurious impediments to the intercourse\nbetween the different parts of the Confederacy. \"The commerce of the\nGerman empire(2) is in continual trammels from the multiplicity of the\nduties which the several princes and states exact upon the merchandises\npassing through their territories, by means of which the fine streams\nand navigable rivers with which Germany is so happily watered are\nrendered almost useless.\" Though the genius of the people of this\ncountry might never permit this description to be strictly applicable\nto us, yet we may reasonably expect, from the gradual conflicts of\nState regulations, that the citizens of each would at length come to\nbe considered and treated by the others in no better light than that of\nforeigners and aliens.\n\nThe power of raising armies, by the most obvious construction of the\narticles of the Confederation, is merely a power of making requisitions\nupon the States for quotas of men. This practice in the course of the\nlate war, was found replete with obstructions to a vigorous and to an\neconomical system of defense. It gave birth to a competition between the\nStates which created a kind of auction for men. In order to furnish the\nquotas required of them, they outbid each other till bounties grew to\nan enormous and insupportable size. The hope of a still further\nincrease afforded an inducement to those who were disposed to serve to\nprocrastinate their enlistment, and disinclined them from engaging for\nany considerable periods. Hence, slow and scanty levies of men, in\nthe most critical emergencies of our affairs; short enlistments at an\nunparalleled expense; continual fluctuations in the troops, ruinous\nto their discipline and subjecting the public safety frequently to\nthe perilous crisis of a disbanded army. Hence, also, those oppressive\nexpedients for raising men which were upon several occasions practiced,\nand which nothing but the enthusiasm of liberty would have induced the\npeople to endure.\n\nThis method of raising troops is not more unfriendly to economy and\nvigor than it is to an equal distribution of the burden. The States\nnear the seat of war, influenced by motives of self-preservation, made\nefforts to furnish their quotas, which even exceeded their abilities;\nwhile those at a distance from danger were, for the most part, as remiss\nas the others were diligent, in their exertions. The immediate pressure\nof this inequality was not in this case, as in that of the contributions\nof money, alleviated by the hope of a final liquidation. The States\nwhich did not pay their proportions of money might at least be\ncharged with their deficiencies; but no account could be formed of the\ndeficiencies in the supplies of men. We shall not, however, see much\nreason to regret the want of this hope, when we consider how little\nprospect there is, that the most delinquent States will ever be able to\nmake compensation for their pecuniary failures. The system of quotas and\nrequisitions, whether it be applied to men or money, is, in every view,\na system of imbecility in the Union, and of inequality and injustice\namong the members.\n\nThe right of equal suffrage among the States is another exceptionable\npart of the Confederation. Every idea of proportion and every rule of\nfair representation conspire to condemn a principle, which gives to\nRhode Island an equal weight in the scale of power with Massachusetts,\nor Connecticut, or New York; and to Delaware an equal voice in the\nnational deliberations with Pennsylvania, or Virginia, or North\nCarolina. Its operation contradicts the fundamental maxim of republican\ngovernment, which requires that the sense of the majority should\nprevail. Sophistry may reply, that sovereigns are equal, and that a\nmajority of the votes of the States will be a majority of confederated\nAmerica. But this kind of logical legerdemain will never counteract the\nplain suggestions of justice and common-sense. It may happen that this\nmajority of States is a small minority of the people of America;(3) and\ntwo thirds of the people of America could not long be persuaded, upon\nthe credit of artificial distinctions and syllogistic subtleties, to\nsubmit their interests to the management and disposal of one third. The\nlarger States would after a while revolt from the idea of receiving\nthe law from the smaller. To acquiesce in such a privation of their due\nimportance in the political scale, would be not merely to be insensible\nto the love of power, but even to sacrifice the desire of equality. It\nis neither rational to expect the first, nor just to require the last.\nThe smaller States, considering how peculiarly their safety and welfare\ndepend on union, ought readily to renounce a pretension which, if not\nrelinquished, would prove fatal to its duration.\n\nIt may be objected to this, that not seven but nine States, or\ntwo thirds of the whole number, must consent to the most important\nresolutions; and it may be thence inferred that nine States would\nalways comprehend a majority of the Union. But this does not obviate\nthe impropriety of an equal vote between States of the most unequal\ndimensions and populousness; nor is the inference accurate in point\nof fact; for we can enumerate nine States which contain less than a\nmajority of the people;(4) and it is constitutionally possible that\nthese nine may give the vote. Besides, there are matters of considerable\nmoment determinable by a bare majority; and there are others, concerning\nwhich doubts have been entertained, which, if interpreted in favor of\nthe sufficiency of a vote of seven States, would extend its operation\nto interests of the first magnitude. In addition to this, it is to be\nobserved that there is a probability of an increase in the number of\nStates, and no provision for a proportional augmentation of the ratio of\nvotes.\n\nBut this is not all: what at first sight may seem a remedy, is, in\nreality, a poison. To give a minority a negative upon the majority\n(which is always the case where more than a majority is requisite to\na decision), is, in its tendency, to subject the sense of the greater\nnumber to that of the lesser. Congress, from the nonattendance of a few\nStates, have been frequently in the situation of a Polish diet, where a\nsingle VOTE has been sufficient to put a stop to all their movements.\nA sixtieth part of the Union, which is about the proportion of Delaware\nand Rhode Island, has several times been able to oppose an entire bar to\nits operations. This is one of those refinements which, in practice,\nhas an effect the reverse of what is expected from it in theory. The\nnecessity of unanimity in public bodies, or of something approaching\ntowards it, has been founded upon a supposition that it would contribute\nto security. But its real operation is to embarrass the administration,\nto destroy the energy of the government, and to substitute the pleasure,\ncaprice, or artifices of an insignificant, turbulent, or corrupt junto,\nto the regular deliberations and decisions of a respectable majority.\nIn those emergencies of a nation, in which the goodness or badness, the\nweakness or strength of its government, is of the greatest importance,\nthere is commonly a necessity for action. The public business must, in\nsome way or other, go forward. If a pertinacious minority can control\nthe opinion of a majority, respecting the best mode of conducting it,\nthe majority, in order that something may be done, must conform to the\nviews of the minority; and thus the sense of the smaller number\nwill overrule that of the greater, and give a tone to the national\nproceedings. Hence, tedious delays; continual negotiation and intrigue;\ncontemptible compromises of the public good. And yet, in such a system,\nit is even happy when such compromises can take place: for upon some\noccasions things will not admit of accommodation; and then the measures\nof government must be injuriously suspended, or fatally defeated. It\nis often, by the impracticability of obtaining the concurrence of the\nnecessary number of votes, kept in a state of inaction. Its situation\nmust always savor of weakness, sometimes border upon anarchy.\n\nIt is not difficult to discover, that a principle of this kind gives\ngreater scope to foreign corruption, as well as to domestic faction,\nthan that which permits the sense of the majority to decide; though the\ncontrary of this has been presumed. The mistake has proceeded from\nnot attending with due care to the mischiefs that may be occasioned by\nobstructing the progress of government at certain critical seasons. When\nthe concurrence of a large number is required by the Constitution to\nthe doing of any national act, we are apt to rest satisfied that all is\nsafe, because nothing improper will be likely TO BE DONE, but we forget\nhow much good may be prevented, and how much ill may be produced, by\nthe power of hindering the doing what may be necessary, and of keeping\naffairs in the same unfavorable posture in which they may happen to\nstand at particular periods.\n\nSuppose, for instance, we were engaged in a war, in conjunction with one\nforeign nation, against another. Suppose the necessity of our situation\ndemanded peace, and the interest or ambition of our ally led him to seek\nthe prosecution of the war, with views that might justify us in making\nseparate terms. In such a state of things, this ally of ours would\nevidently find it much easier, by his bribes and intrigues, to tie up\nthe hands of government from making peace, where two thirds of all the\nvotes were requisite to that object, than where a simple majority would\nsuffice. In the first case, he would have to corrupt a smaller number;\nin the last, a greater number. Upon the same principle, it would be\nmuch easier for a foreign power with which we were at war to perplex our\ncouncils and embarrass our exertions. And, in a commercial view, we may\nbe subjected to similar inconveniences. A nation, with which we might\nhave a treaty of commerce, could with much greater facility prevent\nour forming a connection with her competitor in trade, though such a\nconnection should be ever so beneficial to ourselves.\n\nEvils of this description ought not to be regarded as imaginary. One of\nthe weak sides of republics, among their numerous advantages, is that\nthey afford too easy an inlet to foreign corruption. An hereditary\nmonarch, though often disposed to sacrifice his subjects to his\nambition, has so great a personal interest in the government and in the\nexternal glory of the nation, that it is not easy for a foreign power to\ngive him an equivalent for what he would sacrifice by treachery to the\nstate. The world has accordingly been witness to few examples of this\nspecies of royal prostitution, though there have been abundant specimens\nof every other kind.\n\nIn republics, persons elevated from the mass of the community, by the\nsuffrages of their fellow-citizens, to stations of great pre-eminence\nand power, may find compensations for betraying their trust, which,\nto any but minds animated and guided by superior virtue, may appear to\nexceed the proportion of interest they have in the common stock, and to\noverbalance the obligations of duty. Hence it is that history furnishes\nus with so many mortifying examples of the prevalency of foreign\ncorruption in republican governments. How much this contributed to the\nruin of the ancient commonwealths has been already delineated. It is\nwell known that the deputies of the United Provinces have, in various\ninstances, been purchased by the emissaries of the neighboring kingdoms.\nThe Earl of Chesterfield (if my memory serves me right), in a letter to\nhis court, intimates that his success in an important negotiation must\ndepend on his obtaining a major's commission for one of those deputies.\nAnd in Sweden the parties were alternately bought by France and England\nin so barefaced and notorious a manner that it excited universal disgust\nin the nation, and was a principal cause that the most limited monarch\nin Europe, in a single day, without tumult, violence, or opposition,\nbecame one of the most absolute and uncontrolled.\n\nA circumstance which crowns the defects of the Confederation remains yet\nto be mentioned, the want of a judiciary power. Laws are a dead letter\nwithout courts to expound and define their true meaning and operation.\nThe treaties of the United States, to have any force at all, must be\nconsidered as part of the law of the land. Their true import, as far\nas respects individuals, must, like all other laws, be ascertained by\njudicial determinations. To produce uniformity in these determinations,\nthey ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.\nAnd this tribunal ought to be instituted under the same authority which\nforms the treaties themselves. These ingredients are both indispensable.\nIf there is in each State a court of final jurisdiction, there may be\nas many different final determinations on the same point as there are\ncourts. There are endless diversities in the opinions of men. We often\nsee not only different courts but the judges of the came court differing\nfrom each other. To avoid the confusion which would unavoidably\nresult from the contradictory decisions of a number of independent\njudicatories, all nations have found it necessary to establish one\ncourt paramount to the rest, possessing a general superintendence, and\nauthorized to settle and declare in the last resort a uniform rule of\ncivil justice.\n\nThis is the more necessary where the frame of the government is so\ncompounded that the laws of the whole are in danger of being contravened\nby the laws of the parts. In this case, if the particular tribunals\nare invested with a right of ultimate jurisdiction, besides the\ncontradictions to be expected from difference of opinion, there will be\nmuch to fear from the bias of local views and prejudices, and from the\ninterference of local regulations. As often as such an interference was\nto happen, there would be reason to apprehend that the provisions of\nthe particular laws might be preferred to those of the general laws;\nfor nothing is more natural to men in office than to look with peculiar\ndeference towards that authority to which they owe their official\nexistence.\n\nThe treaties of the United States, under the present Constitution, are\nliable to the infractions of thirteen different legislatures, and as\nmany different courts of final jurisdiction, acting under the authority\nof those legislatures. The faith, the reputation, the peace of the\nwhole Union, are thus continually at the mercy of the prejudices, the\npassions, and the interests of every member of which it is composed. Is\nit possible that foreign nations can either respect or confide in such\na government? Is it possible that the people of America will longer\nconsent to trust their honor, their happiness, their safety, on so\nprecarious a foundation?\n\nIn this review of the Confederation, I have confined myself to\nthe exhibition of its most material defects; passing over those\nimperfections in its details by which even a great part of the power\nintended to be conferred upon it has been in a great measure rendered\nabortive. It must be by this time evident to all men of reflection, who\ncan divest themselves of the prepossessions of preconceived opinions,\nthat it is a system so radically vicious and unsound, as to admit not\nof amendment but by an entire change in its leading features and\ncharacters.\n\nThe organization of Congress is itself utterly improper for the exercise\nof those powers which are necessary to be deposited in the Union. A\nsingle assembly may be a proper receptacle of those slender, or rather\nfettered, authorities, which have been heretofore delegated to the\nfederal head; but it would be inconsistent with all the principles of\ngood government, to intrust it with those additional powers which, even\nthe moderate and more rational adversaries of the proposed Constitution\nadmit, ought to reside in the United States. If that plan should not be\nadopted, and if the necessity of the Union should be able to withstand\nthe ambitious aims of those men who may indulge magnificent schemes of\npersonal aggrandizement from its dissolution, the probability would be,\nthat we should run into the project of conferring supplementary powers\nupon Congress, as they are now constituted; and either the machine, from\nthe intrinsic feebleness of its structure, will moulder into pieces,\nin spite of our ill-judged efforts to prop it; or, by successive\naugmentations of its force an energy, as necessity might prompt, we\nshall finally accumulate, in a single body, all the most important\nprerogatives of sovereignty, and thus entail upon our posterity one\nof the most execrable forms of government that human infatuation ever\ncontrived. Thus, we should create in reality that very tyranny which\nthe adversaries of the new Constitution either are, or affect to be,\nsolicitous to avert.\n\nIt has not a little contributed to the infirmities of the existing\nfederal system, that it never had a ratification by the PEOPLE. Resting\non no better foundation than the consent of the several legislatures,\nit has been exposed to frequent and intricate questions concerning the\nvalidity of its powers, and has, in some instances, given birth to\nthe enormous doctrine of a right of legislative repeal. Owing its\nratification to the law of a State, it has been contended that the same\nauthority might repeal the law by which it was ratified. However gross\na heresy it may be to maintain that a PARTY to a COMPACT has a right to\nrevoke that COMPACT, the doctrine itself has had respectable advocates.\nThe possibility of a question of this nature proves the necessity of\nlaying the foundations of our national government deeper than in the\nmere sanction of delegated authority. The fabric of American empire\nought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The\nstreams of national power ought to flow immediately from that pure,\noriginal fountain of all legitimate authority.\n\nPUBLIUS\n\n1. This, as nearly as I can recollect, was the sense of his speech on\nintroducing the last bill.\n\n2. Encyclopedia, article \"Empire.\"\n\n3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South\nCarolina, and Maryland are a majority of the whole number of the States,\nbut they do not contain one third of the people.\n\n4. Add New York and Connecticut to the foregoing seven, and they will be\nless than a majority.\n\n\n\n\nFEDERALIST No. 23\n\nThe Necessity of a Government as Energetic as the One Proposed to the\nPreservation of the Union\n\nFrom the New York Packet. Tuesday, December 18, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE necessity of a Constitution, at least equally energetic with the\none proposed, to the preservation of the Union, is the point at the\nexamination of which we are now arrived.\n\nThis inquiry will naturally divide itself into three branches--the\nobjects to be provided for by the federal government, the quantity of\npower necessary to the accomplishment of those objects, the persons upon\nwhom that power ought to operate. Its distribution and organization will\nmore properly claim our attention under the succeeding head.\n\nThe principal purposes to be answered by union are these--the common\ndefense of the members; the preservation of the public peace as well\nagainst internal convulsions as external attacks; the regulation of\ncommerce with other nations and between the States; the superintendence\nof our intercourse, political and commercial, with foreign countries.\n\nThe authorities essential to the common defense are these: to raise\narmies; to build and equip fleets; to prescribe rules for the government\nof both; to direct their operations; to provide for their support. These\npowers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO\nFORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE\nCORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO\nSATISFY THEM. The circumstances that endanger the safety of nations are\ninfinite, and for this reason no constitutional shackles can wisely be\nimposed on the power to which the care of it is committed. This power\nought to be coextensive with all the possible combinations of such\ncircumstances; and ought to be under the direction of the same councils\nwhich are appointed to preside over the common defense.\n\nThis is one of those truths which, to a correct and unprejudiced mind,\ncarries its own evidence along with it; and may be obscured, but cannot\nbe made plainer by argument or reasoning. It rests upon axioms as simple\nas they are universal; the MEANS ought to be proportioned to the END;\nthe persons, from whose agency the attainment of any END is expected,\nought to possess the MEANS by which it is to be attained.\n\nWhether there ought to be a federal government intrusted with the care\nof the common defense, is a question in the first instance, open for\ndiscussion; but the moment it is decided in the affirmative, it will\nfollow, that that government ought to be clothed with all the powers\nrequisite to complete execution of its trust. And unless it can be shown\nthat the circumstances which may affect the public safety are reducible\nwithin certain determinate limits; unless the contrary of this position\ncan be fairly and rationally disputed, it must be admitted, as a\nnecessary consequence, that there can be no limitation of that authority\nwhich is to provide for the defense and protection of the community, in\nany matter essential to its efficacy that is, in any matter essential to\nthe FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.\n\nDefective as the present Confederation has been proved to be, this\nprinciple appears to have been fully recognized by the framers of it;\nthough they have not made proper or adequate provision for its exercise.\nCongress have an unlimited discretion to make requisitions of men and\nmoney; to govern the army and navy; to direct their operations. As their\nrequisitions are made constitutionally binding upon the States, who\nare in fact under the most solemn obligations to furnish the supplies\nrequired of them, the intention evidently was that the United States\nshould command whatever resources were by them judged requisite to the\n\"common defense and general welfare.\" It was presumed that a sense of\ntheir true interests, and a regard to the dictates of good faith, would\nbe found sufficient pledges for the punctual performance of the duty of\nthe members to the federal head.\n\nThe experiment has, however, demonstrated that this expectation was\nill-founded and illusory; and the observations, made under the last\nhead, will, I imagine, have sufficed to convince the impartial and\ndiscerning, that there is an absolute necessity for an entire change\nin the first principles of the system; that if we are in earnest about\ngiving the Union energy and duration, we must abandon the vain project\nof legislating upon the States in their collective capacities; we must\nextend the laws of the federal government to the individual citizens\nof America; we must discard the fallacious scheme of quotas and\nrequisitions, as equally impracticable and unjust. The result from all\nthis is that the Union ought to be invested with full power to levy\ntroops; to build and equip fleets; and to raise the revenues which will\nbe required for the formation and support of an army and navy, in the\ncustomary and ordinary modes practiced in other governments.\n\nIf the circumstances of our country are such as to demand a compound\ninstead of a simple, a confederate instead of a sole, government, the\nessential point which will remain to be adjusted will be to discriminate\nthe OBJECTS, as far as it can be done, which shall appertain to the\ndifferent provinces or departments of power; allowing to each the most\nample authority for fulfilling the objects committed to its charge.\nShall the Union be constituted the guardian of the common safety? Are\nfleets and armies and revenues necessary to this purpose? The government\nof the Union must be empowered to pass all laws, and to make all\nregulations which have relation to them. The same must be the case in\nrespect to commerce, and to every other matter to which its jurisdiction\nis permitted to extend. Is the administration of justice between\nthe citizens of the same State the proper department of the local\ngovernments? These must possess all the authorities which are connected\nwith this object, and with every other that may be allotted to their\nparticular cognizance and direction. Not to confer in each case a degree\nof power commensurate to the end, would be to violate the most obvious\nrules of prudence and propriety, and improvidently to trust the great\ninterests of the nation to hands which are disabled from managing them\nwith vigor and success.\n\nWho is likely to make suitable provisions for the public defense, as\nthat body to which the guardianship of the public safety is confided;\nwhich, as the centre of information, will best understand the extent\nand urgency of the dangers that threaten; as the representative of the\nWHOLE, will feel itself most deeply interested in the preservation of\nevery part; which, from the responsibility implied in the duty assigned\nto it, will be most sensibly impressed with the necessity of proper\nexertions; and which, by the extension of its authority throughout the\nStates, can alone establish uniformity and concert in the plans and\nmeasures by which the common safety is to be secured? Is there not a\nmanifest inconsistency in devolving upon the federal government the\ncare of the general defense, and leaving in the State governments the\nEFFECTIVE powers by which it is to be provided for? Is not a want of\nco-operation the infallible consequence of such a system? And will not\nweakness, disorder, an undue distribution of the burdens and calamities\nof war, an unnecessary and intolerable increase of expense, be its\nnatural and inevitable concomitants? Have we not had unequivocal\nexperience of its effects in the course of the revolution which we have\njust accomplished?\n\nEvery view we may take of the subject, as candid inquirers after truth,\nwill serve to convince us, that it is both unwise and dangerous to deny\nthe federal government an unconfined authority, as to all those objects\nwhich are intrusted to its management. It will indeed deserve the most\nvigilant and careful attention of the people, to see that it be modeled\nin such a manner as to admit of its being safely vested with the\nrequisite powers. If any plan which has been, or may be, offered to our\nconsideration, should not, upon a dispassionate inspection, be found\nto answer this description, it ought to be rejected. A government, the\nconstitution of which renders it unfit to be trusted with all the powers\nwhich a free people ought to delegate to any government, would be an\nunsafe and improper depositary of the NATIONAL INTERESTS. Wherever\nTHESE can with propriety be confided, the coincident powers may safely\naccompany them. This is the true result of all just reasoning upon the\nsubject. And the adversaries of the plan promulgated by the convention\nought to have confined themselves to showing, that the internal\nstructure of the proposed government was such as to render it unworthy\nof the confidence of the people. They ought not to have wandered into\ninflammatory declamations and unmeaning cavils about the extent of the\npowers. The POWERS are not too extensive for the OBJECTS of federal\nadministration, or, in other words, for the management of our NATIONAL\nINTERESTS; nor can any satisfactory argument be framed to show that\nthey are chargeable with such an excess. If it be true, as has been\ninsinuated by some of the writers on the other side, that the difficulty\narises from the nature of the thing, and that the extent of the country\nwill not permit us to form a government in which such ample powers can\nsafely be reposed, it would prove that we ought to contract our views,\nand resort to the expedient of separate confederacies, which will move\nwithin more practicable spheres. For the absurdity must continually\nstare us in the face of confiding to a government the direction of the\nmost essential national interests, without daring to trust it to the\nauthorities which are indispensable to their proper and efficient\nmanagement. Let us not attempt to reconcile contradictions, but firmly\nembrace a rational alternative.\n\nI trust, however, that the impracticability of one general system cannot\nbe shown. I am greatly mistaken, if any thing of weight has yet been\nadvanced of this tendency; and I flatter myself, that the observations\nwhich have been made in the course of these papers have served to place\nthe reverse of that position in as clear a light as any matter still\nin the womb of time and experience can be susceptible of. This, at all\nevents, must be evident, that the very difficulty itself, drawn from\nthe extent of the country, is the strongest argument in favor of an\nenergetic government; for any other can certainly never preserve the\nUnion of so large an empire. If we embrace the tenets of those who\noppose the adoption of the proposed Constitution, as the standard of\nour political creed, we cannot fail to verify the gloomy doctrines\nwhich predict the impracticability of a national system pervading entire\nlimits of the present Confederacy.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 24\n\nThe Powers Necessary to the Common Defense Further Considered\n\nFor the Independent Journal. Wednesday, December 19, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTO THE powers proposed to be conferred upon the federal government, in\nrespect to the creation and direction of the national forces, I have\nmet with but one specific objection, which, if I understand it right, is\nthis, that proper provision has not been made against the existence\nof standing armies in time of peace; an objection which, I shall now\nendeavor to show, rests on weak and unsubstantial foundations.\n\nIt has indeed been brought forward in the most vague and general form,\nsupported only by bold assertions, without the appearance of argument;\nwithout even the sanction of theoretical opinions; in contradiction to\nthe practice of other free nations, and to the general sense of America,\nas expressed in most of the existing constitutions. The proprietary of\nthis remark will appear, the moment it is recollected that the objection\nunder consideration turns upon a supposed necessity of restraining\nthe LEGISLATIVE authority of the nation, in the article of military\nestablishments; a principle unheard of, except in one or two of our\nState constitutions, and rejected in all the rest.\n\nA stranger to our politics, who was to read our newspapers at the\npresent juncture, without having previously inspected the plan reported\nby the convention, would be naturally led to one of two conclusions:\neither that it contained a positive injunction, that standing armies\nshould be kept up in time of peace; or that it vested in the EXECUTIVE\nthe whole power of levying troops, without subjecting his discretion, in\nany shape, to the control of the legislature.\n\nIf he came afterwards to peruse the plan itself, he would be surprised\nto discover, that neither the one nor the other was the case; that the\nwhole power of raising armies was lodged in the LEGISLATURE, not in the\nEXECUTIVE; that this legislature was to be a popular body, consisting of\nthe representatives of the people periodically elected; and that instead\nof the provision he had supposed in favor of standing armies, there was\nto be found, in respect to this object, an important qualification\neven of the legislative discretion, in that clause which forbids the\nappropriation of money for the support of an army for any longer period\nthan two years a precaution which, upon a nearer view of it, will appear\nto be a great and real security against the keeping up of troops without\nevident necessity.\n\nDisappointed in his first surmise, the person I have supposed would be\napt to pursue his conjectures a little further. He would naturally\nsay to himself, it is impossible that all this vehement and pathetic\ndeclamation can be without some colorable pretext. It must needs be that\nthis people, so jealous of their liberties, have, in all the preceding\nmodels of the constitutions which they have established, inserted the\nmost precise and rigid precautions on this point, the omission of which,\nin the new plan, has given birth to all this apprehension and clamor.\n\nIf, under this impression, he proceeded to pass in review the several\nState constitutions, how great would be his disappointment to find that\nTWO ONLY of them(1) contained an interdiction of standing armies in time\nof peace; that the other eleven had either observed a profound silence\non the subject, or had in express terms admitted the right of the\nLegislature to authorize their existence.\n\nStill, however he would be persuaded that there must be some plausible\nfoundation for the cry raised on this head. He would never be able to\nimagine, while any source of information remained unexplored, that it\nwas nothing more than an experiment upon the public credulity, dictated\neither by a deliberate intention to deceive, or by the overflowings of\na zeal too intemperate to be ingenuous. It would probably occur to him,\nthat he would be likely to find the precautions he was in search of\nin the primitive compact between the States. Here, at length, he would\nexpect to meet with a solution of the enigma. No doubt, he would observe\nto himself, the existing Confederation must contain the most explicit\nprovisions against military establishments in time of peace; and a\ndeparture from this model, in a favorite point, has occasioned the\ndiscontent which appears to influence these political champions.\n\nIf he should now apply himself to a careful and critical survey of the\narticles of Confederation, his astonishment would not only be increased,\nbut would acquire a mixture of indignation, at the unexpected discovery,\nthat these articles, instead of containing the prohibition he looked\nfor, and though they had, with jealous circumspection, restricted the\nauthority of the State legislatures in this particular, had not imposed\na single restraint on that of the United States. If he happened to be\na man of quick sensibility, or ardent temper, he could now no longer\nrefrain from regarding these clamors as the dishonest artifices of a\nsinister and unprincipled opposition to a plan which ought at least to\nreceive a fair and candid examination from all sincere lovers of their\ncountry! How else, he would say, could the authors of them have been\ntempted to vent such loud censures upon that plan, about a point in\nwhich it seems to have conformed itself to the general sense of America\nas declared in its different forms of government, and in which it has\neven superadded a new and powerful guard unknown to any of them? If,\non the contrary, he happened to be a man of calm and dispassionate\nfeelings, he would indulge a sigh for the frailty of human nature,\nand would lament, that in a matter so interesting to the happiness\nof millions, the true merits of the question should be perplexed\nand entangled by expedients so unfriendly to an impartial and right\ndetermination. Even such a man could hardly forbear remarking, that\na conduct of this kind has too much the appearance of an intention to\nmislead the people by alarming their passions, rather than to convince\nthem by arguments addressed to their understandings.\n\nBut however little this objection may be countenanced, even by\nprecedents among ourselves, it may be satisfactory to take a nearer view\nof its intrinsic merits. From a close examination it will appear that\nrestraints upon the discretion of the legislature in respect to military\nestablishments in time of peace, would be improper to be imposed, and\nif imposed, from the necessities of society, would be unlikely to be\nobserved.\n\nThough a wide ocean separates the United States from Europe, yet there\nare various considerations that warn us against an excess of confidence\nor security. On one side of us, and stretching far into our rear, are\ngrowing settlements subject to the dominion of Britain. On the other\nside, and extending to meet the British settlements, are colonies and\nestablishments subject to the dominion of Spain. This situation and the\nvicinity of the West India Islands, belonging to these two powers create\nbetween them, in respect to their American possessions and in relation\nto us, a common interest. The savage tribes on our Western frontier\nought to be regarded as our natural enemies, their natural allies,\nbecause they have most to fear from us, and most to hope from them.\nThe improvements in the art of navigation have, as to the facility of\ncommunication, rendered distant nations, in a great measure, neighbors.\nBritain and Spain are among the principal maritime powers of Europe. A\nfuture concert of views between these nations ought not to be regarded\nas improbable. The increasing remoteness of consanguinity is every day\ndiminishing the force of the family compact between France and Spain.\nAnd politicians have ever with great reason considered the ties of\nblood as feeble and precarious links of political connection.\nThese circumstances combined, admonish us not to be too sanguine in\nconsidering ourselves as entirely out of the reach of danger.\n\nPrevious to the Revolution, and ever since the peace, there has been a\nconstant necessity for keeping small garrisons on our Western frontier.\nNo person can doubt that these will continue to be indispensable, if\nit should only be against the ravages and depredations of the Indians.\nThese garrisons must either be furnished by occasional detachments from\nthe militia, or by permanent corps in the pay of the government. The\nfirst is impracticable; and if practicable, would be pernicious. The\nmilitia would not long, if at all, submit to be dragged from their\noccupations and families to perform that most disagreeable duty in times\nof profound peace. And if they could be prevailed upon or compelled to\ndo it, the increased expense of a frequent rotation of service, and\nthe loss of labor and disconcertion of the industrious pursuits of\nindividuals, would form conclusive objections to the scheme. It would\nbe as burdensome and injurious to the public as ruinous to private\ncitizens. The latter resource of permanent corps in the pay of the\ngovernment amounts to a standing army in time of peace; a small one,\nindeed, but not the less real for being small. Here is a simple view of\nthe subject, that shows us at once the impropriety of a constitutional\ninterdiction of such establishments, and the necessity of leaving the\nmatter to the discretion and prudence of the legislature.\n\nIn proportion to our increase in strength, it is probable, nay, it may\nbe said certain, that Britain and Spain would augment their military\nestablishments in our neighborhood. If we should not be willing to be\nexposed, in a naked and defenseless condition, to their insults and\nencroachments, we should find it expedient to increase our frontier\ngarrisons in some ratio to the force by which our Western settlements\nmight be annoyed. There are, and will be, particular posts, the\npossession of which will include the command of large districts of\nterritory, and facilitate future invasions of the remainder. It may be\nadded that some of those posts will be keys to the trade with the Indian\nnations. Can any man think it would be wise to leave such posts in\na situation to be at any instant seized by one or the other of two\nneighboring and formidable powers? To act this part would be to desert\nall the usual maxims of prudence and policy.\n\nIf we mean to be a commercial people, or even to be secure on our\nAtlantic side, we must endeavor, as soon as possible, to have a navy. To\nthis purpose there must be dock-yards and arsenals; and for the defense\nof these, fortifications, and probably garrisons. When a nation has\nbecome so powerful by sea that it can protect its dock-yards by its\nfleets, this supersedes the necessity of garrisons for that purpose;\nbut where naval establishments are in their infancy, moderate garrisons\nwill, in all likelihood, be found an indispensable security against\ndescents for the destruction of the arsenals and dock-yards, and\nsometimes of the fleet itself.\n\nPUBLIUS\n\n1 This statement of the matter is taken from the printed collection of\nState constitutions. Pennsylvania and North Carolina are the two which\ncontain the interdiction in these words: \"As standing armies in time of\npeace are dangerous to liberty, THEY OUGHT NOT to be kept up.\" This\nis, in truth, rather a CAUTION than a PROHIBITION. New Hampshire,\nMassachusetts, Delaware, and Maryland have, in each of their bils of\nrights, a clause to this effect: \"Standing armies are dangerous to\nliberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF\nTHE LEGISLATURE\"; which is a formal admission of the authority of the\nLegislature. New York has no bills of rights, and her constitution says\nnot a word about the matter. No bills of rights appear annexed to the\nconstitutions of the other States, except the foregoing, and their\nconstitutions are equally silent. I am told, however that one or two\nStates have bills of rights which do not appear in this collection; but\nthat those also recognize the right of the legislative authority in this\nrespect.\n\n\n\n\nFEDERALIST No. 25\n\nThe Same Subject Continued (The Powers Necessary to the Common Defense\nFurther Considered)\n\nFrom the New York Packet. Friday, December 21, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIT MAY perhaps be urged that the objects enumerated in the preceding\nnumber ought to be provided for by the State governments, under the\ndirection of the Union. But this would be, in reality, an inversion\nof the primary principle of our political association, as it would in\npractice transfer the care of the common defense from the federal\nhead to the individual members: a project oppressive to some States,\ndangerous to all, and baneful to the Confederacy.\n\nThe territories of Britain, Spain, and of the Indian nations in our\nneighborhood do not border on particular States, but encircle the Union\nfrom Maine to Georgia. The danger, though in different degrees, is\ntherefore common. And the means of guarding against it ought, in like\nmanner, to be the objects of common councils and of a common treasury.\nIt happens that some States, from local situation, are more directly\nexposed. New York is of this class. Upon the plan of separate\nprovisions, New York would have to sustain the whole weight of the\nestablishments requisite to her immediate safety, and to the mediate or\nultimate protection of her neighbors. This would neither be equitable as\nit respected New York nor safe as it respected the other States. Various\ninconveniences would attend such a system. The States, to whose lot it\nmight fall to support the necessary establishments, would be as little\nable as willing, for a considerable time to come, to bear the burden of\ncompetent provisions. The security of all would thus be subjected to\nthe parsimony, improvidence, or inability of a part. If the resources of\nsuch part becoming more abundant and extensive, its provisions should be\nproportionally enlarged, the other States would quickly take the alarm\nat seeing the whole military force of the Union in the hands of two or\nthree of its members, and those probably amongst the most powerful. They\nwould each choose to have some counterpoise, and pretenses could easily\nbe contrived. In this situation, military establishments, nourished by\nmutual jealousy, would be apt to swell beyond their natural or proper\nsize; and being at the separate disposal of the members, they would be\nengines for the abridgment or demolition of the national authority.\n\nReasons have been already given to induce a supposition that the State\ngovernments will too naturally be prone to a rivalship with that of the\nUnion, the foundation of which will be the love of power; and that in\nany contest between the federal head and one of its members the people\nwill be most apt to unite with their local government. If, in addition\nto this immense advantage, the ambition of the members should be\nstimulated by the separate and independent possession of military\nforces, it would afford too strong a temptation and too great a\nfacility to them to make enterprises upon, and finally to subvert, the\nconstitutional authority of the Union. On the other hand, the liberty of\nthe people would be less safe in this state of things than in that which\nleft the national forces in the hands of the national government. As\nfar as an army may be considered as a dangerous weapon of power, it\nhad better be in those hands of which the people are most likely to be\njealous than in those of which they are least likely to be jealous.\nFor it is a truth, which the experience of ages has attested, that the\npeople are always most in danger when the means of injuring their\nrights are in the possession of those of whom they entertain the least\nsuspicion.\n\nThe framers of the existing Confederation, fully aware of the danger to\nthe Union from the separate possession of military forces by the States,\nhave, in express terms, prohibited them from having either ships or\ntroops, unless with the consent of Congress. The truth is, that the\nexistence of a federal government and military establishments under\nState authority are not less at variance with each other than a\ndue supply of the federal treasury and the system of quotas and\nrequisitions.\n\nThere are other lights besides those already taken notice of, in\nwhich the impropriety of restraints on the discretion of the national\nlegislature will be equally manifest. The design of the objection, which\nhas been mentioned, is to preclude standing armies in time of\npeace, though we have never been informed how far it is designed the\nprohibition should extend; whether to raising armies as well as to\nKEEPING THEM UP in a season of tranquillity or not. If it be confined\nto the latter it will have no precise signification, and it will be\nineffectual for the purpose intended. When armies are once raised what\nshall be denominated \"keeping them up,\" contrary to the sense of the\nConstitution? What time shall be requisite to ascertain the violation?\nShall it be a week, a month, a year? Or shall we say they may be\ncontinued as long as the danger which occasioned their being raised\ncontinues? This would be to admit that they might be kept up IN TIME OF\nPEACE, against threatening or impending danger, which would be at once\nto deviate from the literal meaning of the prohibition, and to\nintroduce an extensive latitude of construction. Who shall judge of the\ncontinuance of the danger? This must undoubtedly be submitted to the\nnational government, and the matter would then be brought to this issue,\nthat the national government, to provide against apprehended danger,\nmight in the first instance raise troops, and might afterwards keep them\non foot as long as they supposed the peace or safety of the community\nwas in any degree of jeopardy. It is easy to perceive that a discretion\nso latitudinary as this would afford ample room for eluding the force of\nthe provision.\n\nThe supposed utility of a provision of this kind can only be founded\non the supposed probability, or at least possibility, of a combination\nbetween the executive and the legislative, in some scheme of usurpation.\nShould this at any time happen, how easy would it be to fabricate\npretenses of approaching danger! Indian hostilities, instigated by Spain\nor Britain, would always be at hand. Provocations to produce the desired\nappearances might even be given to some foreign power, and appeased\nagain by timely concessions. If we can reasonably presume such a\ncombination to have been formed, and that the enterprise is warranted\nby a sufficient prospect of success, the army, when once raised, from\nwhatever cause, or on whatever pretext, may be applied to the execution\nof the project.\n\nIf, to obviate this consequence, it should be resolved to extend the\nprohibition to the RAISING of armies in time of peace, the United States\nwould then exhibit the most extraordinary spectacle which the world has\nyet seen, that of a nation incapacitated by its Constitution to prepare\nfor defense, before it was actually invaded. As the ceremony of a formal\ndenunciation of war has of late fallen into disuse, the presence of an\nenemy within our territories must be waited for, as the legal warrant\nto the government to begin its levies of men for the protection of the\nState. We must receive the blow, before we could even prepare to return\nit. All that kind of policy by which nations anticipate distant danger,\nand meet the gathering storm, must be abstained from, as contrary to\nthe genuine maxims of a free government. We must expose our property\nand liberty to the mercy of foreign invaders, and invite them by our\nweakness to seize the naked and defenseless prey, because we are\nafraid that rulers, created by our choice, dependent on our will,\nmight endanger that liberty, by an abuse of the means necessary to its\npreservation.\n\nHere I expect we shall be told that the militia of the country is\nits natural bulwark, and would be at all times equal to the national\ndefense. This doctrine, in substance, had like to have lost us our\nindependence. It cost millions to the United States that might have been\nsaved. The facts which, from our own experience, forbid a reliance\nof this kind, are too recent to permit us to be the dupes of such\na suggestion. The steady operations of war against a regular and\ndisciplined army can only be successfully conducted by a force of the\nsame kind. Considerations of economy, not less than of stability and\nvigor, confirm this position. The American militia, in the course of the\nlate war, have, by their valor on numerous occasions, erected eternal\nmonuments to their fame; but the bravest of them feel and know that\nthe liberty of their country could not have been established by their\nefforts alone, however great and valuable they were. War, like most\nother things, is a science to be acquired and perfected by diligence, by\nperseverance, by time, and by practice.\n\nAll violent policy, as it is contrary to the natural and experienced\ncourse of human affairs, defeats itself. Pennsylvania, at this instant,\naffords an example of the truth of this remark. The Bill of Rights of\nthat State declares that standing armies are dangerous to liberty, and\nought not to be kept up in time of peace. Pennsylvania, nevertheless, in\na time of profound peace, from the existence of partial disorders in one\nor two of her counties, has resolved to raise a body of troops; and in\nall probability will keep them up as long as there is any appearance\nof danger to the public peace. The conduct of Massachusetts affords\na lesson on the same subject, though on different ground. That State\n(without waiting for the sanction of Congress, as the articles of the\nConfederation require) was compelled to raise troops to quell a domestic\ninsurrection, and still keeps a corps in pay to prevent a revival of the\nspirit of revolt. The particular constitution of Massachusetts opposed\nno obstacle to the measure; but the instance is still of use to instruct\nus that cases are likely to occur under our government, as well as under\nthose of other nations, which will sometimes render a military force in\ntime of peace essential to the security of the society, and that it\nis therefore improper in this respect to control the legislative\ndiscretion. It also teaches us, in its application to the United States,\nhow little the rights of a feeble government are likely to be respected,\neven by its own constituents. And it teaches us, in addition to the\nrest, how unequal parchment provisions are to a struggle with public\nnecessity.\n\nIt was a fundamental maxim of the Lacedaemonian commonwealth, that the\npost of admiral should not be conferred twice on the same person. The\nPeloponnesian confederates, having suffered a severe defeat at sea from\nthe Athenians, demanded Lysander, who had before served with success in\nthat capacity, to command the combined fleets. The Lacedaemonians, to\ngratify their allies, and yet preserve the semblance of an adherence\nto their ancient institutions, had recourse to the flimsy subterfuge\nof investing Lysander with the real power of admiral, under the nominal\ntitle of vice-admiral. This instance is selected from among a\nmultitude that might be cited to confirm the truth already advanced\nand illustrated by domestic examples; which is, that nations pay little\nregard to rules and maxims calculated in their very nature to run\ncounter to the necessities of society. Wise politicians will be\ncautious about fettering the government with restrictions that cannot be\nobserved, because they know that every breach of the fundamental laws,\nthough dictated by necessity, impairs that sacred reverence which ought\nto be maintained in the breast of rulers towards the constitution of a\ncountry, and forms a precedent for other breaches where the same plea of\nnecessity does not exist at all, or is less urgent and palpable.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 26\n\nThe Idea of Restraining the Legislative Authority in Regard to the\nCommon Defense Considered.\n\nFor the Independent Journal. Saturday, December 22, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIT WAS a thing hardly to be expected that in a popular revolution the\nminds of men should stop at that happy mean which marks the salutary\nboundary between POWER and PRIVILEGE, and combines the energy of\ngovernment with the security of private rights. A failure in this\ndelicate and important point is the great source of the inconveniences\nwe experience, and if we are not cautious to avoid a repetition of the\nerror, in our future attempts to rectify and ameliorate our system, we\nmay travel from one chimerical project to another; we may try change\nafter change; but we shall never be likely to make any material change\nfor the better.\n\nThe idea of restraining the legislative authority, in the means of\nproviding for the national defense, is one of those refinements which\nowe their origin to a zeal for liberty more ardent than enlightened.\nWe have seen, however, that it has not had thus far an extensive\nprevalency; that even in this country, where it made its first\nappearance, Pennsylvania and North Carolina are the only two States by\nwhich it has been in any degree patronized; and that all the others have\nrefused to give it the least countenance; wisely judging that confidence\nmust be placed somewhere; that the necessity of doing it, is implied in\nthe very act of delegating power; and that it is better to hazard the\nabuse of that confidence than to embarrass the government and endanger\nthe public safety by impolitic restrictions on the legislative\nauthority. The opponents of the proposed Constitution combat, in this\nrespect, the general decision of America; and instead of being taught\nby experience the propriety of correcting any extremes into which we\nmay have heretofore run, they appear disposed to conduct us into others\nstill more dangerous, and more extravagant. As if the tone of government\nhad been found too high, or too rigid, the doctrines they teach are\ncalculated to induce us to depress or to relax it, by expedients\nwhich, upon other occasions, have been condemned or forborne. It may\nbe affirmed without the imputation of invective, that if the principles\nthey inculcate, on various points, could so far obtain as to become the\npopular creed, they would utterly unfit the people of this country for\nany species of government whatever. But a danger of this kind is not to\nbe apprehended. The citizens of America have too much discernment to\nbe argued into anarchy. And I am much mistaken, if experience has not\nwrought a deep and solemn conviction in the public mind, that greater\nenergy of government is essential to the welfare and prosperity of the\ncommunity.\n\nIt may not be amiss in this place concisely to remark the origin\nand progress of the idea, which aims at the exclusion of military\nestablishments in time of peace. Though in speculative minds it\nmay arise from a contemplation of the nature and tendency of such\ninstitutions, fortified by the events that have happened in other ages\nand countries, yet as a national sentiment, it must be traced to\nthose habits of thinking which we derive from the nation from whom the\ninhabitants of these States have in general sprung.\n\nIn England, for a long time after the Norman Conquest, the authority of\nthe monarch was almost unlimited. Inroads were gradually made upon the\nprerogative, in favor of liberty, first by the barons, and afterwards\nby the people, till the greatest part of its most formidable pretensions\nbecame extinct. But it was not till the revolution in 1688, which\nelevated the Prince of Orange to the throne of Great Britain, that\nEnglish liberty was completely triumphant. As incident to the undefined\npower of making war, an acknowledged prerogative of the crown, Charles\nII. had, by his own authority, kept on foot in time of peace a body of\n5,000 regular troops. And this number James II. increased to 30,000;\nwho were paid out of his civil list. At the revolution, to abolish the\nexercise of so dangerous an authority, it became an article of the Bill\nof Rights then framed, that \"the raising or keeping a standing army\nwithin the kingdom in time of peace, UNLESS WITH THE CONSENT OF\nPARLIAMENT, was against law.\"\n\nIn that kingdom, when the pulse of liberty was at its highest pitch, no\nsecurity against the danger of standing armies was thought requisite,\nbeyond a prohibition of their being raised or kept up by the mere\nauthority of the executive magistrate. The patriots, who effected that\nmemorable revolution, were too temperate, too wellinformed, to think\nof any restraint on the legislative discretion. They were aware that a\ncertain number of troops for guards and garrisons were indispensable;\nthat no precise bounds could be set to the national exigencies; that a\npower equal to every possible contingency must exist somewhere in the\ngovernment: and that when they referred the exercise of that power to\nthe judgment of the legislature, they had arrived at the ultimate point\nof precaution which was reconcilable with the safety of the community.\n\nFrom the same source, the people of America may be said to have derived\nan hereditary impression of danger to liberty, from standing armies in\ntime of peace. The circumstances of a revolution quickened the public\nsensibility on every point connected with the security of popular\nrights, and in some instances raise the warmth of our zeal beyond the\ndegree which consisted with the due temperature of the body politic.\nThe attempts of two of the States to restrict the authority of the\nlegislature in the article of military establishments, are of the number\nof these instances. The principles which had taught us to be jealous\nof the power of an hereditary monarch were by an injudicious excess\nextended to the representatives of the people in their popular\nassemblies. Even in some of the States, where this error was not\nadopted, we find unnecessary declarations that standing armies ought not\nto be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE.\nI call them unnecessary, because the reason which had introduced a\nsimilar provision into the English Bill of Rights is not applicable\nto any of the State constitutions. The power of raising armies at all,\nunder those constitutions, can by no construction be deemed to\nreside anywhere else, than in the legislatures themselves; and it was\nsuperfluous, if not absurd, to declare that a matter should not be done\nwithout the consent of a body, which alone had the power of doing it.\nAccordingly, in some of these constitutions, and among others, in that\nof this State of New York, which has been justly celebrated, both\nin Europe and America, as one of the best of the forms of government\nestablished in this country, there is a total silence upon the subject.\n\nIt is remarkable, that even in the two States which seem to have\nmeditated an interdiction of military establishments in time of\npeace, the mode of expression made use of is rather cautionary than\nprohibitory. It is not said, that standing armies SHALL NOT BE kept up,\nbut that they OUGHT NOT to be kept up, in time of peace. This ambiguity\nof terms appears to have been the result of a conflict between jealousy\nand conviction; between the desire of excluding such establishments\nat all events, and the persuasion that an absolute exclusion would be\nunwise and unsafe.\n\nCan it be doubted that such a provision, whenever the situation of\npublic affairs was understood to require a departure from it, would be\ninterpreted by the legislature into a mere admonition, and would be made\nto yield to the necessities or supposed necessities of the State? Let\nthe fact already mentioned, with respect to Pennsylvania, decide. What\nthen (it may be asked) is the use of such a provision, if it cease to\noperate the moment there is an inclination to disregard it?\n\nLet us examine whether there be any comparison, in point of efficacy,\nbetween the provision alluded to and that which is contained in the new\nConstitution, for restraining the appropriations of money for military\npurposes to the period of two years. The former, by aiming at too much,\nis calculated to effect nothing; the latter, by steering clear of an\nimprudent extreme, and by being perfectly compatible with a proper\nprovision for the exigencies of the nation, will have a salutary and\npowerful operation.\n\nThe legislature of the United States will be OBLIGED, by this provision,\nonce at least in every two years, to deliberate upon the propriety of\nkeeping a military force on foot; to come to a new resolution on the\npoint; and to declare their sense of the matter, by a formal vote in\nthe face of their constituents. They are not AT LIBERTY to vest in the\nexecutive department permanent funds for the support of an army, if they\nwere even incautious enough to be willing to repose in it so improper\na confidence. As the spirit of party, in different degrees, must be\nexpected to infect all political bodies, there will be, no doubt,\npersons in the national legislature willing enough to arraign the\nmeasures and criminate the views of the majority. The provision for\nthe support of a military force will always be a favorable topic\nfor declamation. As often as the question comes forward, the public\nattention will be roused and attracted to the subject, by the party in\nopposition; and if the majority should be really disposed to exceed the\nproper limits, the community will be warned of the danger, and will have\nan opportunity of taking measures to guard against it. Independent of\nparties in the national legislature itself, as often as the period of\ndiscussion arrived, the State legislatures, who will always be not\nonly vigilant but suspicious and jealous guardians of the rights of\nthe citizens against encroachments from the federal government, will\nconstantly have their attention awake to the conduct of the national\nrulers, and will be ready enough, if any thing improper appears, to\nsound the alarm to the people, and not only to be the VOICE, but, if\nnecessary, the ARM of their discontent.\n\nSchemes to subvert the liberties of a great community REQUIRE TIME to\nmature them for execution. An army, so large as seriously to menace\nthose liberties, could only be formed by progressive augmentations;\nwhich would suppose, not merely a temporary combination between the\nlegislature and executive, but a continued conspiracy for a series of\ntime. Is it probable that such a combination would exist at all? Is it\nprobable that it would be persevered in, and transmitted along through\nall the successive variations in a representative body, which biennial\nelections would naturally produce in both houses? Is it presumable, that\nevery man, the instant he took his seat in the national Senate or House\nof Representatives, would commence a traitor to his constituents and to\nhis country? Can it be supposed that there would not be found one man,\ndiscerning enough to detect so atrocious a conspiracy, or bold or honest\nenough to apprise his constituents of their danger? If such presumptions\ncan fairly be made, there ought at once to be an end of all delegated\nauthority. The people should resolve to recall all the powers they have\nheretofore parted with out of their own hands, and to divide themselves\ninto as many States as there are counties, in order that they may be\nable to manage their own concerns in person.\n\nIf such suppositions could even be reasonably made, still the\nconcealment of the design, for any duration, would be impracticable. It\nwould be announced, by the very circumstance of augmenting the army\nto so great an extent in time of profound peace. What colorable reason\ncould be assigned, in a country so situated, for such vast augmentations\nof the military force? It is impossible that the people could be long\ndeceived; and the destruction of the project, and of the projectors,\nwould quickly follow the discovery.\n\nIt has been said that the provision which limits the appropriation of\nmoney for the support of an army to the period of two years would be\nunavailing, because the Executive, when once possessed of a force large\nenough to awe the people into submission, would find resources in that\nvery force sufficient to enable him to dispense with supplies from\nthe acts of the legislature. But the question again recurs, upon what\npretense could he be put in possession of a force of that magnitude in\ntime of peace? If we suppose it to have been created in consequence of\nsome domestic insurrection or foreign war, then it becomes a case not\nwithin the principles of the objection; for this is levelled against\nthe power of keeping up troops in time of peace. Few persons will be so\nvisionary as seriously to contend that military forces ought not to be\nraised to quell a rebellion or resist an invasion; and if the defense of\nthe community under such circumstances should make it necessary to\nhave an army so numerous as to hazard its liberty, this is one of those\ncalamities for which there is neither preventative nor cure. It cannot\nbe provided against by any possible form of government; it might even\nresult from a simple league offensive and defensive, if it should ever\nbe necessary for the confederates or allies to form an army for common\ndefense.\n\nBut it is an evil infinitely less likely to attend us in a united than\nin a disunited state; nay, it may be safely asserted that it is an evil\naltogether unlikely to attend us in the latter situation. It is not\neasy to conceive a possibility that dangers so formidable can assail\nthe whole Union, as to demand a force considerable enough to place our\nliberties in the least jeopardy, especially if we take into our view\nthe aid to be derived from the militia, which ought always to be counted\nupon as a valuable and powerful auxiliary. But in a state of disunion\n(as has been fully shown in another place), the contrary of this\nsupposition would become not only probable, but almost unavoidable.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 27\n\nThe Same Subject Continued (The Idea of Restraining the Legislative\nAuthority in Regard to the Common Defense Considered)\n\nFrom the New York Packet. Tuesday, December 25, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIT HAS been urged, in different shapes, that a Constitution of the kind\nproposed by the convention cannot operate without the aid of a military\nforce to execute its laws. This, however, like most other things\nthat have been alleged on that side, rests on mere general assertion,\nunsupported by any precise or intelligible designation of the reasons\nupon which it is founded. As far as I have been able to divine\nthe latent meaning of the objectors, it seems to originate in a\npresupposition that the people will be disinclined to the exercise\nof federal authority in any matter of an internal nature. Waiving any\nexception that might be taken to the inaccuracy or inexplicitness of the\ndistinction between internal and external, let us inquire what ground\nthere is to presuppose that disinclination in the people. Unless we\npresume at the same time that the powers of the general government will\nbe worse administered than those of the State government, there seems to\nbe no room for the presumption of ill-will, disaffection, or opposition\nin the people. I believe it may be laid down as a general rule that\ntheir confidence in and obedience to a government will commonly be\nproportioned to the goodness or badness of its administration. It must\nbe admitted that there are exceptions to this rule; but these exceptions\ndepend so entirely on accidental causes, that they cannot be considered\nas having any relation to the intrinsic merits or demerits of a\nconstitution. These can only be judged of by general principles and\nmaxims.\n\nVarious reasons have been suggested, in the course of these papers,\nto induce a probability that the general government will be better\nadministered than the particular governments; the principal of which\nreasons are that the extension of the spheres of election will present\na greater option, or latitude of choice, to the people; that through\nthe medium of the State legislatures which are select bodies of men, and\nwhich are to appoint the members of the national Senate there is reason\nto expect that this branch will generally be composed with peculiar care\nand judgment; that these circumstances promise greater knowledge and\nmore extensive information in the national councils, and that they will\nbe less apt to be tainted by the spirit of faction, and more out of\nthe reach of those occasional ill-humors, or temporary prejudices and\npropensities, which, in smaller societies, frequently contaminate\nthe public councils, beget injustice and oppression of a part of the\ncommunity, and engender schemes which, though they gratify a momentary\ninclination or desire, terminate in general distress, dissatisfaction,\nand disgust. Several additional reasons of considerable force, to\nfortify that probability, will occur when we come to survey, with a more\ncritical eye, the interior structure of the edifice which we are invited\nto erect. It will be sufficient here to remark, that until satisfactory\nreasons can be assigned to justify an opinion, that the federal\ngovernment is likely to be administered in such a manner as to render\nit odious or contemptible to the people, there can be no reasonable\nfoundation for the supposition that the laws of the Union will meet with\nany greater obstruction from them, or will stand in need of any other\nmethods to enforce their execution, than the laws of the particular\nmembers.\n\nThe hope of impunity is a strong incitement to sedition; the dread of\npunishment, a proportionably strong discouragement to it. Will not the\ngovernment of the Union, which, if possessed of a due degree of power,\ncan call to its aid the collective resources of the whole Confederacy,\nbe more likely to repress the FORMER sentiment and to inspire the\nLATTER, than that of a single State, which can only command the\nresources within itself? A turbulent faction in a State may easily\nsuppose itself able to contend with the friends to the government in\nthat State; but it can hardly be so infatuated as to imagine itself a\nmatch for the combined efforts of the Union. If this reflection be\njust, there is less danger of resistance from irregular combinations of\nindividuals to the authority of the Confederacy than to that of a single\nmember.\n\nI will, in this place, hazard an observation, which will not be the\nless just because to some it may appear new; which is, that the more the\noperations of the national authority are intermingled in the ordinary\nexercise of government, the more the citizens are accustomed to meet\nwith it in the common occurrences of their political life, the more it\nis familiarized to their sight and to their feelings, the further it\nenters into those objects which touch the most sensible chords and put\nin motion the most active springs of the human heart, the greater will\nbe the probability that it will conciliate the respect and attachment of\nthe community. Man is very much a creature of habit. A thing that rarely\nstrikes his senses will generally have but little influence upon his\nmind. A government continually at a distance and out of sight can hardly\nbe expected to interest the sensations of the people. The inference\nis, that the authority of the Union, and the affections of the citizens\ntowards it, will be strengthened, rather than weakened, by its extension\nto what are called matters of internal concern; and will have less\noccasion to recur to force, in proportion to the familiarity and\ncomprehensiveness of its agency. The more it circulates through those\nchannels and currents in which the passions of mankind naturally flow,\nthe less will it require the aid of the violent and perilous expedients\nof compulsion.\n\nOne thing, at all events, must be evident, that a government like the\none proposed would bid much fairer to avoid the necessity of using\nforce, than that species of league contend for by most of its opponents;\nthe authority of which should only operate upon the States in their\npolitical or collective capacities. It has been shown that in such\na Confederacy there can be no sanction for the laws but force; that\nfrequent delinquencies in the members are the natural offspring of the\nvery frame of the government; and that as often as these happen, they\ncan only be redressed, if at all, by war and violence.\n\nThe plan reported by the convention, by extending the authority of the\nfederal head to the individual citizens of the several States, will\nenable the government to employ the ordinary magistracy of each, in the\nexecution of its laws. It is easy to perceive that this will tend to\ndestroy, in the common apprehension, all distinction between the sources\nfrom which they might proceed; and will give the federal government the\nsame advantage for securing a due obedience to its authority which is\nenjoyed by the government of each State, in addition to the influence on\npublic opinion which will result from the important consideration of its\nhaving power to call to its assistance and support the resources of the\nwhole Union. It merits particular attention in this place, that the laws\nof the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its\njurisdiction, will become the SUPREME LAW of the land; to the observance\nof which all officers, legislative, executive, and judicial, in each\nState, will be bound by the sanctity of an oath. Thus the legislatures,\ncourts, and magistrates, of the respective members, will be incorporated\ninto the operations of the national government AS FAR AS ITS JUST AND\nCONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to\nthe enforcement of its laws.(1) Any man who will pursue, by his own\nreflections, the consequences of this situation, will perceive that\nthere is good ground to calculate upon a regular and peaceable execution\nof the laws of the Union, if its powers are administered with a common\nshare of prudence. If we will arbitrarily suppose the contrary, we\nmay deduce any inferences we please from the supposition; for it is\ncertainly possible, by an injudicious exercise of the authorities of the\nbest government that ever was, or ever can be instituted, to provoke\nand precipitate the people into the wildest excesses. But though\nthe adversaries of the proposed Constitution should presume that the\nnational rulers would be insensible to the motives of public good, or\nto the obligations of duty, I would still ask them how the interests\nof ambition, or the views of encroachment, can be promoted by such a\nconduct?\n\nPUBLIUS\n\n1. The sophistry which has been employed to show that this will tend\nto the destruction of the State governments, will, in its will, in its\nproper place, be fully detected.\n\n\n\n\nFEDERALIST No. 28\n\nThe Same Subject Continued (The Idea of Restraining the Legislative\nAuthority in Regard to the Common Defense Considered)\n\nFor the Independent Journal. Wednesday, December 26, 1787\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHAT there may happen cases in which the national government may be\nnecessitated to resort to force, cannot be denied. Our own experience\nhas corroborated the lessons taught by the examples of other nations;\nthat emergencies of this sort will sometimes arise in all societies,\nhowever constituted; that seditions and insurrections are, unhappily,\nmaladies as inseparable from the body politic as tumors and eruptions\nfrom the natural body; that the idea of governing at all times by the\nsimple force of law (which we have been told is the only admissible\nprinciple of republican government), has no place but in the reveries\nof those political doctors whose sagacity disdains the admonitions of\nexperimental instruction.\n\nShould such emergencies at any time happen under the national\ngovernment, there could be no remedy but force. The means to be employed\nmust be proportioned to the extent of the mischief. If it should be a\nslight commotion in a small part of a State, the militia of the residue\nwould be adequate to its suppression; and the national presumption is\nthat they would be ready to do their duty. An insurrection, whatever may\nbe its immediate cause, eventually endangers all government. Regard to\nthe public peace, if not to the rights of the Union, would engage the\ncitizens to whom the contagion had not communicated itself to oppose the\ninsurgents; and if the general government should be found in practice\nconducive to the prosperity and felicity of the people, it were\nirrational to believe that they would be disinclined to its support.\n\nIf, on the contrary, the insurrection should pervade a whole State, or a\nprincipal part of it, the employment of a different kind of force might\nbecome unavoidable. It appears that Massachusetts found it necessary\nto raise troops for repressing the disorders within that State; that\nPennsylvania, from the mere apprehension of commotions among a part of\nher citizens, has thought proper to have recourse to the same measure.\nSuppose the State of New York had been inclined to re-establish her lost\njurisdiction over the inhabitants of Vermont, could she have hoped for\nsuccess in such an enterprise from the efforts of the militia alone?\nWould she not have been compelled to raise and to maintain a more\nregular force for the execution of her design? If it must then be\nadmitted that the necessity of recurring to a force different from the\nmilitia, in cases of this extraordinary nature, is applicable to the\nState governments themselves, why should the possibility, that the\nnational government might be under a like necessity, in similar\nextremities, be made an objection to its existence? Is it not surprising\nthat men who declare an attachment to the Union in the abstract, should\nurge as an objection to the proposed Constitution what applies with\ntenfold weight to the plan for which they contend; and what, as far as\nit has any foundation in truth, is an inevitable consequence of civil\nsociety upon an enlarged scale? Who would not prefer that possibility\nto the unceasing agitations and frequent revolutions which are the\ncontinual scourges of petty republics?\n\nLet us pursue this examination in another light. Suppose, in lieu of\none general system, two, or three, or even four Confederacies were to be\nformed, would not the same difficulty oppose itself to the operations of\neither of these Confederacies? Would not each of them be exposed to the\nsame casualties; and when these happened, be obliged to have recourse to\nthe same expedients for upholding its authority which are objected to in\na government for all the States? Would the militia, in this supposition,\nbe more ready or more able to support the federal authority than in the\ncase of a general union? All candid and intelligent men must, upon\ndue consideration, acknowledge that the principle of the objection is\nequally applicable to either of the two cases; and that whether we\nhave one government for all the States, or different governments\nfor different parcels of them, or even if there should be an entire\nseparation of the States, there might sometimes be a necessity to make\nuse of a force constituted differently from the militia, to preserve the\npeace of the community and to maintain the just authority of the laws\nagainst those violent invasions of them which amount to insurrections\nand rebellions.\n\nIndependent of all other reasonings upon the subject, it is a full\nanswer to those who require a more peremptory provision against military\nestablishments in time of peace, to say that the whole power of the\nproposed government is to be in the hands of the representatives of the\npeople. This is the essential, and, after all, only efficacious security\nfor the rights and privileges of the people, which is attainable in\ncivil society.(1)\n\nIf the representatives of the people betray their constituents, there\nis then no resource left but in the exertion of that original right of\nself-defense which is paramount to all positive forms of government,\nand which against the usurpations of the national rulers, may be exerted\nwith infinitely better prospect of success than against those of\nthe rulers of an individual state. In a single state, if the persons\nintrusted with supreme power become usurpers, the different parcels,\nsubdivisions, or districts of which it consists, having no distinct\ngovernment in each, can take no regular measures for defense. The\ncitizens must rush tumultuously to arms, without concert, without\nsystem, without resource; except in their courage and despair. The\nusurpers, clothed with the forms of legal authority, can too often crush\nthe opposition in embryo. The smaller the extent of the territory, the\nmore difficult will it be for the people to form a regular or systematic\nplan of opposition, and the more easy will it be to defeat their\nearly efforts. Intelligence can be more speedily obtained of their\npreparations and movements, and the military force in the possession\nof the usurpers can be more rapidly directed against the part where\nthe opposition has begun. In this situation there must be a peculiar\ncoincidence of circumstances to insure success to the popular\nresistance.\n\nThe obstacles to usurpation and the facilities of resistance increase\nwith the increased extent of the state, provided the citizens understand\ntheir rights and are disposed to defend them. The natural strength\nof the people in a large community, in proportion to the artificial\nstrength of the government, is greater than in a small, and of course\nmore competent to a struggle with the attempts of the government\nto establish a tyranny. But in a confederacy the people, without\nexaggeration, may be said to be entirely the masters of their own fate.\nPower being almost always the rival of power, the general government\nwill at all times stand ready to check the usurpations of the state\ngovernments, and these will have the same disposition towards the\ngeneral government. The people, by throwing themselves into either\nscale, will infallibly make it preponderate. If their rights are invaded\nby either, they can make use of the other as the instrument of redress.\nHow wise will it be in them by cherishing the union to preserve to\nthemselves an advantage which can never be too highly prized!\n\nIt may safely be received as an axiom in our political system, that the\nState governments will, in all possible contingencies, afford complete\nsecurity against invasions of the public liberty by the national\nauthority. Projects of usurpation cannot be masked under pretenses so\nlikely to escape the penetration of select bodies of men, as of the\npeople at large. The legislatures will have better means of information.\nThey can discover the danger at a distance; and possessing all the\norgans of civil power, and the confidence of the people, they can at\nonce adopt a regular plan of opposition, in which they can combine all\nthe resources of the community. They can readily communicate with each\nother in the different States, and unite their common forces for the\nprotection of their common liberty.\n\nThe great extent of the country is a further security. We have already\nexperienced its utility against the attacks of a foreign power. And\nit would have precisely the same effect against the enterprises of\nambitious rulers in the national councils. If the federal army should be\nable to quell the resistance of one State, the distant States would\nhave it in their power to make head with fresh forces. The advantages\nobtained in one place must be abandoned to subdue the opposition in\nothers; and the moment the part which had been reduced to submission was\nleft to itself, its efforts would be renewed, and its resistance revive.\n\nWe should recollect that the extent of the military force must, at all\nevents, be regulated by the resources of the country. For a long time to\ncome, it will not be possible to maintain a large army; and as the\nmeans of doing this increase, the population and natural strength of the\ncommunity will proportionably increase. When will the time arrive\nthat the federal government can raise and maintain an army capable of\nerecting a despotism over the great body of the people of an immense\nempire, who are in a situation, through the medium of their State\ngovernments, to take measures for their own defense, with all\nthe celerity, regularity, and system of independent nations? The\napprehension may be considered as a disease, for which there can be\nfound no cure in the resources of argument and reasoning.\n\nPUBLIUS\n\n1. Its full efficacy will be examined hereafter.\n\n\n\n\nFEDERALIST No. 29\n\nConcerning the Militia\n\nFrom the New York Packet. Wednesday, January 9, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE power of regulating the militia, and of commanding its services in\ntimes of insurrection and invasion are natural incidents to the duties\nof superintending the common defense, and of watching over the internal\npeace of the Confederacy.\n\nIt requires no skill in the science of war to discern that uniformity\nin the organization and discipline of the militia would be attended with\nthe most beneficial effects, whenever they were called into service for\nthe public defense. It would enable them to discharge the duties of the\ncamp and of the field with mutual intelligence and concert an advantage\nof peculiar moment in the operations of an army; and it would fit them\nmuch sooner to acquire the degree of proficiency in military functions\nwhich would be essential to their usefulness. This desirable uniformity\ncan only be accomplished by confiding the regulation of the militia to\nthe direction of the national authority. It is, therefore, with the most\nevident propriety, that the plan of the convention proposes to empower\nthe Union \"to provide for organizing, arming, and disciplining the\nmilitia, and for governing such part of them as may be employed in the\nservice of the United States, RESERVING TO THE STATES RESPECTIVELY THE\nAPPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA\nACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.\"\n\nOf the different grounds which have been taken in opposition to the\nplan of the convention, there is none that was so little to have been\nexpected, or is so untenable in itself, as the one from which this\nparticular provision has been attacked. If a well-regulated militia be\nthe most natural defense of a free country, it ought certainly to\nbe under the regulation and at the disposal of that body which is\nconstituted the guardian of the national security. If standing armies\nare dangerous to liberty, an efficacious power over the militia, in the\nbody to whose care the protection of the State is committed, ought, as\nfar as possible, to take away the inducement and the pretext to such\nunfriendly institutions. If the federal government can command the aid\nof the militia in those emergencies which call for the military arm in\nsupport of the civil magistrate, it can the better dispense with the\nemployment of a different kind of force. If it cannot avail itself of\nthe former, it will be obliged to recur to the latter. To render an army\nunnecessary, will be a more certain method of preventing its existence\nthan a thousand prohibitions upon paper.\n\nIn order to cast an odium upon the power of calling forth the militia\nto execute the laws of the Union, it has been remarked that there is\nnowhere any provision in the proposed Constitution for calling out the\nPOSSE COMITATUS, to assist the magistrate in the execution of his duty,\nwhence it has been inferred, that military force was intended to be his\nonly auxiliary. There is a striking incoherence in the objections\nwhich have appeared, and sometimes even from the same quarter, not much\ncalculated to inspire a very favorable opinion of the sincerity or fair\ndealing of their authors. The same persons who tell us in one breath,\nthat the powers of the federal government will be despotic and\nunlimited, inform us in the next, that it has not authority sufficient\neven to call out the POSSE COMITATUS. The latter, fortunately, is as\nmuch short of the truth as the former exceeds it. It would be as absurd\nto doubt, that a right to pass all laws NECESSARY AND PROPER to execute\nits declared powers, would include that of requiring the assistance of\nthe citizens to the officers who may be intrusted with the execution\nof those laws, as it would be to believe, that a right to enact laws\nnecessary and proper for the imposition and collection of taxes would\ninvolve that of varying the rules of descent and of the alienation of\nlanded property, or of abolishing the trial by jury in cases relating to\nit. It being therefore evident that the supposition of a want of power\nto require the aid of the POSSE COMITATUS is entirely destitute of\ncolor, it will follow, that the conclusion which has been drawn from it,\nin its application to the authority of the federal government over the\nmilitia, is as uncandid as it is illogical. What reason could there\nbe to infer, that force was intended to be the sole instrument of\nauthority, merely because there is a power to make use of it when\nnecessary? What shall we think of the motives which could induce men of\nsense to reason in this manner? How shall we prevent a conflict between\ncharity and conviction?\n\nBy a curious refinement upon the spirit of republican jealousy, we are\neven taught to apprehend danger from the militia itself, in the hands of\nthe federal government. It is observed that select corps may be formed,\ncomposed of the young and ardent, who may be rendered subservient to the\nviews of arbitrary power. What plan for the regulation of the militia\nmay be pursued by the national government, is impossible to be foreseen.\nBut so far from viewing the matter in the same light with those who\nobject to select corps as dangerous, were the Constitution ratified, and\nwere I to deliver my sentiments to a member of the federal legislature\nfrom this State on the subject of a militia establishment, I should hold\nto him, in substance, the following discourse:\n\n\"The project of disciplining all the militia of the United States is\nas futile as it would be injurious, if it were capable of being carried\ninto execution. A tolerable expertness in military movements is a\nbusiness that requires time and practice. It is not a day, or even a\nweek, that will suffice for the attainment of it. To oblige the great\nbody of the yeomanry, and of the other classes of the citizens, to\nbe under arms for the purpose of going through military exercises and\nevolutions, as often as might be necessary to acquire the degree of\nperfection which would entitle them to the character of a well-regulated\nmilitia, would be a real grievance to the people, and a serious public\ninconvenience and loss. It would form an annual deduction from the\nproductive labor of the country, to an amount which, calculating upon\nthe present numbers of the people, would not fall far short of the whole\nexpense of the civil establishments of all the States. To attempt\na thing which would abridge the mass of labor and industry to so\nconsiderable an extent, would be unwise: and the experiment, if made,\ncould not succeed, because it would not long be endured. Little more\ncan reasonably be aimed at, with respect to the people at large, than to\nhave them properly armed and equipped; and in order to see that this be\nnot neglected, it will be necessary to assemble them once or twice in\nthe course of a year.\n\n\"But though the scheme of disciplining the whole nation must be\nabandoned as mischievous or impracticable; yet it is a matter of the\nutmost importance that a well-digested plan should, as soon as possible,\nbe adopted for the proper establishment of the militia. The attention of\nthe government ought particularly to be directed to the formation of a\nselect corps of moderate extent, upon such principles as will really fit\nthem for service in case of need. By thus circumscribing the plan, it\nwill be possible to have an excellent body of well-trained militia,\nready to take the field whenever the defense of the State shall require\nit. This will not only lessen the call for military establishments, but\nif circumstances should at any time oblige the government to form an\narmy of any magnitude that army can never be formidable to the liberties\nof the people while there is a large body of citizens, little, if at\nall, inferior to them in discipline and the use of arms, who stand ready\nto defend their own rights and those of their fellow-citizens. This\nappears to me the only substitute that can be devised for a standing\narmy, and the best possible security against it, if it should exist.\"\n\nThus differently from the adversaries of the proposed Constitution\nshould I reason on the same subject, deducing arguments of safety\nfrom the very sources which they represent as fraught with danger and\nperdition. But how the national legislature may reason on the point, is\na thing which neither they nor I can foresee.\n\nThere is something so far-fetched and so extravagant in the idea of\ndanger to liberty from the militia, that one is at a loss whether to\ntreat it with gravity or with raillery; whether to consider it as a mere\ntrial of skill, like the paradoxes of rhetoricians; as a disingenuous\nartifice to instil prejudices at any price; or as the serious offspring\nof political fanaticism. Where in the name of common-sense, are our\nfears to end if we may not trust our sons, our brothers, our neighbors,\nour fellow-citizens? What shadow of danger can there be from men who\nare daily mingling with the rest of their countrymen and who participate\nwith them in the same feelings, sentiments, habits and interests? What\nreasonable cause of apprehension can be inferred from a power in the\nUnion to prescribe regulations for the militia, and to command its\nservices when necessary, while the particular States are to have the\nSOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible\nseriously to indulge a jealousy of the militia upon any conceivable\nestablishment under the federal government, the circumstance of the\nofficers being in the appointment of the States ought at once to\nextinguish it. There can be no doubt that this circumstance will always\nsecure to them a preponderating influence over the militia.\n\nIn reading many of the publications against the Constitution, a man is\napt to imagine that he is perusing some ill-written tale or romance,\nwhich instead of natural and agreeable images, exhibits to the mind\nnothing but frightful and distorted shapes--\n\n                \"Gorgons, hydras, and chimeras dire\";\n\ndiscoloring and disfiguring whatever it represents, and transforming\neverything it touches into a monster.\n\nA sample of this is to be observed in the exaggerated and improbable\nsuggestions which have taken place respecting the power of calling for\nthe services of the militia. That of New Hampshire is to be marched to\nGeorgia, of Georgia to New Hampshire, of New York to Kentucky, and of\nKentucky to Lake Champlain. Nay, the debts due to the French and Dutch\nare to be paid in militiamen instead of louis d'ors and ducats. At one\nmoment there is to be a large army to lay prostrate the liberties of the\npeople; at another moment the militia of Virginia are to be dragged from\ntheir homes five or six hundred miles, to tame the republican contumacy\nof Massachusetts; and that of Massachusetts is to be transported an\nequal distance to subdue the refractory haughtiness of the aristocratic\nVirginians. Do the persons who rave at this rate imagine that their\nart or their eloquence can impose any conceits or absurdities upon the\npeople of America for infallible truths?\n\nIf there should be an army to be made use of as the engine of despotism,\nwhat need of the militia? If there should be no army, whither would\nthe militia, irritated by being called upon to undertake a distant and\nhopeless expedition, for the purpose of riveting the chains of slavery\nupon a part of their countrymen, direct their course, but to the seat\nof the tyrants, who had meditated so foolish as well as so wicked a\nproject, to crush them in their imagined intrenchments of power, and\nto make them an example of the just vengeance of an abused and incensed\npeople? Is this the way in which usurpers stride to dominion over\na numerous and enlightened nation? Do they begin by exciting the\ndetestation of the very instruments of their intended usurpations? Do\nthey usually commence their career by wanton and disgustful acts\nof power, calculated to answer no end, but to draw upon themselves\nuniversal hatred and execration? Are suppositions of this sort the sober\nadmonitions of discerning patriots to a discerning people? Or are they\nthe inflammatory ravings of incendiaries or distempered enthusiasts?\nIf we were even to suppose the national rulers actuated by the most\nungovernable ambition, it is impossible to believe that they would\nemploy such preposterous means to accomplish their designs.\n\nIn times of insurrection, or invasion, it would be natural and proper\nthat the militia of a neighboring State should be marched into another,\nto resist a common enemy, or to guard the republic against the violence\nof faction or sedition. This was frequently the case, in respect to the\nfirst object, in the course of the late war; and this mutual succor is,\nindeed, a principal end of our political association. If the power of\naffording it be placed under the direction of the Union, there will\nbe no danger of a supine and listless inattention to the dangers of\na neighbor, till its near approach had superadded the incitements of\nself-preservation to the too feeble impulses of duty and sympathy.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 30\n\nConcerning the General Power of Taxation\n\nFrom the New York Packet. Friday, December 28, 1787.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIT HAS been already observed that the federal government ought to\npossess the power of providing for the support of the national forces;\nin which proposition was intended to be included the expense of raising\ntroops, of building and equipping fleets, and all other expenses in any\nwise connected with military arrangements and operations. But these are\nnot the only objects to which the jurisdiction of the Union, in respect\nto revenue, must necessarily be empowered to extend. It must embrace a\nprovision for the support of the national civil list; for the payment\nof the national debts contracted, or that may be contracted; and, in\ngeneral, for all those matters which will call for disbursements out of\nthe national treasury. The conclusion is, that there must be interwoven,\nin the frame of the government, a general power of taxation, in one\nshape or another.\n\nMoney is, with propriety, considered as the vital principle of the body\npolitic; as that which sustains its life and motion, and enables it to\nperform its most essential functions. A complete power, therefore, to\nprocure a regular and adequate supply of it, as far as the resources\nof the community will permit, may be regarded as an indispensable\ningredient in every constitution. From a deficiency in this particular,\none of two evils must ensue; either the people must be subjected to\ncontinual plunder, as a substitute for a more eligible mode of supplying\nthe public wants, or the government must sink into a fatal atrophy, and,\nin a short course of time, perish.\n\nIn the Ottoman or Turkish empire, the sovereign, though in other\nrespects absolute master of the lives and fortunes of his subjects, has\nno right to impose a new tax. The consequence is that he permits the\nbashaws or governors of provinces to pillage the people without mercy;\nand, in turn, squeezes out of them the sums of which he stands in need,\nto satisfy his own exigencies and those of the state. In America, from\na like cause, the government of the Union has gradually dwindled into a\nstate of decay, approaching nearly to annihilation. Who can doubt,\nthat the happiness of the people in both countries would be promoted by\ncompetent authorities in the proper hands, to provide the revenues which\nthe necessities of the public might require?\n\nThe present Confederation, feeble as it is intended to repose in the\nUnited States, an unlimited power of providing for the pecuniary wants\nof the Union. But proceeding upon an erroneous principle, it has been\ndone in such a manner as entirely to have frustrated the intention.\nCongress, by the articles which compose that compact (as has already\nbeen stated), are authorized to ascertain and call for any sums of money\nnecessary, in their judgment, to the service of the United States; and\ntheir requisitions, if conformable to the rule of apportionment, are\nin every constitutional sense obligatory upon the States. These have no\nright to question the propriety of the demand; no discretion beyond\nthat of devising the ways and means of furnishing the sums demanded.\nBut though this be strictly and truly the case; though the assumption of\nsuch a right would be an infringement of the articles of Union; though\nit may seldom or never have been avowedly claimed, yet in practice it\nhas been constantly exercised, and would continue to be so, as long\nas the revenues of the Confederacy should remain dependent on the\nintermediate agency of its members. What the consequences of this system\nhave been, is within the knowledge of every man the least conversant in\nour public affairs, and has been amply unfolded in different parts of\nthese inquiries. It is this which has chiefly contributed to reduce\nus to a situation, which affords ample cause both of mortification to\nourselves, and of triumph to our enemies.\n\nWhat remedy can there be for this situation, but in a change of the\nsystem which has produced it in a change of the fallacious and delusive\nsystem of quotas and requisitions? What substitute can there be imagined\nfor this ignis fatuus in finance, but that of permitting the national\ngovernment to raise its own revenues by the ordinary methods of taxation\nauthorized in every well-ordered constitution of civil government?\nIngenious men may declaim with plausibility on any subject; but no\nhuman ingenuity can point out any other expedient to rescue us from the\ninconveniences and embarrassments naturally resulting from defective\nsupplies of the public treasury.\n\nThe more intelligent adversaries of the new Constitution admit the force\nof this reasoning; but they qualify their admission by a distinction\nbetween what they call INTERNAL and EXTERNAL taxation. The former they\nwould reserve to the State governments; the latter, which they explain\ninto commercial imposts, or rather duties on imported articles,\nthey declare themselves willing to concede to the federal head. This\ndistinction, however, would violate the maxim of good sense and sound\npolicy, which dictates that every POWER ought to be in proportion to\nits OBJECT; and would still leave the general government in a kind of\ntutelage to the State governments, inconsistent with every idea of vigor\nor efficiency. Who can pretend that commercial imposts are, or would be,\nalone equal to the present and future exigencies of the Union? Taking\ninto the account the existing debt, foreign and domestic, upon any plan\nof extinguishment which a man moderately impressed with the importance\nof public justice and public credit could approve, in addition to the\nestablishments which all parties will acknowledge to be necessary, we\ncould not reasonably flatter ourselves, that this resource alone, upon\nthe most improved scale, would even suffice for its present necessities.\nIts future necessities admit not of calculation or limitation; and upon\nthe principle, more than once adverted to, the power of making provision\nfor them as they arise ought to be equally unconfined. I believe it may\nbe regarded as a position warranted by the history of mankind, that,\nIN THE USUAL PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY\nSTAGE OF ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.\n\nTo say that deficiencies may be provided for by requisitions upon the\nStates, is on the one hand to acknowledge that this system cannot be\ndepended upon, and on the other hand to depend upon it for every thing\nbeyond a certain limit. Those who have carefully attended to its vices\nand deformities as they have been exhibited by experience or delineated\nin the course of these papers, must feel invincible repugnancy to\ntrusting the national interests in any degree to its operation. Its\ninevitable tendency, whenever it is brought into activity, must be to\nenfeeble the Union, and sow the seeds of discord and contention between\nthe federal head and its members, and between the members themselves.\nCan it be expected that the deficiencies would be better supplied\nin this mode than the total wants of the Union have heretofore been\nsupplied in the same mode? It ought to be recollected that if less will\nbe required from the States, they will have proportionably less means\nto answer the demand. If the opinions of those who contend for the\ndistinction which has been mentioned were to be received as evidence of\ntruth, one would be led to conclude that there was some known point in\nthe economy of national affairs at which it would be safe to stop and to\nsay: Thus far the ends of public happiness will be promoted by supplying\nthe wants of government, and all beyond this is unworthy of our care or\nanxiety. How is it possible that a government half supplied and always\nnecessitous, can fulfill the purposes of its institution, can provide\nfor the security, advance the prosperity, or support the reputation of\nthe commonwealth? How can it ever possess either energy or stability,\ndignity or credit, confidence at home or respectability abroad? How can\nits administration be any thing else than a succession of expedients\ntemporizing, impotent, disgraceful? How will it be able to avoid a\nfrequent sacrifice of its engagements to immediate necessity? How can it\nundertake or execute any liberal or enlarged plans of public good?\n\nLet us attend to what would be the effects of this situation in the very\nfirst war in which we should happen to be engaged. We will presume, for\nargument's sake, that the revenue arising from the impost duties\nanswers the purposes of a provision for the public debt and of a peace\nestablishment for the Union. Thus circumstanced, a war breaks out. What\nwould be the probable conduct of the government in such an emergency?\nTaught by experience that proper dependence could not be placed on the\nsuccess of requisitions, unable by its own authority to lay hold of\nfresh resources, and urged by considerations of national danger,\nwould it not be driven to the expedient of diverting the funds already\nappropriated from their proper objects to the defense of the State? It\nis not easy to see how a step of this kind could be avoided; and if it\nshould be taken, it is evident that it would prove the destruction of\npublic credit at the very moment that it was becoming essential to\nthe public safety. To imagine that at such a crisis credit might be\ndispensed with, would be the extreme of infatuation. In the modern\nsystem of war, nations the most wealthy are obliged to have recourse\nto large loans. A country so little opulent as ours must feel this\nnecessity in a much stronger degree. But who would lend to a government\nthat prefaced its overtures for borrowing by an act which demonstrated\nthat no reliance could be placed on the steadiness of its measures for\npaying? The loans it might be able to procure would be as limited in\ntheir extent as burdensome in their conditions. They would be made\nupon the same principles that usurers commonly lend to bankrupt and\nfraudulent debtors, with a sparing hand and at enormous premiums.\n\nIt may perhaps be imagined that, from the scantiness of the resources\nof the country, the necessity of diverting the established funds in the\ncase supposed would exist, though the national government should possess\nan unrestrained power of taxation. But two considerations will serve\nto quiet all apprehension on this head: one is, that we are sure the\nresources of the community, in their full extent, will be brought into\nactivity for the benefit of the Union; the other is, that whatever\ndeficiences there may be, can without difficulty be supplied by loans.\n\nThe power of creating new funds upon new objects of taxation, by its own\nauthority, would enable the national government to borrow as far as\nits necessities might require. Foreigners, as well as the citizens of\nAmerica, could then reasonably repose confidence in its engagements; but\nto depend upon a government that must itself depend upon thirteen other\ngovernments for the means of fulfilling its contracts, when once its\nsituation is clearly understood, would require a degree of credulity\nnot often to be met with in the pecuniary transactions of mankind, and\nlittle reconcilable with the usual sharp-sightedness of avarice.\n\nReflections of this kind may have trifling weight with men who hope to\nsee realized in America the halcyon scenes of the poetic or fabulous\nage; but to those who believe we are likely to experience a common\nportion of the vicissitudes and calamities which have fallen to the lot\nof other nations, they must appear entitled to serious attention. Such\nmen must behold the actual situation of their country with painful\nsolicitude, and deprecate the evils which ambition or revenge might,\nwith too much facility, inflict upon it.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 31\n\nThe Same Subject Continued (Concerning the General Power of Taxation)\n\nFrom the New York Packet. Tuesday, January 1, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIN DISQUISITIONS of every kind, there are certain primary truths, or\nfirst principles, upon which all subsequent reasonings must depend.\nThese contain an internal evidence which, antecedent to all reflection\nor combination, commands the assent of the mind. Where it produces not\nthis effect, it must proceed either from some defect or disorder in the\norgans of perception, or from the influence of some strong interest, or\npassion, or prejudice. Of this nature are the maxims in geometry, that\n\"the whole is greater than its part; things equal to the same are equal\nto one another; two straight lines cannot enclose a space; and all right\nangles are equal to each other.\" Of the same nature are these other\nmaxims in ethics and politics, that there cannot be an effect without\na cause; that the means ought to be proportioned to the end; that every\npower ought to be commensurate with its object; that there ought to be\nno limitation of a power destined to effect a purpose which is itself\nincapable of limitation. And there are other truths in the two latter\nsciences which, if they cannot pretend to rank in the class of axioms,\nare yet such direct inferences from them, and so obvious in themselves,\nand so agreeable to the natural and unsophisticated dictates of\ncommon-sense, that they challenge the assent of a sound and unbiased\nmind, with a degree of force and conviction almost equally irresistible.\n\nThe objects of geometrical inquiry are so entirely abstracted from those\npursuits which stir up and put in motion the unruly passions of the\nhuman heart, that mankind, without difficulty, adopt not only the more\nsimple theorems of the science, but even those abstruse paradoxes which,\nhowever they may appear susceptible of demonstration, are at variance\nwith the natural conceptions which the mind, without the aid of\nphilosophy, would be led to entertain upon the subject. The INFINITE\nDIVISIBILITY of matter, or, in other words, the INFINITE divisibility of\na FINITE thing, extending even to the minutest atom, is a point agreed\namong geometricians, though not less incomprehensible to common-sense\nthan any of those mysteries in religion, against which the batteries of\ninfidelity have been so industriously leveled.\n\nBut in the sciences of morals and politics, men are found far less\ntractable. To a certain degree, it is right and useful that this should\nbe the case. Caution and investigation are a necessary armor against\nerror and imposition. But this untractableness may be carried too far,\nand may degenerate into obstinacy, perverseness, or disingenuity.\nThough it cannot be pretended that the principles of moral and political\nknowledge have, in general, the same degree of certainty with those of\nthe mathematics, yet they have much better claims in this respect than,\nto judge from the conduct of men in particular situations, we should be\ndisposed to allow them. The obscurity is much oftener in the passions\nand prejudices of the reasoner than in the subject. Men, upon too many\noccasions, do not give their own understandings fair play; but, yielding\nto some untoward bias, they entangle themselves in words and confound\nthemselves in subtleties.\n\nHow else could it happen (if we admit the objectors to be sincere in\ntheir opposition), that positions so clear as those which manifest the\nnecessity of a general power of taxation in the government of the Union,\nshould have to encounter any adversaries among men of discernment?\nThough these positions have been elsewhere fully stated, they will\nperhaps not be improperly recapitulated in this place, as introductory\nto an examination of what may have been offered by way of objection to\nthem. They are in substance as follows:\n\nA government ought to contain in itself every power requisite to the\nfull accomplishment of the objects committed to its care, and to the\ncomplete execution of the trusts for which it is responsible, free from\nevery other control but a regard to the public good and to the sense of\nthe people.\n\nAs the duties of superintending the national defense and of securing the\npublic peace against foreign or domestic violence involve a provision\nfor casualties and dangers to which no possible limits can be assigned,\nthe power of making that provision ought to know no other bounds than\nthe exigencies of the nation and the resources of the community.\n\nAs revenue is the essential engine by which the means of answering\nthe national exigencies must be procured, the power of procuring that\narticle in its full extent must necessarily be comprehended in that of\nproviding for those exigencies.\n\nAs theory and practice conspire to prove that the power of procuring\nrevenue is unavailing when exercised over the States in their collective\ncapacities, the federal government must of necessity be invested with an\nunqualified power of taxation in the ordinary modes.\n\nDid not experience evince the contrary, it would be natural to conclude\nthat the propriety of a general power of taxation in the national\ngovernment might safely be permitted to rest on the evidence of these\npropositions, unassisted by any additional arguments or illustrations.\nBut we find, in fact, that the antagonists of the proposed Constitution,\nso far from acquiescing in their justness or truth, seem to make their\nprincipal and most zealous effort against this part of the plan. It\nmay therefore be satisfactory to analyze the arguments with which they\ncombat it.\n\nThose of them which have been most labored with that view, seem in\nsubstance to amount to this: \"It is not true, because the exigencies of\nthe Union may not be susceptible of limitation, that its power of laying\ntaxes ought to be unconfined. Revenue is as requisite to the purposes of\nthe local administrations as to those of the Union; and the former are\nat least of equal importance with the latter to the happiness of the\npeople. It is, therefore, as necessary that the State governments should\nbe able to command the means of supplying their wants, as that the\nnational government should possess the like faculty in respect to the\nwants of the Union. But an indefinite power of taxation in the LATTER\nmight, and probably would in time, deprive the FORMER of the means of\nproviding for their own necessities; and would subject them entirely to\nthe mercy of the national legislature. As the laws of the Union are to\nbecome the supreme law of the land, as it is to have power to pass all\nlaws that may be NECESSARY for carrying into execution the authorities\nwith which it is proposed to vest it, the national government might at\nany time abolish the taxes imposed for State objects upon the pretense\nof an interference with its own. It might allege a necessity of doing\nthis in order to give efficacy to the national revenues. And thus\nall the resources of taxation might by degrees become the subjects of\nfederal monopoly, to the entire exclusion and destruction of the State\ngovernments.\"\n\nThis mode of reasoning appears sometimes to turn upon the supposition\nof usurpation in the national government; at other times it seems to be\ndesigned only as a deduction from the constitutional operation of its\nintended powers. It is only in the latter light that it can be\nadmitted to have any pretensions to fairness. The moment we launch into\nconjectures about the usurpations of the federal government, we get into\nan unfathomable abyss, and fairly put ourselves out of the reach of all\nreasoning. Imagination may range at pleasure till it gets bewildered\namidst the labyrinths of an enchanted castle, and knows not on which\nside to turn to extricate itself from the perplexities into which it has\nso rashly adventured. Whatever may be the limits or modifications of the\npowers of the Union, it is easy to imagine an endless train of possible\ndangers; and by indulging an excess of jealousy and timidity, we may\nbring ourselves to a state of absolute scepticism and irresolution. I\nrepeat here what I have observed in substance in another place, that all\nobservations founded upon the danger of usurpation ought to be referred\nto the composition and structure of the government, not to the nature\nor extent of its powers. The State governments, by their original\nconstitutions, are invested with complete sovereignty. In what does our\nsecurity consist against usurpation from that quarter? Doubtless in the\nmanner of their formation, and in a due dependence of those who are to\nadminister them upon the people. If the proposed construction of the\nfederal government be found, upon an impartial examination of it, to be\nsuch as to afford, to a proper extent, the same species of security, all\napprehensions on the score of usurpation ought to be discarded.\n\nIt should not be forgotten that a disposition in the State governments\nto encroach upon the rights of the Union is quite as probable as a\ndisposition in the Union to encroach upon the rights of the State\ngovernments. What side would be likely to prevail in such a conflict,\nmust depend on the means which the contending parties could employ\ntoward insuring success. As in republics strength is always on the side\nof the people, and as there are weighty reasons to induce a belief that\nthe State governments will commonly possess most influence over them,\nthe natural conclusion is that such contests will be most apt to end to\nthe disadvantage of the Union; and that there is greater probability of\nencroachments by the members upon the federal head, than by the federal\nhead upon the members. But it is evident that all conjectures of this\nkind must be extremely vague and fallible: and that it is by far the\nsafest course to lay them altogether aside, and to confine our attention\nwholly to the nature and extent of the powers as they are delineated in\nthe Constitution. Every thing beyond this must be left to the prudence\nand firmness of the people; who, as they will hold the scales in their\nown hands, it is to be hoped, will always take care to preserve\nthe constitutional equilibrium between the general and the State\ngovernments. Upon this ground, which is evidently the true one, it will\nnot be difficult to obviate the objections which have been made to an\nindefinite power of taxation in the United States.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 32\n\nThe Same Subject Continued (Concerning the General Power of Taxation)\n\nFrom The Independent Journal. Wednesday, January 2, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nALTHOUGH I am of opinion that there would be no real danger of the\nconsequences which seem to be apprehended to the State governments from\na power in the Union to control them in the levies of money, because\nI am persuaded that the sense of the people, the extreme hazard of\nprovoking the resentments of the State governments, and a conviction of\nthe utility and necessity of local administrations for local purposes,\nwould be a complete barrier against the oppressive use of such a power;\nyet I am willing here to allow, in its full extent, the justness of the\nreasoning which requires that the individual States should possess an\nindependent and uncontrollable authority to raise their own revenues for\nthe supply of their own wants. And making this concession, I affirm that\n(with the sole exception of duties on imports and exports) they would,\nunder the plan of the convention, retain that authority in the most\nabsolute and unqualified sense; and that an attempt on the part of the\nnational government to abridge them in the exercise of it, would be a\nviolent assumption of power, unwarranted by any article or clause of its\nConstitution.\n\nAn entire consolidation of the States into one complete national\nsovereignty would imply an entire subordination of the parts; and\nwhatever powers might remain in them, would be altogether dependent\non the general will. But as the plan of the convention aims only at\na partial union or consolidation, the State governments would clearly\nretain all the rights of sovereignty which they before had, and which\nwere not, by that act, EXCLUSIVELY delegated to the United States. This\nexclusive delegation, or rather this alienation, of State sovereignty,\nwould only exist in three cases: where the Constitution in express terms\ngranted an exclusive authority to the Union; where it granted in one\ninstance an authority to the Union, and in another prohibited the States\nfrom exercising the like authority; and where it granted an authority\nto the Union, to which a similar authority in the States would be\nabsolutely and totally CONTRADICTORY and REPUGNANT. I use these terms to\ndistinguish this last case from another which might appear to resemble\nit, but which would, in fact, be essentially different; I mean where the\nexercise of a concurrent jurisdiction might be productive of occasional\ninterferences in the POLICY of any branch of administration, but\nwould not imply any direct contradiction or repugnancy in point of\nconstitutional authority. These three cases of exclusive jurisdiction\nin the federal government may be exemplified by the following instances:\nThe last clause but one in the eighth section of the first article\nprovides expressly that Congress shall exercise \"EXCLUSIVE LEGISLATION\"\nover the district to be appropriated as the seat of government. This\nanswers to the first case. The first clause of the same section empowers\nCongress \"to lay and collect taxes, duties, imposts and excises\"; and\nthe second clause of the tenth section of the same article declares\nthat, \"NO STATE SHALL, without the consent of Congress, lay any imposts\nor duties on imports or exports, except for the purpose of executing its\ninspection laws.\" Hence would result an exclusive power in the Union\nto lay duties on imports and exports, with the particular exception\nmentioned; but this power is abridged by another clause, which declares\nthat no tax or duty shall be laid on articles exported from any State;\nin consequence of which qualification, it now only extends to the DUTIES\nON IMPORTS. This answers to the second case. The third will be found in\nthat clause which declares that Congress shall have power \"to establish\nan UNIFORM RULE of naturalization throughout the United States.\" This\nmust necessarily be exclusive; because if each State had power to\nprescribe a DISTINCT RULE, there could not be a UNIFORM RULE.\n\nA case which may perhaps be thought to resemble the latter, but which\nis in fact widely different, affects the question immediately under\nconsideration. I mean the power of imposing taxes on all articles other\nthan exports and imports. This, I contend, is manifestly a concurrent\nand coequal authority in the United States and in the individual States.\nThere is plainly no expression in the granting clause which makes that\npower EXCLUSIVE in the Union. There is no independent clause or sentence\nwhich prohibits the States from exercising it. So far is this from being\nthe case, that a plain and conclusive argument to the contrary is to be\ndeduced from the restraint laid upon the States in relation to duties on\nimports and exports. This restriction implies an admission that, if it\nwere not inserted, the States would possess the power it excludes;\nand it implies a further admission, that as to all other taxes, the\nauthority of the States remains undiminished. In any other view it would\nbe both unnecessary and dangerous; it would be unnecessary, because if\nthe grant to the Union of the power of laying such duties implied the\nexclusion of the States, or even their subordination in this particular,\nthere could be no need of such a restriction; it would be dangerous,\nbecause the introduction of it leads directly to the conclusion which\nhas been mentioned, and which, if the reasoning of the objectors be\njust, could not have been intended; I mean that the States, in all cases\nto which the restriction did not apply, would have a concurrent power\nof taxation with the Union. The restriction in question amounts to what\nlawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and\nan AFFIRMANCE of another; a negation of the authority of the States\nto impose taxes on imports and exports, and an affirmance of their\nauthority to impose them on all other articles. It would be mere\nsophistry to argue that it was meant to exclude them ABSOLUTELY from the\nimposition of taxes of the former kind, and to leave them at liberty\nto lay others SUBJECT TO THE CONTROL of the national legislature.\nThe restraining or prohibitory clause only says, that they shall not,\nWITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to\nunderstand this in the sense last mentioned, the Constitution would then\nbe made to introduce a formal provision for the sake of a very absurd\nconclusion; which is, that the States, WITH THE CONSENT of the national\nlegislature, might tax imports and exports; and that they might tax\nevery other article, UNLESS CONTROLLED by the same body. If this was the\nintention, why not leave it, in the first instance, to what is alleged\nto be the natural operation of the original clause, conferring a general\npower of taxation upon the Union? It is evident that this could not\nhave been the intention, and that it will not bear a construction of the\nkind.\n\nAs to a supposition of repugnancy between the power of taxation in the\nStates and in the Union, it cannot be supported in that sense which\nwould be requisite to work an exclusion of the States. It is, indeed,\npossible that a tax might be laid on a particular article by a State\nwhich might render it INEXPEDIENT that thus a further tax should be\nlaid on the same article by the Union; but it would not imply a\nconstitutional inability to impose a further tax. The quantity of the\nimposition, the expediency or inexpediency of an increase on either\nside, would be mutually questions of prudence; but there would be\ninvolved no direct contradiction of power. The particular policy of\nthe national and of the State systems of finance might now and then not\nexactly coincide, and might require reciprocal forbearances. It is not,\nhowever a mere possibility of inconvenience in the exercise of powers,\nbut an immediate constitutional repugnancy that can by implication\nalienate and extinguish a pre-existing right of sovereignty.\n\nThe necessity of a concurrent jurisdiction in certain cases results from\nthe division of the sovereign power; and the rule that all authorities,\nof which the States are not explicitly divested in favor of the Union,\nremain with them in full vigor, is not a theoretical consequence of that\ndivision, but is clearly admitted by the whole tenor of the instrument\nwhich contains the articles of the proposed Constitution. We there find\nthat, notwithstanding the affirmative grants of general authorities,\nthere has been the most pointed care in those cases where it was deemed\nimproper that the like authorities should reside in the States, to\ninsert negative clauses prohibiting the exercise of them by the States.\nThe tenth section of the first article consists altogether of such\nprovisions. This circumstance is a clear indication of the sense of the\nconvention, and furnishes a rule of interpretation out of the body of\nthe act, which justifies the position I have advanced and refutes every\nhypothesis to the contrary.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 33\n\nThe Same Subject Continued (Concerning the General Power of Taxation)\n\nFrom The Independent Journal. Wednesday, January 2, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE residue of the argument against the provisions of the Constitution\nin respect to taxation is ingrafted upon the following clause. The last\nclause of the eighth section of the first article of the plan under\nconsideration authorizes the national legislature \"to make all laws\nwhich shall be NECESSARY and PROPER for carrying into execution THE\nPOWERS by that Constitution vested in the government of the United\nStates, or in any department or officer thereof\"; and the second clause\nof the sixth article declares, \"that the Constitution and the laws of\nthe United States made IN PURSUANCE THEREOF, and the treaties made by\ntheir authority shall be the SUPREME LAW of the land, any thing in the\nconstitution or laws of any State to the contrary notwithstanding.\"\n\nThese two clauses have been the source of much virulent invective and\npetulant declamation against the proposed Constitution. They have been\nheld up to the people in all the exaggerated colors of misrepresentation\nas the pernicious engines by which their local governments were to be\ndestroyed and their liberties exterminated; as the hideous monster whose\ndevouring jaws would spare neither sex nor age, nor high nor low, nor\nsacred nor profane; and yet, strange as it may appear, after all this\nclamor, to those who may not have happened to contemplate them in\nthe same light, it may be affirmed with perfect confidence that the\nconstitutional operation of the intended government would be precisely\nthe same, if these clauses were entirely obliterated, as if they were\nrepeated in every article. They are only declaratory of a truth which\nwould have resulted by necessary and unavoidable implication from the\nvery act of constituting a federal government, and vesting it with\ncertain specified powers. This is so clear a proposition, that\nmoderation itself can scarcely listen to the railings which have been\nso copiously vented against this part of the plan, without emotions that\ndisturb its equanimity.\n\nWhat is a power, but the ability or faculty of doing a thing? What\nis the ability to do a thing, but the power of employing the MEANS\nnecessary to its execution? What is a LEGISLATIVE power, but a power of\nmaking LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS?\nWhat is the power of laying and collecting taxes, but a LEGISLATIVE\nPOWER, or a power of MAKING LAWS, to lay and collect taxes? What are the\nproper means of executing such a power, but NECESSARY and PROPER laws?\n\nThis simple train of inquiry furnishes us at once with a test by which\nto judge of the true nature of the clause complained of. It conducts us\nto this palpable truth, that a power to lay and collect taxes must be\na power to pass all laws NECESSARY and PROPER for the execution of\nthat power; and what does the unfortunate and calumniated provision in\nquestion do more than declare the same truth, to wit, that the national\nlegislature, to whom the power of laying and collecting taxes had been\npreviously given, might, in the execution of that power, pass all laws\nNECESSARY and PROPER to carry it into effect? I have applied these\nobservations thus particularly to the power of taxation, because it is\nthe immediate subject under consideration, and because it is the most\nimportant of the authorities proposed to be conferred upon the Union.\nBut the same process will lead to the same result, in relation to\nall other powers declared in the Constitution. And it is EXPRESSLY to\nexecute these powers that the sweeping clause, as it has been affectedly\ncalled, authorizes the national legislature to pass all NECESSARY and\nPROPER laws. If there is any thing exceptionable, it must be sought\nfor in the specific powers upon which this general declaration is\npredicated. The declaration itself, though it may be chargeable with\ntautology or redundancy, is at least perfectly harmless.\n\nBut SUSPICION may ask, Why then was it introduced? The answer is, that\nit could only have been done for greater caution, and to guard\nagainst all cavilling refinements in those who might hereafter feel\na disposition to curtail and evade the legitimate authorities of the\nUnion. The Convention probably foresaw, what it has been a principal aim\nof these papers to inculcate, that the danger which most threatens our\npolitical welfare is that the State governments will finally sap the\nfoundations of the Union; and might therefore think it necessary, in so\ncardinal a point, to leave nothing to construction. Whatever may have\nbeen the inducement to it, the wisdom of the precaution is evident from\nthe cry which has been raised against it; as that very cry betrays\na disposition to question the great and essential truth which it is\nmanifestly the object of that provision to declare.\n\nBut it may be again asked, Who is to judge of the NECESSITY and\nPROPRIETY of the laws to be passed for executing the powers of the\nUnion? I answer, first, that this question arises as well and as fully\nupon the simple grant of those powers as upon the declaratory clause;\nand I answer, in the second place, that the national government, like\nevery other, must judge, in the first instance, of the proper exercise\nof its powers, and its constituents in the last. If the federal\ngovernment should overpass the just bounds of its authority and make\na tyrannical use of its powers, the people, whose creature it is, must\nappeal to the standard they have formed, and take such measures to\nredress the injury done to the Constitution as the exigency may suggest\nand prudence justify. The propriety of a law, in a constitutional light,\nmust always be determined by the nature of the powers upon which it is\nfounded. Suppose, by some forced constructions of its authority (which,\nindeed, cannot easily be imagined), the Federal legislature should\nattempt to vary the law of descent in any State, would it not be evident\nthat, in making such an attempt, it had exceeded its jurisdiction, and\ninfringed upon that of the State? Suppose, again, that upon the pretense\nof an interference with its revenues, it should undertake to abrogate\na landtax imposed by the authority of a State; would it not be equally\nevident that this was an invasion of that concurrent jurisdiction in\nrespect to this species of tax, which its Constitution plainly supposes\nto exist in the State governments? If there ever should be a doubt on\nthis head, the credit of it will be entirely due to those reasoners who,\nin the imprudent zeal of their animosity to the plan of the convention,\nhave labored to envelop it in a cloud calculated to obscure the plainest\nand simplest truths.\n\nBut it is said that the laws of the Union are to be the SUPREME LAW of\nthe land. But what inference can be drawn from this, or what would they\namount to, if they were not to be supreme? It is evident they would\namount to nothing. A LAW, by the very meaning of the term, includes\nsupremacy. It is a rule which those to whom it is prescribed are\nbound to observe. This results from every political association. If\nindividuals enter into a state of society, the laws of that society\nmust be the supreme regulator of their conduct. If a number of political\nsocieties enter into a larger political society, the laws which\nthe latter may enact, pursuant to the powers intrusted to it by its\nconstitution, must necessarily be supreme over those societies, and\nthe individuals of whom they are composed. It would otherwise be a mere\ntreaty, dependent on the good faith of the parties, and not a government,\nwhich is only another word for POLITICAL POWER AND SUPREMACY. But it\nwill not follow from this doctrine that acts of the large society which\nare NOT PURSUANT to its constitutional powers, but which are invasions\nof the residuary authorities of the smaller societies, will become the\nsupreme law of the land. These will be merely acts of usurpation, and\nwill deserve to be treated as such. Hence we perceive that the clause\nwhich declares the supremacy of the laws of the Union, like the one\nwe have just before considered, only declares a truth, which flows\nimmediately and necessarily from the institution of a federal\ngovernment. It will not, I presume, have escaped observation, that\nit EXPRESSLY confines this supremacy to laws made PURSUANT TO THE\nCONSTITUTION; which I mention merely as an instance of caution in the\nconvention; since that limitation would have been to be understood,\nthough it had not been expressed.\n\nThough a law, therefore, laying a tax for the use of the United States\nwould be supreme in its nature, and could not legally be opposed or\ncontrolled, yet a law for abrogating or preventing the collection of\na tax laid by the authority of the State, (unless upon imports and\nexports), would not be the supreme law of the land, but a usurpation\nof power not granted by the Constitution. As far as an improper\naccumulation of taxes on the same object might tend to render\nthe collection difficult or precarious, this would be a mutual\ninconvenience, not arising from a superiority or defect of power on\neither side, but from an injudicious exercise of power by one or the\nother, in a manner equally disadvantageous to both. It is to be hoped\nand presumed, however, that mutual interest would dictate a concert in\nthis respect which would avoid any material inconvenience. The inference\nfrom the whole is, that the individual States would, under the proposed\nConstitution, retain an independent and uncontrollable authority to\nraise revenue to any extent of which they may stand in need, by every\nkind of taxation, except duties on imports and exports. It will be shown\nin the next paper that this CONCURRENT JURISDICTION in the article of\ntaxation was the only admissible substitute for an entire subordination,\nin respect to this branch of power, of the State authority to that of\nthe Union.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 34\n\nThe Same Subject Continued (Concerning the General Power of Taxation)\n\nFrom The Independent Journal. Saturday, January 5, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nI FLATTER myself it has been clearly shown in my last number that the\nparticular States, under the proposed Constitution, would have COEQUAL\nauthority with the Union in the article of revenue, except as to duties\non imports. As this leaves open to the States far the greatest part of\nthe resources of the community, there can be no color for the assertion\nthat they would not possess means as abundant as could be desired for\nthe supply of their own wants, independent of all external control. That\nthe field is sufficiently wide will more fully appear when we come to\nadvert to the inconsiderable share of the public expenses for which it\nwill fall to the lot of the State governments to provide.\n\nTo argue upon abstract principles that this co-ordinate authority cannot\nexist, is to set up supposition and theory against fact and reality.\nHowever proper such reasonings might be to show that a thing OUGHT NOT\nTO EXIST, they are wholly to be rejected when they are made use of\nto prove that it does not exist contrary to the evidence of the fact\nitself. It is well known that in the Roman republic the legislative\nauthority, in the last resort, resided for ages in two different\npolitical bodies not as branches of the same legislature, but as\ndistinct and independent legislatures, in each of which an opposite\ninterest prevailed: in one the patrician; in the other, the plebian.\nMany arguments might have been adduced to prove the unfitness of two\nsuch seemingly contradictory authorities, each having power to ANNUL\nor REPEAL the acts of the other. But a man would have been regarded as\nfrantic who should have attempted at Rome to disprove their existence.\nIt will be readily understood that I allude to the COMITIA CENTURIATA\nand the COMITIA TRIBUTA. The former, in which the people voted by\ncenturies, was so arranged as to give a superiority to the patrician\ninterest; in the latter, in which numbers prevailed, the plebian\ninterest had an entire predominancy. And yet these two legislatures\ncoexisted for ages, and the Roman republic attained to the utmost height\nof human greatness.\n\nIn the case particularly under consideration, there is no such\ncontradiction as appears in the example cited; there is no power on\neither side to annul the acts of the other. And in practice there is\nlittle reason to apprehend any inconvenience; because, in a short course\nof time, the wants of the States will naturally reduce themselves within\nA VERY NARROW COMPASS; and in the interim, the United States will, in\nall probability, find it convenient to abstain wholly from those objects\nto which the particular States would be inclined to resort.\n\nTo form a more precise judgment of the true merits of this question, it\nwill be well to advert to the proportion between the objects that will\nrequire a federal provision in respect to revenue, and those which\nwill require a State provision. We shall discover that the former are\naltogether unlimited, and that the latter are circumscribed within very\nmoderate bounds. In pursuing this inquiry, we must bear in mind that we\nare not to confine our view to the present period, but to look forward\nto remote futurity. Constitutions of civil government are not to be\nframed upon a calculation of existing exigencies, but upon a combination\nof these with the probable exigencies of ages, according to the natural\nand tried course of human affairs. Nothing, therefore, can be more\nfallacious than to infer the extent of any power, proper to be lodged in\nthe national government, from an estimate of its immediate necessities.\nThere ought to be a CAPACITY to provide for future contingencies as\nthey may happen; and as these are illimitable in their nature, it is\nimpossible safely to limit that capacity. It is true, perhaps, that a\ncomputation might be made with sufficient accuracy to answer the\npurpose of the quantity of revenue requisite to discharge the subsisting\nengagements of the Union, and to maintain those establishments which,\nfor some time to come, would suffice in time of peace. But would it be\nwise, or would it not rather be the extreme of folly, to stop at this\npoint, and to leave the government intrusted with the care of the\nnational defense in a state of absolute incapacity to provide for the\nprotection of the community against future invasions of the public\npeace, by foreign war or domestic convulsions? If, on the contrary, we\nought to exceed this point, where can we stop, short of an indefinite\npower of providing for emergencies as they may arise? Though it is\neasy to assert, in general terms, the possibility of forming a rational\njudgment of a due provision against probable dangers, yet we may safely\nchallenge those who make the assertion to bring forward their data, and\nmay affirm that they would be found as vague and uncertain as any that\ncould be produced to establish the probable duration of the world.\nObservations confined to the mere prospects of internal attacks can\ndeserve no weight; though even these will admit of no satisfactory\ncalculation: but if we mean to be a commercial people, it must form\na part of our policy to be able one day to defend that commerce. The\nsupport of a navy and of naval wars would involve contingencies that\nmust baffle all the efforts of political arithmetic.\n\nAdmitting that we ought to try the novel and absurd experiment in\npolitics of tying up the hands of government from offensive war founded\nupon reasons of state, yet certainly we ought not to disable it from\nguarding the community against the ambition or enmity of other nations.\nA cloud has been for some time hanging over the European world. If it\nshould break forth into a storm, who can insure us that in its progress\na part of its fury would not be spent upon us? No reasonable man would\nhastily pronounce that we are entirely out of its reach. Or if\nthe combustible materials that now seem to be collecting should be\ndissipated without coming to maturity, or if a flame should be kindled\nwithout extending to us, what security can we have that our tranquillity\nwill long remain undisturbed from some other cause or from some other\nquarter? Let us recollect that peace or war will not always be left to\nour option; that however moderate or unambitious we may be, we cannot\ncount upon the moderation, or hope to extinguish the ambition of others.\nWho could have imagined at the conclusion of the last war that France\nand Britain, wearied and exhausted as they both were, would so soon\nhave looked with so hostile an aspect upon each other? To judge from the\nhistory of mankind, we shall be compelled to conclude that the fiery\nand destructive passions of war reign in the human breast with much more\npowerful sway than the mild and beneficent sentiments of peace; and\nthat to model our political systems upon speculations of lasting\ntranquillity, is to calculate on the weaker springs of the human\ncharacter.\n\nWhat are the chief sources of expense in every government? What has\noccasioned that enormous accumulation of debts with which several of\nthe European nations are oppressed? The answers plainly is, wars and\nrebellions; the support of those institutions which are necessary\nto guard the body politic against these two most mortal diseases of\nsociety. The expenses arising from those institutions which are\nrelative to the mere domestic police of a state, to the support of its\nlegislative, executive, and judicial departments, with their different\nappendages, and to the encouragement of agriculture and manufactures\n(which will comprehend almost all the objects of state expenditure),\nare insignificant in comparison with those which relate to the national\ndefense.\n\nIn the kingdom of Great Britain, where all the ostentatious apparatus of\nmonarchy is to be provided for, not above a fifteenth part of the annual\nincome of the nation is appropriated to the class of expenses last\nmentioned; the other fourteen fifteenths are absorbed in the payment of\nthe interest of debts contracted for carrying on the wars in which that\ncountry has been engaged, and in the maintenance of fleets and armies.\nIf, on the one hand, it should be observed that the expenses incurred in\nthe prosecution of the ambitious enterprises and vainglorious pursuits\nof a monarchy are not a proper standard by which to judge of those which\nmight be necessary in a republic, it ought, on the other hand, to be\nremarked that there should be as great a disproportion between the\nprofusion and extravagance of a wealthy kingdom in its domestic\nadministration, and the frugality and economy which in that particular\nbecome the modest simplicity of republican government. If we balance a\nproper deduction from one side against that which it is supposed ought\nto be made from the other, the proportion may still be considered as\nholding good.\n\nBut let us advert to the large debt which we have ourselves contracted\nin a single war, and let us only calculate on a common share of the\nevents which disturb the peace of nations, and we shall instantly\nperceive, without the aid of any elaborate illustration, that there must\nalways be an immense disproportion between the objects of federal and\nstate expenditures. It is true that several of the States, separately,\nare encumbered with considerable debts, which are an excrescence of\nthe late war. But this cannot happen again, if the proposed system be\nadopted; and when these debts are discharged, the only call for revenue\nof any consequence, which the State governments will continue to\nexperience, will be for the mere support of their respective civil list;\nto which, if we add all contingencies, the total amount in every State\nought to fall considerably short of two hundred thousand pounds.\n\nIn framing a government for posterity as well as ourselves, we ought, in\nthose provisions which are designed to be permanent, to calculate, not\non temporary, but on permanent causes of expense. If this principle be a\njust one our attention would be directed to a provision in favor of\nthe State governments for an annual sum of about two hundred thousand\npounds; while the exigencies of the Union could be susceptible of no\nlimits, even in imagination. In this view of the subject, by what logic\ncan it be maintained that the local governments ought to command, in\nperpetuity, an EXCLUSIVE source of revenue for any sum beyond the\nextent of two hundred thousand pounds? To extend its power further, in\nEXCLUSION of the authority of the Union, would be to take the resources\nof the community out of those hands which stood in need of them for the\npublic welfare, in order to put them into other hands which could have\nno just or proper occasion for them.\n\nSuppose, then, the convention had been inclined to proceed upon the\nprinciple of a repartition of the objects of revenue, between the Union\nand its members, in PROPORTION to their comparative necessities; what\nparticular fund could have been selected for the use of the States, that\nwould not either have been too much or too little too little for their\npresent, too much for their future wants? As to the line of separation\nbetween external and internal taxes, this would leave to the States, at\na rough computation, the command of two thirds of the resources of the\ncommunity to defray from a tenth to a twentieth part of its expenses;\nand to the Union, one third of the resources of the community, to defray\nfrom nine tenths to nineteen twentieths of its expenses. If we desert\nthis boundary and content ourselves with leaving to the States an\nexclusive power of taxing houses and lands, there would still be a great\ndisproportion between the MEANS and the END; the possession of one third\nof the resources of the community to supply, at most, one tenth of its\nwants. If any fund could have been selected and appropriated, equal to\nand not greater than the object, it would have been inadequate to the\ndischarge of the existing debts of the particular States, and would have\nleft them dependent on the Union for a provision for this purpose.\n\nThe preceding train of observation will justify the position which has\nbeen elsewhere laid down, that \"A CONCURRENT JURISDICTION in the\narticle of taxation was the only admissible substitute for an entire\nsubordination, in respect to this branch of power, of State authority to\nthat of the Union.\" Any separation of the objects of revenue that could\nhave been fallen upon, would have amounted to a sacrifice of the great\nINTERESTS of the Union to the POWER of the individual States. The\nconvention thought the concurrent jurisdiction preferable to that\nsubordination; and it is evident that it has at least the merit of\nreconciling an indefinite constitutional power of taxation in the\nFederal government with an adequate and independent power in the States\nto provide for their own necessities. There remain a few other lights,\nin which this important subject of taxation will claim a further\nconsideration.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 35\n\nThe Same Subject Continued (Concerning the General Power of Taxation)\n\nFor the Independent Journal. Saturday, January 5, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nBEFORE we proceed to examine any other objections to an indefinite power\nof taxation in the Union, I shall make one general remark; which is,\nthat if the jurisdiction of the national government, in the article of\nrevenue, should be restricted to particular objects, it would naturally\noccasion an undue proportion of the public burdens to fall upon those\nobjects. Two evils would spring from this source: the oppression of\nparticular branches of industry; and an unequal distribution of the\ntaxes, as well among the several States as among the citizens of the\nsame State.\n\nSuppose, as has been contended for, the federal power of taxation were\nto be confined to duties on imports, it is evident that the government,\nfor want of being able to command other resources, would frequently be\ntempted to extend these duties to an injurious excess. There are persons\nwho imagine that they can never be carried to too great a length; since\nthe higher they are, the more it is alleged they will tend to discourage\nan extravagant consumption, to produce a favorable balance of trade,\nand to promote domestic manufactures. But all extremes are pernicious\nin various ways. Exorbitant duties on imported articles would beget a\ngeneral spirit of smuggling; which is always prejudicial to the fair\ntrader, and eventually to the revenue itself: they tend to render\nother classes of the community tributary, in an improper degree, to the\nmanufacturing classes, to whom they give a premature monopoly of the\nmarkets; they sometimes force industry out of its more natural channels\ninto others in which it flows with less advantage; and in the last\nplace, they oppress the merchant, who is often obliged to pay them\nhimself without any retribution from the consumer. When the demand is\nequal to the quantity of goods at market, the consumer generally\npays the duty; but when the markets happen to be overstocked, a great\nproportion falls upon the merchant, and sometimes not only exhausts\nhis profits, but breaks in upon his capital. I am apt to think that\na division of the duty, between the seller and the buyer, more often\nhappens than is commonly imagined. It is not always possible to raise\nthe price of a commodity in exact proportion to every additional\nimposition laid upon it. The merchant, especially in a country of small\ncommercial capital, is often under a necessity of keeping prices down in\norder to a more expeditious sale.\n\nThe maxim that the consumer is the payer, is so much oftener true than\nthe reverse of the proposition, that it is far more equitable that the\nduties on imports should go into a common stock, than that they should\nredound to the exclusive benefit of the importing States. But it is not\nso generally true as to render it equitable, that those duties should\nform the only national fund. When they are paid by the merchant they\noperate as an additional tax upon the importing State, whose citizens\npay their proportion of them in the character of consumers. In this view\nthey are productive of inequality among the States; which inequality\nwould be increased with the increased extent of the duties. The\nconfinement of the national revenues to this species of imposts would\nbe attended with inequality, from a different cause, between the\nmanufacturing and the non-manufacturing States. The States which can\ngo farthest towards the supply of their own wants, by their own\nmanufactures, will not, according to their numbers or wealth, consume so\ngreat a proportion of imported articles as those States which are not\nin the same favorable situation. They would not, therefore, in this mode\nalone contribute to the public treasury in a ratio to their abilities.\nTo make them do this it is necessary that recourse be had to excises,\nthe proper objects of which are particular kinds of manufactures. New\nYork is more deeply interested in these considerations than such of\nher citizens as contend for limiting the power of the Union to external\ntaxation may be aware of. New York is an importing State, and is not\nlikely speedily to be, to any great extent, a manufacturing State.\nShe would, of course, suffer in a double light from restraining the\njurisdiction of the Union to commercial imposts.\n\nSo far as these observations tend to inculcate a danger of the import\nduties being extended to an injurious extreme it may be observed,\nconformably to a remark made in another part of these papers, that the\ninterest of the revenue itself would be a sufficient guard against such\nan extreme. I readily admit that this would be the case, as long as\nother resources were open; but if the avenues to them were closed, HOPE,\nstimulated by necessity, would beget experiments, fortified by rigorous\nprecautions and additional penalties, which, for a time, would have the\nintended effect, till there had been leisure to contrive expedients to\nelude these new precautions. The first success would be apt to inspire\nfalse opinions, which it might require a long course of subsequent\nexperience to correct. Necessity, especially in politics, often\noccasions false hopes, false reasonings, and a system of measures\ncorrespondingly erroneous. But even if this supposed excess should not\nbe a consequence of the limitation of the federal power of taxation, the\ninequalities spoken of would still ensue, though not in the same degree,\nfrom the other causes that have been noticed. Let us now return to the\nexamination of objections.\n\nOne which, if we may judge from the frequency of its repetition, seems\nmost to be relied on, is, that the House of Representatives is not\nsufficiently numerous for the reception of all the different classes of\ncitizens, in order to combine the interests and feelings of every\npart of the community, and to produce a due sympathy between the\nrepresentative body and its constituents. This argument presents itself\nunder a very specious and seducing form; and is well calculated to lay\nhold of the prejudices of those to whom it is addressed. But when we\ncome to dissect it with attention, it will appear to be made up of\nnothing but fair-sounding words. The object it seems to aim at is,\nin the first place, impracticable, and in the sense in which it\nis contended for, is unnecessary. I reserve for another place the\ndiscussion of the question which relates to the sufficiency of the\nrepresentative body in respect to numbers, and shall content myself\nwith examining here the particular use which has been made of a contrary\nsupposition, in reference to the immediate subject of our inquiries.\n\nThe idea of an actual representation of all classes of the people, by\npersons of each class, is altogether visionary. Unless it were expressly\nprovided in the Constitution, that each different occupation should\nsend one or more members, the thing would never take place in\npractice. Mechanics and manufacturers will always be inclined, with few\nexceptions, to give their votes to merchants, in preference to persons\nof their own professions or trades. Those discerning citizens are well\naware that the mechanic and manufacturing arts furnish the materials\nof mercantile enterprise and industry. Many of them, indeed, are\nimmediately connected with the operations of commerce. They know that\nthe merchant is their natural patron and friend; and they are aware,\nthat however great the confidence they may justly feel in their own good\nsense, their interests can be more effectually promoted by the merchant\nthan by themselves. They are sensible that their habits in life have not\nbeen such as to give them those acquired endowments, without which, in\na deliberative assembly, the greatest natural abilities are for the\nmost part useless; and that the influence and weight, and superior\nacquirements of the merchants render them more equal to a contest with\nany spirit which might happen to infuse itself into the public\ncouncils, unfriendly to the manufacturing and trading interests. These\nconsiderations, and many others that might be mentioned prove, and\nexperience confirms it, that artisans and manufacturers will commonly\nbe disposed to bestow their votes upon merchants and those whom\nthey recommend. We must therefore consider merchants as the natural\nrepresentatives of all these classes of the community.\n\nWith regard to the learned professions, little need be observed; they\ntruly form no distinct interest in society, and according to their\nsituation and talents, will be indiscriminately the objects of\nthe confidence and choice of each other, and of other parts of the\ncommunity.\n\nNothing remains but the landed interest; and this, in a political view,\nand particularly in relation to taxes, I take to be perfectly united,\nfrom the wealthiest landlord down to the poorest tenant. No tax can be\nlaid on land which will not affect the proprietor of millions of acres\nas well as the proprietor of a single acre. Every landholder will\ntherefore have a common interest to keep the taxes on land as low as\npossible; and common interest may always be reckoned upon as the surest\nbond of sympathy. But if we even could suppose a distinction of interest\nbetween the opulent landholder and the middling farmer, what reason is\nthere to conclude, that the first would stand a better chance of being\ndeputed to the national legislature than the last? If we take fact as\nour guide, and look into our own senate and assembly, we shall find that\nmoderate proprietors of land prevail in both; nor is this less the case\nin the senate, which consists of a smaller number, than in the assembly,\nwhich is composed of a greater number. Where the qualifications of the\nelectors are the same, whether they have to choose a small or a\nlarge number, their votes will fall upon those in whom they have most\nconfidence; whether these happen to be men of large fortunes, or of\nmoderate property, or of no property at all.\n\nIt is said to be necessary, that all classes of citizens should have\nsome of their own number in the representative body, in order that their\nfeelings and interests may be the better understood and attended to.\nBut we have seen that this will never happen under any arrangement\nthat leaves the votes of the people free. Where this is the case, the\nrepresentative body, with too few exceptions to have any influence\non the spirit of the government, will be composed of landholders,\nmerchants, and men of the learned professions. But where is the danger\nthat the interests and feelings of the different classes of citizens\nwill not be understood or attended to by these three descriptions of\nmen? Will not the landholder know and feel whatever will promote or\ninsure the interest of landed property? And will he not, from his own\ninterest in that species of property, be sufficiently prone to resist\nevery attempt to prejudice or encumber it? Will not the merchant\nunderstand and be disposed to cultivate, as far as may be proper, the\ninterests of the mechanic and manufacturing arts, to which his commerce\nis so nearly allied? Will not the man of the learned profession, who\nwill feel a neutrality to the rivalships between the different branches\nof industry, be likely to prove an impartial arbiter between them, ready\nto promote either, so far as it shall appear to him conducive to the\ngeneral interests of the society?\n\nIf we take into the account the momentary humors or dispositions which\nmay happen to prevail in particular parts of the society, and to which\na wise administration will never be inattentive, is the man whose\nsituation leads to extensive inquiry and information less likely to be\na competent judge of their nature, extent, and foundation than one\nwhose observation does not travel beyond the circle of his neighbors and\nacquaintances? Is it not natural that a man who is a candidate for\nthe favor of the people, and who is dependent on the suffrages of his\nfellow-citizens for the continuance of his public honors, should take\ncare to inform himself of their dispositions and inclinations, and\nshould be willing to allow them their proper degree of influence upon\nhis conduct? This dependence, and the necessity of being bound himself,\nand his posterity, by the laws to which he gives his assent, are\nthe true, and they are the strong chords of sympathy between the\nrepresentative and the constituent.\n\nThere is no part of the administration of government that requires\nextensive information and a thorough knowledge of the principles of\npolitical economy, so much as the business of taxation. The man who\nunderstands those principles best will be least likely to resort to\noppressive expedients, or sacrifice any particular class of citizens\nto the procurement of revenue. It might be demonstrated that the most\nproductive system of finance will always be the least burdensome. There\ncan be no doubt that in order to a judicious exercise of the power of\ntaxation, it is necessary that the person in whose hands it should be\nacquainted with the general genius, habits, and modes of thinking of the\npeople at large, and with the resources of the country. And this is\nall that can be reasonably meant by a knowledge of the interests and\nfeelings of the people. In any other sense the proposition has either\nno meaning, or an absurd one. And in that sense let every considerate\ncitizen judge for himself where the requisite qualification is most\nlikely to be found.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 36\n\nThe Same Subject Continued (Concerning the General Power of Taxation)\n\nFrom the New York Packet. Tuesday, January 8, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nWE HAVE seen that the result of the observations, to which the foregoing\nnumber has been principally devoted, is, that from the natural operation\nof the different interests and views of the various classes of the\ncommunity, whether the representation of the people be more or less\nnumerous, it will consist almost entirely of proprietors of land, of\nmerchants, and of members of the learned professions, who will truly\nrepresent all those different interests and views. If it should be\nobjected that we have seen other descriptions of men in the local\nlegislatures, I answer that it is admitted there are exceptions to the\nrule, but not in sufficient number to influence the general complexion\nor character of the government. There are strong minds in every walk of\nlife that will rise superior to the disadvantages of situation, and will\ncommand the tribute due to their merit, not only from the classes to\nwhich they particularly belong, but from the society in general. The\ndoor ought to be equally open to all; and I trust, for the credit\nof human nature, that we shall see examples of such vigorous plants\nflourishing in the soil of federal as well as of State legislation; but\noccasional instances of this sort will not render the reasoning founded\nupon the general course of things, less conclusive.\n\nThe subject might be placed in several other lights that would all lead\nto the same result; and in particular it might be asked, What greater\naffinity or relation of interest can be conceived between the carpenter\nand blacksmith, and the linen manufacturer or stocking weaver, than\nbetween the merchant and either of them? It is notorious that there are\noften as great rivalships between different branches of the mechanic or\nmanufacturing arts as there are between any of the departments of labor\nand industry; so that, unless the representative body were to be far\nmore numerous than would be consistent with any idea of regularity or\nwisdom in its deliberations, it is impossible that what seems to be the\nspirit of the objection we have been considering should ever be realized\nin practice. But I forbear to dwell any longer on a matter which has\nhitherto worn too loose a garb to admit even of an accurate inspection\nof its real shape or tendency.\n\nThere is another objection of a somewhat more precise nature that claims\nour attention. It has been asserted that a power of internal taxation\nin the national legislature could never be exercised with advantage, as\nwell from the want of a sufficient knowledge of local circumstances, as\nfrom an interference between the revenue laws of the Union and of the\nparticular States. The supposition of a want of proper knowledge seems\nto be entirely destitute of foundation. If any question is depending\nin a State legislature respecting one of the counties, which demands\na knowledge of local details, how is it acquired? No doubt from the\ninformation of the members of the county. Cannot the like knowledge be\nobtained in the national legislature from the representatives of each\nState? And is it not to be presumed that the men who will generally be\nsent there will be possessed of the necessary degree of intelligence\nto be able to communicate that information? Is the knowledge of\nlocal circumstances, as applied to taxation, a minute topographical\nacquaintance with all the mountains, rivers, streams, highways,\nand bypaths in each State; or is it a general acquaintance with its\nsituation and resources, with the state of its agriculture, commerce,\nmanufactures, with the nature of its products and consumptions, with the\ndifferent degrees and kinds of its wealth, property, and industry?\n\nNations in general, even under governments of the more popular kind,\nusually commit the administration of their finances to single men or\nto boards composed of a few individuals, who digest and prepare, in the\nfirst instance, the plans of taxation, which are afterwards passed into\nlaws by the authority of the sovereign or legislature.\n\nInquisitive and enlightened statesmen are deemed everywhere best\nqualified to make a judicious selection of the objects proper for\nrevenue; which is a clear indication, as far as the sense of mankind\ncan have weight in the question, of the species of knowledge of local\ncircumstances requisite to the purposes of taxation.\n\nThe taxes intended to be comprised under the general denomination of\ninternal taxes may be subdivided into those of the DIRECT and those\nof the INDIRECT kind. Though the objection be made to both, yet the\nreasoning upon it seems to be confined to the former branch. And indeed,\nas to the latter, by which must be understood duties and excises on\narticles of consumption, one is at a loss to conceive what can be the\nnature of the difficulties apprehended. The knowledge relating to them\nmust evidently be of a kind that will either be suggested by the nature\nof the article itself, or can easily be procured from any well-informed\nman, especially of the mercantile class. The circumstances that may\ndistinguish its situation in one State from its situation in another\nmust be few, simple, and easy to be comprehended. The principal thing\nto be attended to, would be to avoid those articles which had been\npreviously appropriated to the use of a particular State; and there\ncould be no difficulty in ascertaining the revenue system of each. This\ncould always be known from the respective codes of laws, as well as from\nthe information of the members from the several States.\n\nThe objection, when applied to real property or to houses and lands,\nappears to have, at first sight, more foundation, but even in this view\nit will not bear a close examination. Land taxes are commonly laid in\none of two modes, either by ACTUAL valuations, permanent or periodical,\nor by OCCASIONAL assessments, at the discretion, or according to the\nbest judgment, of certain officers whose duty it is to make them. In\neither case, the EXECUTION of the business, which alone requires the\nknowledge of local details, must be devolved upon discreet persons in\nthe character of commissioners or assessors, elected by the people or\nappointed by the government for the purpose. All that the law can do\nmust be to name the persons or to prescribe the manner of their election\nor appointment, to fix their numbers and qualifications and to draw the\ngeneral outlines of their powers and duties. And what is there in all\nthis that cannot as well be performed by the national legislature as by\na State legislature? The attention of either can only reach to general\nprinciples; local details, as already observed, must be referred to\nthose who are to execute the plan.\n\nBut there is a simple point of view in which this matter may be placed\nthat must be altogether satisfactory. The national legislature can make\nuse of the SYSTEM OF EACH STATE WITHIN THAT STATE. The method of laying\nand collecting this species of taxes in each State can, in all its\nparts, be adopted and employed by the federal government.\n\nLet it be recollected that the proportion of these taxes is not to\nbe left to the discretion of the national legislature, but is to be\ndetermined by the numbers of each State, as described in the second\nsection of the first article. An actual census or enumeration of the\npeople must furnish the rule, a circumstance which effectually shuts the\ndoor to partiality or oppression. The abuse of this power of taxation\nseems to have been provided against with guarded circumspection. In\naddition to the precaution just mentioned, there is a provision that\n\"all duties, imposts, and excises shall be UNIFORM throughout the United\nStates.\"\n\nIt has been very properly observed by different speakers and writers\non the side of the Constitution, that if the exercise of the power of\ninternal taxation by the Union should be discovered on experiment to be\nreally inconvenient, the federal government may then forbear the use of\nit, and have recourse to requisitions in its stead. By way of answer to\nthis, it has been triumphantly asked, Why not in the first instance\nomit that ambiguous power, and rely upon the latter resource? Two solid\nanswers may be given. The first is, that the exercise of that power, if\nconvenient, will be preferable, because it will be more effectual;\nand it is impossible to prove in theory, or otherwise than by the\nexperiment, that it cannot be advantageously exercised. The contrary,\nindeed, appears most probable. The second answer is, that the existence\nof such a power in the Constitution will have a strong influence in\ngiving efficacy to requisitions. When the States know that the Union\ncan apply itself without their agency, it will be a powerful motive for\nexertion on their part.\n\nAs to the interference of the revenue laws of the Union, and of\nits members, we have already seen that there can be no clashing or\nrepugnancy of authority. The laws cannot, therefore, in a legal sense,\ninterfere with each other; and it is far from impossible to avoid an\ninterference even in the policy of their different systems. An effectual\nexpedient for this purpose will be, mutually, to abstain from those\nobjects which either side may have first had recourse to. As neither can\nCONTROL the other, each will have an obvious and sensible interest in\nthis reciprocal forbearance. And where there is an IMMEDIATE common\ninterest, we may safely count upon its operation. When the particular\ndebts of the States are done away, and their expenses come to be limited\nwithin their natural compass, the possibility almost of interference\nwill vanish. A small land tax will answer the purpose of the States, and\nwill be their most simple and most fit resource.\n\nMany spectres have been raised out of this power of internal taxation,\nto excite the apprehensions of the people: double sets of revenue\nofficers, a duplication of their burdens by double taxations, and the\nfrightful forms of odious and oppressive poll-taxes, have been played\noff with all the ingenious dexterity of political legerdemain.\n\nAs to the first point, there are two cases in which there can be no room\nfor double sets of officers: one, where the right of imposing the tax is\nexclusively vested in the Union, which applies to the duties on imports;\nthe other, where the object has not fallen under any State regulation\nor provision, which may be applicable to a variety of objects. In other\ncases, the probability is that the United States will either wholly\nabstain from the objects preoccupied for local purposes, or will make\nuse of the State officers and State regulations for collecting the\nadditional imposition. This will best answer the views of revenue,\nbecause it will save expense in the collection, and will best avoid any\noccasion of disgust to the State governments and to the people. At\nall events, here is a practicable expedient for avoiding such an\ninconvenience; and nothing more can be required than to show that evils\npredicted to not necessarily result from the plan.\n\nAs to any argument derived from a supposed system of influence, it is\na sufficient answer to say that it ought not to be presumed; but the\nsupposition is susceptible of a more precise answer. If such a spirit\nshould infest the councils of the Union, the most certain road to the\naccomplishment of its aim would be to employ the State officers as much\nas possible, and to attach them to the Union by an accumulation of their\nemoluments. This would serve to turn the tide of State influence into\nthe channels of the national government, instead of making federal\ninfluence flow in an opposite and adverse current. But all suppositions\nof this kind are invidious, and ought to be banished from the\nconsideration of the great question before the people. They can answer\nno other end than to cast a mist over the truth.\n\nAs to the suggestion of double taxation, the answer is plain. The wants\nof the Union are to be supplied in one way or another; if to be done by\nthe authority of the federal government, it will not be to be done by\nthat of the State government. The quantity of taxes to be paid by the\ncommunity must be the same in either case; with this advantage, if\nthe provision is to be made by the Union that the capital resource of\ncommercial imposts, which is the most convenient branch of revenue, can\nbe prudently improved to a much greater extent under federal than under\nState regulation, and of course will render it less necessary to recur\nto more inconvenient methods; and with this further advantage, that as\nfar as there may be any real difficulty in the exercise of the power of\ninternal taxation, it will impose a disposition to greater care in the\nchoice and arrangement of the means; and must naturally tend to make it\na fixed point of policy in the national administration to go as far as\nmay be practicable in making the luxury of the rich tributary to the\npublic treasury, in order to diminish the necessity of those impositions\nwhich might create dissatisfaction in the poorer and most numerous\nclasses of the society. Happy it is when the interest which the\ngovernment has in the preservation of its own power, coincides with a\nproper distribution of the public burdens, and tends to guard the least\nwealthy part of the community from oppression!\n\nAs to poll taxes, I, without scruple, confess my disapprobation of them;\nand though they have prevailed from an early period in those States(1)\nwhich have uniformly been the most tenacious of their rights, I\nshould lament to see them introduced into practice under the national\ngovernment. But does it follow because there is a power to lay them that\nthey will actually be laid? Every State in the Union has power to impose\ntaxes of this kind; and yet in several of them they are unknown in\npractice. Are the State governments to be stigmatized as tyrannies,\nbecause they possess this power? If they are not, with what propriety\ncan the like power justify such a charge against the national\ngovernment, or even be urged as an obstacle to its adoption? As little\nfriendly as I am to the species of imposition, I still feel a thorough\nconviction that the power of having recourse to it ought to exist in the\nfederal government. There are certain emergencies of nations, in which\nexpedients, that in the ordinary state of things ought to be forborne,\nbecome essential to the public weal. And the government, from the\npossibility of such emergencies, ought ever to have the option of making\nuse of them. The real scarcity of objects in this country, which may\nbe considered as productive sources of revenue, is a reason peculiar\nto itself, for not abridging the discretion of the national councils\nin this respect. There may exist certain critical and tempestuous\nconjunctures of the State, in which a poll tax may become an inestimable\nresource. And as I know nothing to exempt this portion of the globe\nfrom the common calamities that have befallen other parts of it, I\nacknowledge my aversion to every project that is calculated to disarm\nthe government of a single weapon, which in any possible contingency\nmight be usefully employed for the general defense and security.\n\n(I have now gone through the examination of such of the powers proposed\nto be vested in the United States, which may be considered as having an\nimmediate relation to the energy of the government; and have endeavored\nto answer the principal objections which have been made to them. I have\npassed over in silence those minor authorities, which are either too\ninconsiderable to have been thought worthy of the hostilities of the\nopponents of the Constitution, or of too manifest propriety to admit of\ncontroversy. The mass of judiciary power, however, might have claimed\nan investigation under this head, had it not been for the consideration\nthat its organization and its extent may be more advantageously\nconsidered in connection. This has determined me to refer it to the\nbranch of our inquiries upon which we shall next enter.)(E1)\n\n(I have now gone through the examination of those powers proposed to be\nconferred upon the federal government which relate more peculiarly to\nits energy, and to its efficiency for answering the great and primary\nobjects of union. There are others which, though omitted here, will, in\norder to render the view of the subject more complete, be taken notice\nof under the next head of our inquiries. I flatter myself the progress\nalready made will have sufficed to satisfy the candid and judicious\npart of the community that some of the objections which have been\nmost strenuously urged against the Constitution, and which were\nmost formidable in their first appearance, are not only destitute of\nsubstance, but if they had operated in the formation of the plan, would\nhave rendered it incompetent to the great ends of public happiness and\nnational prosperity. I equally flatter myself that a further and more\ncritical investigation of the system will serve to recommend it still\nmore to every sincere and disinterested advocate for good government\nand will leave no doubt with men of this character of the propriety\nand expediency of adopting it. Happy will it be for ourselves, and more\nhonorable for human nature, if we have wisdom and virtue enough to set\nso glorious an example to mankind!)(E1)\n\nPUBLIUS\n\n1. The New England States.\n\nE1. Two versions of this paragraph appear in different editions.\n\n\n\n\nFEDERALIST No. 37\n\nConcerning the Difficulties of the Convention in Devising a Proper Form\nof Government.\n\nFrom the Daily Advertiser. Friday, January 11, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nIN REVIEWING the defects of the existing Confederation, and showing that\nthey cannot be supplied by a government of less energy than that before\nthe public, several of the most important principles of the latter\nfell of course under consideration. But as the ultimate object of\nthese papers is to determine clearly and fully the merits of this\nConstitution, and the expediency of adopting it, our plan cannot be\ncomplete without taking a more critical and thorough survey of the work\nof the convention, without examining it on all its sides, comparing\nit in all its parts, and calculating its probable effects. That this\nremaining task may be executed under impressions conducive to a just\nand fair result, some reflections must in this place be indulged, which\ncandor previously suggests.\n\nIt is a misfortune, inseparable from human affairs, that public\nmeasures are rarely investigated with that spirit of moderation which\nis essential to a just estimate of their real tendency to advance\nor obstruct the public good; and that this spirit is more apt to be\ndiminished than promoted, by those occasions which require an unusual\nexercise of it. To those who have been led by experience to attend to\nthis consideration, it could not appear surprising, that the act of the\nconvention, which recommends so many important changes and innovations,\nwhich may be viewed in so many lights and relations, and which touches\nthe springs of so many passions and interests, should find or excite\ndispositions unfriendly, both on one side and on the other, to a fair\ndiscussion and accurate judgment of its merits. In some, it has been too\nevident from their own publications, that they have scanned the proposed\nConstitution, not only with a predisposition to censure, but with a\npredetermination to condemn; as the language held by others betrays an\nopposite predetermination or bias, which must render their opinions also\nof little moment in the question. In placing, however, these different\ncharacters on a level, with respect to the weight of their opinions, I\nwish not to insinuate that there may not be a material difference in\nthe purity of their intentions. It is but just to remark in favor of the\nlatter description, that as our situation is universally admitted to be\npeculiarly critical, and to require indispensably that something should\nbe done for our relief, the predetermined patron of what has been\nactually done may have taken his bias from the weight of these\nconsiderations, as well as from considerations of a sinister nature. The\npredetermined adversary, on the other hand, can have been governed by no\nvenial motive whatever. The intentions of the first may be upright, as\nthey may on the contrary be culpable. The views of the last cannot be\nupright, and must be culpable. But the truth is, that these papers are\nnot addressed to persons falling under either of these characters. They\nsolicit the attention of those only, who add to a sincere zeal for the\nhappiness of their country, a temper favorable to a just estimate of the\nmeans of promoting it.\n\nPersons of this character will proceed to an examination of the plan\nsubmitted by the convention, not only without a disposition to find\nor to magnify faults; but will see the propriety of reflecting, that\na faultless plan was not to be expected. Nor will they barely make\nallowances for the errors which may be chargeable on the fallibility to\nwhich the convention, as a body of men, were liable; but will keep in\nmind, that they themselves also are but men, and ought not to assume an\ninfallibility in rejudging the fallible opinions of others.\n\nWith equal readiness will it be perceived, that besides these\ninducements to candor, many allowances ought to be made for the\ndifficulties inherent in the very nature of the undertaking referred to\nthe convention.\n\nThe novelty of the undertaking immediately strikes us. It has been\nshown in the course of these papers, that the existing Confederation is\nfounded on principles which are fallacious; that we must consequently\nchange this first foundation, and with it the superstructure resting\nupon it. It has been shown, that the other confederacies which could\nbe consulted as precedents have been vitiated by the same erroneous\nprinciples, and can therefore furnish no other light than that of\nbeacons, which give warning of the course to be shunned, without\npointing out that which ought to be pursued. The most that the\nconvention could do in such a situation, was to avoid the errors\nsuggested by the past experience of other countries, as well as of our\nown; and to provide a convenient mode of rectifying their own errors, as\nfuture experiences may unfold them.\n\nAmong the difficulties encountered by the convention, a very important\none must have lain in combining the requisite stability and energy in\ngovernment, with the inviolable attention due to liberty and to the\nrepublican form. Without substantially accomplishing this part of their\nundertaking, they would have very imperfectly fulfilled the object of\ntheir appointment, or the expectation of the public; yet that it could\nnot be easily accomplished, will be denied by no one who is unwilling to\nbetray his ignorance of the subject. Energy in government is essential\nto that security against external and internal danger, and to that\nprompt and salutary execution of the laws which enter into the very\ndefinition of good government. Stability in government is essential to\nnational character and to the advantages annexed to it, as well as to\nthat repose and confidence in the minds of the people, which are\namong the chief blessings of civil society. An irregular and mutable\nlegislation is not more an evil in itself than it is odious to the\npeople; and it may be pronounced with assurance that the people of\nthis country, enlightened as they are with regard to the nature, and\ninterested, as the great body of them are, in the effects of good\ngovernment, will never be satisfied till some remedy be applied to\nthe vicissitudes and uncertainties which characterize the State\nadministrations. On comparing, however, these valuable ingredients with\nthe vital principles of liberty, we must perceive at once the difficulty\nof mingling them together in their due proportions. The genius of\nrepublican liberty seems to demand on one side, not only that all power\nshould be derived from the people, but that those intrusted with it\nshould be kept in independence on the people, by a short duration of\ntheir appointments; and that even during this short period the trust\nshould be placed not in a few, but a number of hands. Stability, on\nthe contrary, requires that the hands in which power is lodged should\ncontinue for a length of time the same. A frequent change of men will\nresult from a frequent return of elections; and a frequent change of\nmeasures from a frequent change of men: whilst energy in government\nrequires not only a certain duration of power, but the execution of it\nby a single hand.\n\nHow far the convention may have succeeded in this part of their work,\nwill better appear on a more accurate view of it. From the cursory view\nhere taken, it must clearly appear to have been an arduous part.\n\nNot less arduous must have been the task of marking the proper line of\npartition between the authority of the general and that of the\nState governments. Every man will be sensible of this difficulty, in\nproportion as he has been accustomed to contemplate and discriminate\nobjects extensive and complicated in their nature. The faculties of\nthe mind itself have never yet been distinguished and defined, with\nsatisfactory precision, by all the efforts of the most acute and\nmetaphysical philosophers. Sense, perception, judgment, desire,\nvolition, memory, imagination, are found to be separated by such\ndelicate shades and minute gradations that their boundaries have\neluded the most subtle investigations, and remain a pregnant source of\ningenious disquisition and controversy. The boundaries between the great\nkingdom of nature, and, still more, between the various provinces,\nand lesser portions, into which they are subdivided, afford another\nillustration of the same important truth. The most sagacious and\nlaborious naturalists have never yet succeeded in tracing with certainty\nthe line which separates the district of vegetable life from the\nneighboring region of unorganized matter, or which marks the termination\nof the former and the commencement of the animal empire. A still greater\nobscurity lies in the distinctive characters by which the objects\nin each of these great departments of nature have been arranged and\nassorted.\n\nWhen we pass from the works of nature, in which all the delineations\nare perfectly accurate, and appear to be otherwise only from the\nimperfection of the eye which surveys them, to the institutions of man,\nin which the obscurity arises as well from the object itself as from\nthe organ by which it is contemplated, we must perceive the necessity of\nmoderating still further our expectations and hopes from the efforts\nof human sagacity. Experience has instructed us that no skill in the\nscience of government has yet been able to discriminate and define,\nwith sufficient certainty, its three great provinces the legislative,\nexecutive, and judiciary; or even the privileges and powers of the\ndifferent legislative branches. Questions daily occur in the course of\npractice, which prove the obscurity which reins in these subjects, and\nwhich puzzle the greatest adepts in political science.\n\nThe experience of ages, with the continued and combined labors of the\nmost enlightened legislatures and jurists, has been equally unsuccessful\nin delineating the several objects and limits of different codes of laws\nand different tribunals of justice. The precise extent of the common\nlaw, and the statute law, the maritime law, the ecclesiastical law, the\nlaw of corporations, and other local laws and customs, remains still to\nbe clearly and finally established in Great Britain, where accuracy in\nsuch subjects has been more industriously pursued than in any other part\nof the world. The jurisdiction of her several courts, general and local,\nof law, of equity, of admiralty, etc., is not less a source of frequent\nand intricate discussions, sufficiently denoting the indeterminate\nlimits by which they are respectively circumscribed. All new laws,\nthough penned with the greatest technical skill, and passed on the\nfullest and most mature deliberation, are considered as more or less\nobscure and equivocal, until their meaning be liquidated and ascertained\nby a series of particular discussions and adjudications. Besides the\nobscurity arising from the complexity of objects, and the imperfection\nof the human faculties, the medium through which the conceptions of men\nare conveyed to each other adds a fresh embarrassment. The use of words\nis to express ideas. Perspicuity, therefore, requires not only that the\nideas should be distinctly formed, but that they should be expressed by\nwords distinctly and exclusively appropriate to them. But no language is\nso copious as to supply words and phrases for every complex idea, or\nso correct as not to include many equivocally denoting different\nideas. Hence it must happen that however accurately objects may be\ndiscriminated in themselves, and however accurately the discrimination\nmay be considered, the definition of them may be rendered inaccurate\nby the inaccuracy of the terms in which it is delivered. And this\nunavoidable inaccuracy must be greater or less, according to the\ncomplexity and novelty of the objects defined. When the Almighty himself\ncondescends to address mankind in their own language, his meaning,\nluminous as it must be, is rendered dim and doubtful by the cloudy\nmedium through which it is communicated.\n\nHere, then, are three sources of vague and incorrect definitions:\nindistinctness of the object, imperfection of the organ of conception,\ninadequateness of the vehicle of ideas. Any one of these must produce a\ncertain degree of obscurity. The convention, in delineating the boundary\nbetween the federal and State jurisdictions, must have experienced the\nfull effect of them all.\n\nTo the difficulties already mentioned may be added the interfering\npretensions of the larger and smaller States. We cannot err in supposing\nthat the former would contend for a participation in the government,\nfully proportioned to their superior wealth and importance; and that the\nlatter would not be less tenacious of the equality at present enjoyed by\nthem. We may well suppose that neither side would entirely yield to the\nother, and consequently that the struggle could be terminated only by\ncompromise. It is extremely probable, also, that after the ratio\nof representation had been adjusted, this very compromise must have\nproduced a fresh struggle between the same parties, to give such a turn\nto the organization of the government, and to the distribution of its\npowers, as would increase the importance of the branches, in forming\nwhich they had respectively obtained the greatest share of influence.\nThere are features in the Constitution which warrant each of these\nsuppositions; and as far as either of them is well founded, it shows\nthat the convention must have been compelled to sacrifice theoretical\npropriety to the force of extraneous considerations.\n\nNor could it have been the large and small States only, which would\nmarshal themselves in opposition to each other on various points. Other\ncombinations, resulting from a difference of local position and policy,\nmust have created additional difficulties. As every State may be divided\ninto different districts, and its citizens into different classes,\nwhich give birth to contending interests and local jealousies, so the\ndifferent parts of the United States are distinguished from each other\nby a variety of circumstances, which produce a like effect on a larger\nscale. And although this variety of interests, for reasons sufficiently\nexplained in a former paper, may have a salutary influence on the\nadministration of the government when formed, yet every one must be\nsensible of the contrary influence, which must have been experienced in\nthe task of forming it.\n\nWould it be wonderful if, under the pressure of all these difficulties,\nthe convention should have been forced into some deviations from that\nartificial structure and regular symmetry which an abstract view of the\nsubject might lead an ingenious theorist to bestow on a Constitution\nplanned in his closet or in his imagination? The real wonder is that\nso many difficulties should have been surmounted, and surmounted with a\nunanimity almost as unprecedented as it must have been unexpected. It is\nimpossible for any man of candor to reflect on this circumstance without\npartaking of the astonishment. It is impossible for the man of pious\nreflection not to perceive in it a finger of that Almighty hand which\nhas been so frequently and signally extended to our relief in the\ncritical stages of the revolution.\n\nWe had occasion, in a former paper, to take notice of the repeated\ntrials which have been unsuccessfully made in the United Netherlands\nfor reforming the baneful and notorious vices of their constitution. The\nhistory of almost all the great councils and consultations held among\nmankind for reconciling their discordant opinions, assuaging their\nmutual jealousies, and adjusting their respective interests, is a\nhistory of factions, contentions, and disappointments, and may be\nclassed among the most dark and degraded pictures which display the\ninfirmities and depravities of the human character. If, in a few\nscattered instances, a brighter aspect is presented, they serve only as\nexceptions to admonish us of the general truth; and by their lustre to\ndarken the gloom of the adverse prospect to which they are contrasted.\nIn revolving the causes from which these exceptions result, and applying\nthem to the particular instances before us, we are necessarily led to\ntwo important conclusions. The first is, that the convention must have\nenjoyed, in a very singular degree, an exemption from the pestilential\ninfluence of party animosities the disease most incident to deliberative\nbodies, and most apt to contaminate their proceedings. The second\nconclusion is that all the deputations composing the convention were\nsatisfactorily accommodated by the final act, or were induced to accede\nto it by a deep conviction of the necessity of sacrificing private\nopinions and partial interests to the public good, and by a despair of\nseeing this necessity diminished by delays or by new experiments.\n\n\n\n\nFEDERALIST No. 38\n\nThe Same Subject Continued, and the Incoherence of the Objections to the\nNew Plan Exposed.\n\nFrom The Independent Journal. Saturday, January 12, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nIT IS not a little remarkable that in every case reported by ancient\nhistory, in which government has been established with deliberation and\nconsent, the task of framing it has not been committed to an assembly\nof men, but has been performed by some individual citizen of preeminent\nwisdom and approved integrity.\n\nMinos, we learn, was the primitive founder of the government of Crete,\nas Zaleucus was of that of the Locrians. Theseus first, and after him\nDraco and Solon, instituted the government of Athens. Lycurgus was the\nlawgiver of Sparta. The foundation of the original government of Rome\nwas laid by Romulus, and the work completed by two of his elective\nsuccessors, Numa and Tullius Hostilius. On the abolition of royalty the\nconsular administration was substituted by Brutus, who stepped forward\nwith a project for such a reform, which, he alleged, had been prepared\nby Tullius Hostilius, and to which his address obtained the assent and\nratification of the senate and people. This remark is applicable to\nconfederate governments also. Amphictyon, we are told, was the author\nof that which bore his name. The Achaean league received its first birth\nfrom Achaeus, and its second from Aratus.\n\nWhat degree of agency these reputed lawgivers might have in their\nrespective establishments, or how far they might be clothed with\nthe legitimate authority of the people, cannot in every instance be\nascertained. In some, however, the proceeding was strictly regular.\nDraco appears to have been intrusted by the people of Athens with\nindefinite powers to reform its government and laws. And Solon,\naccording to Plutarch, was in a manner compelled, by the universal\nsuffrage of his fellow-citizens, to take upon him the sole and absolute\npower of new-modeling the constitution. The proceedings under Lycurgus\nwere less regular; but as far as the advocates for a regular reform\ncould prevail, they all turned their eyes towards the single efforts of\nthat celebrated patriot and sage, instead of seeking to bring about a\nrevolution by the intervention of a deliberative body of citizens.\n\nWhence could it have proceeded, that a people, jealous as the Greeks\nwere of their liberty, should so far abandon the rules of caution as to\nplace their destiny in the hands of a single citizen? Whence could it\nhave proceeded, that the Athenians, a people who would not suffer an\narmy to be commanded by fewer than ten generals, and who required no\nother proof of danger to their liberties than the illustrious merit of\na fellow-citizen, should consider one illustrious citizen as a more\neligible depositary of the fortunes of themselves and their posterity,\nthan a select body of citizens, from whose common deliberations\nmore wisdom, as well as more safety, might have been expected? These\nquestions cannot be fully answered, without supposing that the fears\nof discord and disunion among a number of counsellors exceeded the\napprehension of treachery or incapacity in a single individual. History\ninforms us, likewise, of the difficulties with which these celebrated\nreformers had to contend, as well as the expedients which they were\nobliged to employ in order to carry their reforms into effect. Solon,\nwho seems to have indulged a more temporizing policy, confessed that\nhe had not given to his countrymen the government best suited to their\nhappiness, but most tolerable to their prejudices. And Lycurgus, more\ntrue to his object, was under the necessity of mixing a portion of\nviolence with the authority of superstition, and of securing his final\nsuccess by a voluntary renunciation, first of his country, and then\nof his life. If these lessons teach us, on one hand, to admire the\nimprovement made by America on the ancient mode of preparing and\nestablishing regular plans of government, they serve not less, on the\nother, to admonish us of the hazards and difficulties incident to such\nexperiments, and of the great imprudence of unnecessarily multiplying\nthem.\n\nIs it an unreasonable conjecture, that the errors which may be contained\nin the plan of the convention are such as have resulted rather from\nthe defect of antecedent experience on this complicated and difficult\nsubject, than from a want of accuracy or care in the investigation of\nit; and, consequently such as will not be ascertained until an actual\ntrial shall have pointed them out? This conjecture is rendered probable,\nnot only by many considerations of a general nature, but by the\nparticular case of the Articles of Confederation. It is observable that\namong the numerous objections and amendments suggested by the several\nStates, when these articles were submitted for their ratification,\nnot one is found which alludes to the great and radical error which on\nactual trial has discovered itself. And if we except the observations\nwhich New Jersey was led to make, rather by her local situation, than by\nher peculiar foresight, it may be questioned whether a single suggestion\nwas of sufficient moment to justify a revision of the system. There\nis abundant reason, nevertheless, to suppose that immaterial as these\nobjections were, they would have been adhered to with a very dangerous\ninflexibility, in some States, had not a zeal for their opinions and\nsupposed interests been stifled by the more powerful sentiment of\nself-preservation. One State, we may remember, persisted for several\nyears in refusing her concurrence, although the enemy remained the whole\nperiod at our gates, or rather in the very bowels of our country. Nor\nwas her pliancy in the end effected by a less motive, than the fear of\nbeing chargeable with protracting the public calamities, and endangering\nthe event of the contest. Every candid reader will make the proper\nreflections on these important facts.\n\nA patient who finds his disorder daily growing worse, and that an\nefficacious remedy can no longer be delayed without extreme danger,\nafter coolly revolving his situation, and the characters of different\nphysicians, selects and calls in such of them as he judges most capable\nof administering relief, and best entitled to his confidence. The\nphysicians attend; the case of the patient is carefully examined; a\nconsultation is held; they are unanimously agreed that the symptoms are\ncritical, but that the case, with proper and timely relief, is so far\nfrom being desperate, that it may be made to issue in an improvement of\nhis constitution. They are equally unanimous in prescribing the remedy,\nby which this happy effect is to be produced. The prescription is no\nsooner made known, however, than a number of persons interpose, and,\nwithout denying the reality or danger of the disorder, assure the\npatient that the prescription will be poison to his constitution, and\nforbid him, under pain of certain death, to make use of it. Might not\nthe patient reasonably demand, before he ventured to follow this advice,\nthat the authors of it should at least agree among themselves on some\nother remedy to be substituted? And if he found them differing as\nmuch from one another as from his first counsellors, would he not\nact prudently in trying the experiment unanimously recommended by the\nlatter, rather than be hearkening to those who could neither deny the\nnecessity of a speedy remedy, nor agree in proposing one?\n\nSuch a patient and in such a situation is America at this moment.\nShe has been sensible of her malady. She has obtained a regular and\nunanimous advice from men of her own deliberate choice. And she is\nwarned by others against following this advice under pain of the most\nfatal consequences. Do the monitors deny the reality of her danger? No.\nDo they deny the necessity of some speedy and powerful remedy? No. Are\nthey agreed, are any two of them agreed, in their objections to the\nremedy proposed, or in the proper one to be substituted? Let them speak\nfor themselves. This one tells us that the proposed Constitution ought\nto be rejected, because it is not a confederation of the States, but\na government over individuals. Another admits that it ought to be a\ngovernment over individuals to a certain extent, but by no means to\nthe extent proposed. A third does not object to the government over\nindividuals, or to the extent proposed, but to the want of a bill of\nrights. A fourth concurs in the absolute necessity of a bill of rights,\nbut contends that it ought to be declaratory, not of the personal\nrights of individuals, but of the rights reserved to the States in their\npolitical capacity. A fifth is of opinion that a bill of rights of any\nsort would be superfluous and misplaced, and that the plan would be\nunexceptionable but for the fatal power of regulating the times and\nplaces of election. An objector in a large State exclaims loudly against\nthe unreasonable equality of representation in the Senate. An objector\nin a small State is equally loud against the dangerous inequality in\nthe House of Representatives. From this quarter, we are alarmed with the\namazing expense, from the number of persons who are to administer\nthe new government. From another quarter, and sometimes from the same\nquarter, on another occasion, the cry is that the Congress will be but\na shadow of a representation, and that the government would be far less\nobjectionable if the number and the expense were doubled. A patriot in\na State that does not import or export, discerns insuperable objections\nagainst the power of direct taxation. The patriotic adversary in a State\nof great exports and imports, is not less dissatisfied that the whole\nburden of taxes may be thrown on consumption. This politician discovers\nin the Constitution a direct and irresistible tendency to monarchy; that\nis equally sure it will end in aristocracy. Another is puzzled to say\nwhich of these shapes it will ultimately assume, but sees clearly it\nmust be one or other of them; whilst a fourth is not wanting, who with\nno less confidence affirms that the Constitution is so far from having a\nbias towards either of these dangers, that the weight on that side\nwill not be sufficient to keep it upright and firm against its opposite\npropensities. With another class of adversaries to the Constitution the\nlanguage is that the legislative, executive, and judiciary departments\nare intermixed in such a manner as to contradict all the ideas of\nregular government and all the requisite precautions in favor of\nliberty. Whilst this objection circulates in vague and general\nexpressions, there are but a few who lend their sanction to it. Let each\none come forward with his particular explanation, and scarce any two are\nexactly agreed upon the subject. In the eyes of one the junction of the\nSenate with the President in the responsible function of appointing to\noffices, instead of vesting this executive power in the Executive alone,\nis the vicious part of the organization. To another, the exclusion\nof the House of Representatives, whose numbers alone could be a due\nsecurity against corruption and partiality in the exercise of such\na power, is equally obnoxious. With another, the admission of the\nPresident into any share of a power which ever must be a dangerous\nengine in the hands of the executive magistrate, is an unpardonable\nviolation of the maxims of republican jealousy. No part of the\narrangement, according to some, is more inadmissible than the trial of\nimpeachments by the Senate, which is alternately a member both of the\nlegislative and executive departments, when this power so evidently\nbelonged to the judiciary department. \"We concur fully,\" reply others,\n\"in the objection to this part of the plan, but we can never agree\nthat a reference of impeachments to the judiciary authority would be an\namendment of the error. Our principal dislike to the organization arises\nfrom the extensive powers already lodged in that department.\" Even\namong the zealous patrons of a council of state the most irreconcilable\nvariance is discovered concerning the mode in which it ought to be\nconstituted. The demand of one gentleman is, that the council should\nconsist of a small number to be appointed by the most numerous branch of\nthe legislature. Another would prefer a larger number, and considers it\nas a fundamental condition that the appointment should be made by the\nPresident himself.\n\nAs it can give no umbrage to the writers against the plan of the federal\nConstitution, let us suppose, that as they are the most zealous, so they\nare also the most sagacious, of those who think the late convention\nwere unequal to the task assigned them, and that a wiser and better plan\nmight and ought to be substituted. Let us further suppose that their\ncountry should concur, both in this favorable opinion of their\nmerits, and in their unfavorable opinion of the convention; and should\naccordingly proceed to form them into a second convention, with full\npowers, and for the express purpose of revising and remoulding the\nwork of the first. Were the experiment to be seriously made, though it\nrequired some effort to view it seriously even in fiction, I leave it to\nbe decided by the sample of opinions just exhibited, whether, with all\ntheir enmity to their predecessors, they would, in any one point, depart\nso widely from their example, as in the discord and ferment that would\nmark their own deliberations; and whether the Constitution, now before\nthe public, would not stand as fair a chance for immortality, as\nLycurgus gave to that of Sparta, by making its change to depend on his\nown return from exile and death, if it were to be immediately adopted,\nand were to continue in force, not until a BETTER, but until ANOTHER\nshould be agreed upon by this new assembly of lawgivers.\n\nIt is a matter both of wonder and regret, that those who raise so many\nobjections against the new Constitution should never call to mind the\ndefects of that which is to be exchanged for it. It is not necessary\nthat the former should be perfect; it is sufficient that the latter is\nmore imperfect. No man would refuse to give brass for silver or gold,\nbecause the latter had some alloy in it. No man would refuse to quit a\nshattered and tottering habitation for a firm and commodious building,\nbecause the latter had not a porch to it, or because some of the rooms\nmight be a little larger or smaller, or the ceilings a little higher or\nlower than his fancy would have planned them. But waiving illustrations\nof this sort, is it not manifest that most of the capital objections\nurged against the new system lie with tenfold weight against the\nexisting Confederation? Is an indefinite power to raise money dangerous\nin the hands of the federal government? The present Congress can\nmake requisitions to any amount they please, and the States are\nconstitutionally bound to furnish them; they can emit bills of credit as\nlong as they will pay for the paper; they can borrow, both abroad and\nat home, as long as a shilling will be lent. Is an indefinite power to\nraise troops dangerous? The Confederation gives to Congress that power\nalso; and they have already begun to make use of it. Is it improper and\nunsafe to intermix the different powers of government in the same body\nof men? Congress, a single body of men, are the sole depositary of all\nthe federal powers. Is it particularly dangerous to give the keys of\nthe treasury, and the command of the army, into the same hands? The\nConfederation places them both in the hands of Congress. Is a bill of\nrights essential to liberty? The Confederation has no bill of rights.\nIs it an objection against the new Constitution, that it empowers the\nSenate, with the concurrence of the Executive, to make treaties which\nare to be the laws of the land? The existing Congress, without any such\ncontrol, can make treaties which they themselves have declared, and most\nof the States have recognized, to be the supreme law of the land. Is\nthe importation of slaves permitted by the new Constitution for twenty\nyears? By the old it is permitted forever.\n\nI shall be told, that however dangerous this mixture of powers may be\nin theory, it is rendered harmless by the dependence of Congress on the\nState for the means of carrying them into practice; that however large\nthe mass of powers may be, it is in fact a lifeless mass. Then, say I,\nin the first place, that the Confederation is chargeable with the still\ngreater folly of declaring certain powers in the federal government to\nbe absolutely necessary, and at the same time rendering them absolutely\nnugatory; and, in the next place, that if the Union is to continue, and\nno better government be substituted, effective powers must either be\ngranted to, or assumed by, the existing Congress; in either of which\nevents, the contrast just stated will hold good. But this is not all.\nOut of this lifeless mass has already grown an excrescent power,\nwhich tends to realize all the dangers that can be apprehended from a\ndefective construction of the supreme government of the Union. It is now\nno longer a point of speculation and hope, that the Western territory\nis a mine of vast wealth to the United States; and although it is not of\nsuch a nature as to extricate them from their present distresses, or\nfor some time to come, to yield any regular supplies for the public\nexpenses, yet must it hereafter be able, under proper management, both\nto effect a gradual discharge of the domestic debt, and to furnish, for\na certain period, liberal tributes to the federal treasury. A very\nlarge proportion of this fund has been already surrendered by individual\nStates; and it may with reason be expected that the remaining States\nwill not persist in withholding similar proofs of their equity and\ngenerosity. We may calculate, therefore, that a rich and fertile\ncountry, of an area equal to the inhabited extent of the United\nStates, will soon become a national stock. Congress have assumed the\nadministration of this stock. They have begun to render it productive.\nCongress have undertaken to do more: they have proceeded to form new\nStates, to erect temporary governments, to appoint officers for them,\nand to prescribe the conditions on which such States shall be admitted\ninto the Confederacy. All this has been done; and done without the least\ncolor of constitutional authority. Yet no blame has been whispered;\nno alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is\npassing into the hands of a SINGLE BODY of men, who can RAISE TROOPS\nto an INDEFINITE NUMBER, and appropriate money to their support for an\nINDEFINITE PERIOD OF TIME. And yet there are men, who have not only been\nsilent spectators of this prospect, but who are advocates for the system\nwhich exhibits it; and, at the same time, urge against the new system\nthe objections which we have heard. Would they not act with more\nconsistency, in urging the establishment of the latter, as no less\nnecessary to guard the Union against the future powers and resources of\na body constructed like the existing Congress, than to save it from the\ndangers threatened by the present impotency of that Assembly?\n\nI mean not, by any thing here said, to throw censure on the measures\nwhich have been pursued by Congress. I am sensible they could not have\ndone otherwise. The public interest, the necessity of the case, imposed\nupon them the task of overleaping their constitutional limits. But is\nnot the fact an alarming proof of the danger resulting from a government\nwhich does not possess regular powers commensurate to its objects?\nA dissolution or usurpation is the dreadful dilemma to which it is\ncontinually exposed.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 39\n\nThe Conformity of the Plan to Republican Principles\n\nFor the Independent Journal. Wednesday, January 16, 1788\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE last paper having concluded the observations which were meant to\nintroduce a candid survey of the plan of government reported by\nthe convention, we now proceed to the execution of that part of our\nundertaking.\n\nThe first question that offers itself is, whether the general form and\naspect of the government be strictly republican. It is evident that\nno other form would be reconcilable with the genius of the people of\nAmerica; with the fundamental principles of the Revolution; or with that\nhonorable determination which animates every votary of freedom, to\nrest all our political experiments on the capacity of mankind for\nself-government. If the plan of the convention, therefore, be found to\ndepart from the republican character, its advocates must abandon it as\nno longer defensible.\n\nWhat, then, are the distinctive characters of the republican form? Were\nan answer to this question to be sought, not by recurring to principles,\nbut in the application of the term by political writers, to the\nconstitution of different States, no satisfactory one would ever be\nfound. Holland, in which no particle of the supreme authority is derived\nfrom the people, has passed almost universally under the denomination of\na republic. The same title has been bestowed on Venice, where absolute\npower over the great body of the people is exercised, in the most\nabsolute manner, by a small body of hereditary nobles. Poland, which is\na mixture of aristocracy and of monarchy in their worst forms, has been\ndignified with the same appellation. The government of England, which\nhas one republican branch only, combined with an hereditary aristocracy\nand monarchy, has, with equal impropriety, been frequently placed on\nthe list of republics. These examples, which are nearly as dissimilar\nto each other as to a genuine republic, show the extreme inaccuracy with\nwhich the term has been used in political disquisitions.\n\nIf we resort for a criterion to the different principles on which\ndifferent forms of government are established, we may define a republic\nto be, or at least may bestow that name on, a government which derives\nall its powers directly or indirectly from the great body of the people,\nand is administered by persons holding their offices during pleasure,\nfor a limited period, or during good behavior. It is ESSENTIAL to such\na government that it be derived from the great body of the society, not\nfrom an inconsiderable proportion, or a favored class of it; otherwise\na handful of tyrannical nobles, exercising their oppressions by a\ndelegation of their powers, might aspire to the rank of republicans,\nand claim for their government the honorable title of republic. It is\nSUFFICIENT for such a government that the persons administering it be\nappointed, either directly or indirectly, by the people; and that\nthey hold their appointments by either of the tenures just specified;\notherwise every government in the United States, as well as every\nother popular government that has been or can be well organized or well\nexecuted, would be degraded from the republican character. According\nto the constitution of every State in the Union, some or other of the\nofficers of government are appointed indirectly only by the people.\nAccording to most of them, the chief magistrate himself is so appointed.\nAnd according to one, this mode of appointment is extended to one of\nthe co-ordinate branches of the legislature. According to all the\nconstitutions, also, the tenure of the highest offices is extended to a\ndefinite period, and in many instances, both within the legislative and\nexecutive departments, to a period of years. According to the provisions\nof most of the constitutions, again, as well as according to the most\nrespectable and received opinions on the subject, the members of the\njudiciary department are to retain their offices by the firm tenure of\ngood behavior.\n\nOn comparing the Constitution planned by the convention with the\nstandard here fixed, we perceive at once that it is, in the most rigid\nsense, conformable to it. The House of Representatives, like that of one\nbranch at least of all the State legislatures, is elected immediately by\nthe great body of the people. The Senate, like the present Congress,\nand the Senate of Maryland, derives its appointment indirectly from\nthe people. The President is indirectly derived from the choice of the\npeople, according to the example in most of the States. Even the judges,\nwith all other officers of the Union, will, as in the several States,\nbe the choice, though a remote choice, of the people themselves, the\nduration of the appointments is equally conformable to the republican\nstandard, and to the model of State constitutions The House of\nRepresentatives is periodically elective, as in all the States; and for\nthe period of two years, as in the State of South Carolina. The Senate\nis elective, for the period of six years; which is but one year more\nthan the period of the Senate of Maryland, and but two more than that\nof the Senates of New York and Virginia. The President is to continue\nin office for the period of four years; as in New York and Delaware, the\nchief magistrate is elected for three years, and in South Carolina for\ntwo years. In the other States the election is annual. In several of the\nStates, however, no constitutional provision is made for the impeachment\nof the chief magistrate. And in Delaware and Virginia he is not\nimpeachable till out of office. The President of the United States is\nimpeachable at any time during his continuance in office. The tenure\nby which the judges are to hold their places, is, as it unquestionably\nought to be, that of good behavior. The tenure of the ministerial\noffices generally, will be a subject of legal regulation, conformably to\nthe reason of the case and the example of the State constitutions.\n\nCould any further proof be required of the republican complexion of this\nsystem, the most decisive one might be found in its absolute prohibition\nof titles of nobility, both under the federal and the State governments;\nand in its express guaranty of the republican form to each of the\nlatter.\n\n\"But it was not sufficient,\" say the adversaries of the proposed\nConstitution, \"for the convention to adhere to the republican form.\nThey ought, with equal care, to have preserved the FEDERAL form, which\nregards the Union as a CONFEDERACY of sovereign states; instead of\nwhich, they have framed a NATIONAL government, which regards the Union\nas a CONSOLIDATION of the States.\" And it is asked by what authority\nthis bold and radical innovation was undertaken? The handle which has\nbeen made of this objection requires that it should be examined with\nsome precision.\n\nWithout inquiring into the accuracy of the distinction on which the\nobjection is founded, it will be necessary to a just estimate of its\nforce, first, to ascertain the real character of the government in\nquestion; secondly, to inquire how far the convention were authorized\nto propose such a government; and thirdly, how far the duty they owed to\ntheir country could supply any defect of regular authority.\n\nFirst. In order to ascertain the real character of the government, it\nmay be considered in relation to the foundation on which it is to be\nestablished; to the sources from which its ordinary powers are to be\ndrawn; to the operation of those powers; to the extent of them; and\nto the authority by which future changes in the government are to be\nintroduced.\n\nOn examining the first relation, it appears, on one hand, that the\nConstitution is to be founded on the assent and ratification of the\npeople of America, given by deputies elected for the special purpose;\nbut, on the other, that this assent and ratification is to be given\nby the people, not as individuals composing one entire nation, but as\ncomposing the distinct and independent States to which they respectively\nbelong. It is to be the assent and ratification of the several States,\nderived from the supreme authority in each State, the authority of the\npeople themselves. The act, therefore, establishing the Constitution,\nwill not be a NATIONAL, but a FEDERAL act.\n\nThat it will be a federal and not a national act, as these terms are\nunderstood by the objectors; the act of the people, as forming so many\nindependent States, not as forming one aggregate nation, is obvious\nfrom this single consideration, that it is to result neither from the\ndecision of a MAJORITY of the people of the Union, nor from that of a\nMAJORITY of the States. It must result from the UNANIMOUS assent of the\nseveral States that are parties to it, differing no otherwise from their\nordinary assent than in its being expressed, not by the legislative\nauthority, but by that of the people themselves. Were the people\nregarded in this transaction as forming one nation, the will of the\nmajority of the whole people of the United States would bind the\nminority, in the same manner as the majority in each State must bind the\nminority; and the will of the majority must be determined either by a\ncomparison of the individual votes, or by considering the will of the\nmajority of the States as evidence of the will of a majority of the\npeople of the United States. Neither of these rules have been adopted.\nEach State, in ratifying the Constitution, is considered as a sovereign\nbody, independent of all others, and only to be bound by its own\nvoluntary act. In this relation, then, the new Constitution will, if\nestablished, be a FEDERAL, and not a NATIONAL constitution.\n\nThe next relation is, to the sources from which the ordinary powers of\ngovernment are to be derived. The House of Representatives will\nderive its powers from the people of America; and the people will be\nrepresented in the same proportion, and on the same principle, as they\nare in the legislature of a particular State. So far the government is\nNATIONAL, not FEDERAL. The Senate, on the other hand, will derive its\npowers from the States, as political and coequal societies; and these\nwill be represented on the principle of equality in the Senate, as they\nnow are in the existing Congress. So far the government is FEDERAL,\nnot NATIONAL. The executive power will be derived from a very compound\nsource. The immediate election of the President is to be made by the\nStates in their political characters. The votes allotted to them are in\na compound ratio, which considers them partly as distinct and coequal\nsocieties, partly as unequal members of the same society. The eventual\nelection, again, is to be made by that branch of the legislature which\nconsists of the national representatives; but in this particular act\nthey are to be thrown into the form of individual delegations, from\nso many distinct and coequal bodies politic. From this aspect of the\ngovernment it appears to be of a mixed character, presenting at least as\nmany FEDERAL as NATIONAL features.\n\nThe difference between a federal and national government, as it relates\nto the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that\nin the former the powers operate on the political bodies composing\nthe Confederacy, in their political capacities; in the latter, on\nthe individual citizens composing the nation, in their individual\ncapacities. On trying the Constitution by this criterion, it falls\nunder the NATIONAL, not the FEDERAL character; though perhaps not so\ncompletely as has been understood. In several cases, and particularly in\nthe trial of controversies to which States may be parties, they must\nbe viewed and proceeded against in their collective and political\ncapacities only. So far the national countenance of the government on\nthis side seems to be disfigured by a few federal features. But this\nblemish is perhaps unavoidable in any plan; and the operation of\nthe government on the people, in their individual capacities, in its\nordinary and most essential proceedings, may, on the whole, designate\nit, in this relation, a NATIONAL government.\n\nBut if the government be national with regard to the OPERATION of its\npowers, it changes its aspect again when we contemplate it in relation\nto the EXTENT of its powers. The idea of a national government involves\nin it, not only an authority over the individual citizens, but an\nindefinite supremacy over all persons and things, so far as they are\nobjects of lawful government. Among a people consolidated into one\nnation, this supremacy is completely vested in the national legislature.\nAmong communities united for particular purposes, it is vested partly\nin the general and partly in the municipal legislatures. In the former\ncase, all local authorities are subordinate to the supreme; and may be\ncontrolled, directed, or abolished by it at pleasure. In the latter, the\nlocal or municipal authorities form distinct and independent portions of\nthe supremacy, no more subject, within their respective spheres, to the\ngeneral authority, than the general authority is subject to them, within\nits own sphere. In this relation, then, the proposed government cannot\nbe deemed a NATIONAL one; since its jurisdiction extends to certain\nenumerated objects only, and leaves to the several States a residuary\nand inviolable sovereignty over all other objects. It is true that in\ncontroversies relating to the boundary between the two jurisdictions,\nthe tribunal which is ultimately to decide, is to be established under\nthe general government. But this does not change the principle of the\ncase. The decision is to be impartially made, according to the rules of\nthe Constitution; and all the usual and most effectual precautions\nare taken to secure this impartiality. Some such tribunal is clearly\nessential to prevent an appeal to the sword and a dissolution of the\ncompact; and that it ought to be established under the general rather\nthan under the local governments, or, to speak more properly, that it\ncould be safely established under the first alone, is a position not\nlikely to be combated.\n\nIf we try the Constitution by its last relation to the authority by\nwhich amendments are to be made, we find it neither wholly NATIONAL\nnor wholly FEDERAL. Were it wholly national, the supreme and ultimate\nauthority would reside in the MAJORITY of the people of the Union; and\nthis authority would be competent at all times, like that of a\nmajority of every national society, to alter or abolish its established\ngovernment. Were it wholly federal, on the other hand, the concurrence\nof each State in the Union would be essential to every alteration that\nwould be binding on all. The mode provided by the plan of the convention\nis not founded on either of these principles. In requiring more than\na majority, and principles. In requiring more than a majority, and\nparticularly in computing the proportion by STATES, not by CITIZENS, it\ndeparts from the NATIONAL and advances towards the FEDERAL character;\nin rendering the concurrence of less than the whole number of States\nsufficient, it loses again the FEDERAL and partakes of the NATIONAL\ncharacter.\n\nThe proposed Constitution, therefore, is, in strictness, neither a\nnational nor a federal Constitution, but a composition of both. In its\nfoundation it is federal, not national; in the sources from which the\nordinary powers of the government are drawn, it is partly federal and\npartly national; in the operation of these powers, it is national, not\nfederal; in the extent of them, again, it is federal, not national;\nand, finally, in the authoritative mode of introducing amendments, it is\nneither wholly federal nor wholly national.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 40\n\nOn the Powers of the Convention to Form a Mixed Government Examined and\nSustained For the New York Packet. Friday, January 18, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE SECOND point to be examined is, whether the convention were\nauthorized to frame and propose this mixed Constitution.\n\nThe powers of the convention ought, in strictness, to be determined\nby an inspection of the commissions given to the members by their\nrespective constituents. As all of these, however, had reference, either\nto the recommendation from the meeting at Annapolis, in September, 1786,\nor to that from Congress, in February, 1787, it will be sufficient to\nrecur to these particular acts.\n\nThe act from Annapolis recommends the \"appointment of commissioners to\ntake into consideration the situation of the United States; to devise\nSUCH FURTHER PROVISIONS as shall appear to them necessary to render the\nConstitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE\nUNION; and to report such an act for that purpose, to the United\nStates in Congress assembled, as when agreed to by them, and afterwards\nconfirmed by the legislature of every State, will effectually provide\nfor the same.\"\n\nThe recommendatory act of Congress is in the words following: \"WHEREAS,\nThere is provision in the articles of Confederation and perpetual Union,\nfor making alterations therein, by the assent of a Congress of the\nUnited States, and of the legislatures of the several States; and\nwhereas experience hath evinced, that there are defects in the present\nConfederation; as a mean to remedy which, several of the States, and\nPARTICULARLY THE STATE OF NEW YORK, by express instructions to their\ndelegates in Congress, have suggested a convention for the purposes\nexpressed in the following resolution; and such convention appearing\nto be the most probable mean of establishing in these States A FIRM\nNATIONAL GOVERNMENT:\n\n\"Resolved, That in the opinion of Congress it is expedient, that on the\nsecond Monday of May next a convention of delegates, who shall have been\nappointed by the several States, be held at Philadelphia, for the sole\nand express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and\nreporting to Congress and the several legislatures such ALTERATIONS AND\nPROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed\nby the States, render the federal Constitution ADEQUATE TO THE\nEXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.\"\n\nFrom these two acts, it appears, 1st, that the object of the convention\nwas to establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that\nthis government was to be such as would be ADEQUATE TO THE EXIGENCIES\nOF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes\nwere to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF\nCONFEDERATION, as it is expressed in the act of Congress, or by SUCH\nFURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the\nrecommendatory act from Annapolis; 4th, that the alterations and\nprovisions were to be reported to Congress, and to the States, in order\nto be agreed to by the former and confirmed by the latter.\n\nFrom a comparison and fair construction of these several modes of\nexpression, is to be deduced the authority under which the convention\nacted. They were to frame a NATIONAL GOVERNMENT, adequate to the\nEXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles\nof Confederation into such form as to accomplish these purposes.\n\nThere are two rules of construction, dictated by plain reason, as\nwell as founded on legal axioms. The one is, that every part of the\nexpression ought, if possible, to be allowed some meaning, and be made\nto conspire to some common end. The other is, that where the several\nparts cannot be made to coincide, the less important should give way\nto the more important part; the means should be sacrificed to the end,\nrather than the end to the means.\n\nSuppose, then, that the expressions defining the authority of the\nconvention were irreconcilably at variance with each other; that a\nNATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment\nof the convention, be affected by ALTERATIONS and PROVISIONS in the\nARTICLES OF CONFEDERATION; which part of the definition ought to have\nbeen embraced, and which rejected? Which was the more important, which\nthe less important part? Which the end; which the means? Let the most\nscrupulous expositors of delegated powers; let the most inveterate\nobjectors against those exercised by the convention, answer these\nquestions. Let them declare, whether it was of most importance to the\nhappiness of the people of America, that the articles of Confederation\nshould be disregarded, and an adequate government be provided, and the\nUnion preserved; or that an adequate government should be omitted, and\nthe articles of Confederation preserved. Let them declare, whether the\npreservation of these articles was the end, for securing which a reform\nof the government was to be introduced as the means; or whether the\nestablishment of a government, adequate to the national happiness, was\nthe end at which these articles themselves originally aimed, and to\nwhich they ought, as insufficient means, to have been sacrificed.\n\nBut is it necessary to suppose that these expressions are absolutely\nirreconcilable to each other; that no ALTERATIONS or PROVISIONS in the\narticles of the confederation could possibly mould them into a national\nand adequate government; into such a government as has been proposed by\nthe convention?\n\nNo stress, it is presumed, will, in this case, be laid on the TITLE;\na change of that could never be deemed an exercise of ungranted power.\nALTERATIONS in the body of the instrument are expressly authorized. NEW\nPROVISIONS therein are also expressly authorized. Here then is a power\nto change the title; to insert new articles; to alter old ones. Must it\nof necessity be admitted that this power is infringed, so long as a part\nof the old articles remain? Those who maintain the affirmative ought at\nleast to mark the boundary between authorized and usurped innovations;\nbetween that degree of change which lies within the compass of\nALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a\nTRANSMUTATION of the government. Will it be said that the alterations\nought not to have touched the substance of the Confederation? The States\nwould never have appointed a convention with so much solemnity, nor\ndescribed its objects with so much latitude, if some SUBSTANTIAL reform\nhad not been in contemplation. Will it be said that the FUNDAMENTAL\nPRINCIPLES of the Confederation were not within the purview of the\nconvention, and ought not to have been varied? I ask, What are\nthese principles? Do they require that, in the establishment of the\nConstitution, the States should be regarded as distinct and independent\nsovereigns? They are so regarded by the Constitution proposed. Do\nthey require that the members of the government should derive their\nappointment from the legislatures, not from the people of the\nStates? One branch of the new government is to be appointed by these\nlegislatures; and under the Confederation, the delegates to Congress\nMAY ALL be appointed immediately by the people, and in two States(1) are\nactually so appointed. Do they require that the powers of the government\nshould act on the States, and not immediately on individuals? In some\ninstances, as has been shown, the powers of the new government will act\non the States in their collective characters. In some instances, also,\nthose of the existing government act immediately on individuals. In\ncases of capture; of piracy; of the post office; of coins, weights, and\nmeasures; of trade with the Indians; of claims under grants of land\nby different States; and, above all, in the case of trials by\ncourts-marshal in the army and navy, by which death may be inflicted\nwithout the intervention of a jury, or even of a civil magistrate; in\nall these cases the powers of the Confederation operate immediately on\nthe persons and interests of individual citizens. Do these fundamental\nprinciples require, particularly, that no tax should be levied without\nthe intermediate agency of the States? The Confederation itself\nauthorizes a direct tax, to a certain extent, on the post office. The\npower of coinage has been so construed by Congress as to levy a tribute\nimmediately from that source also. But pretermitting these instances,\nwas it not an acknowledged object of the convention and the universal\nexpectation of the people, that the regulation of trade should be\nsubmitted to the general government in such a form as would render it\nan immediate source of general revenue? Had not Congress repeatedly\nrecommended this measure as not inconsistent with the fundamental\nprinciples of the Confederation? Had not every State but one; had\nnot New York herself, so far complied with the plan of Congress as to\nrecognize the PRINCIPLE of the innovation? Do these principles, in fine,\nrequire that the powers of the general government should be limited,\nand that, beyond this limit, the States should be left in possession\nof their sovereignty and independence? We have seen that in the new\ngovernment, as in the old, the general powers are limited; and that the\nStates, in all unenumerated cases, are left in the enjoyment of their\nsovereign and independent jurisdiction.\n\nThe truth is, that the great principles of the Constitution proposed\nby the convention may be considered less as absolutely new, than as\nthe expansion of principles which are found in the articles of\nConfederation. The misfortune under the latter system has been, that\nthese principles are so feeble and confined as to justify all the\ncharges of inefficiency which have been urged against it, and to require\na degree of enlargement which gives to the new system the aspect of an\nentire transformation of the old.\n\nIn one particular it is admitted that the convention have departed from\nthe tenor of their commission. Instead of reporting a plan requiring the\nconfirmation OF THE LEGISLATURES OF ALL THE STATES, they have reported\na plan which is to be confirmed by the PEOPLE, and may be carried into\neffect by NINE STATES ONLY. It is worthy of remark that this objection,\nthough the most plausible, has been the least urged in the publications\nwhich have swarmed against the convention. The forbearance can only have\nproceeded from an irresistible conviction of the absurdity of subjecting\nthe fate of twelve States to the perverseness or corruption of a\nthirteenth; from the example of inflexible opposition given by a\nMAJORITY of one sixtieth of the people of America to a measure approved\nand called for by the voice of twelve States, comprising fifty-nine\nsixtieths of the people an example still fresh in the memory and\nindignation of every citizen who has felt for the wounded honor and\nprosperity of his country. As this objection, therefore, has been in a\nmanner waived by those who have criticised the powers of the convention,\nI dismiss it without further observation.\n\nThe THIRD point to be inquired into is, how far considerations of duty\narising out of the case itself could have supplied any defect of regular\nauthority.\n\nIn the preceding inquiries the powers of the convention have been\nanalyzed and tried with the same rigor, and by the same rules, as\nif they had been real and final powers for the establishment of a\nConstitution for the United States. We have seen in what manner they\nhave borne the trial even on that supposition. It is time now to\nrecollect that the powers were merely advisory and recommendatory; that\nthey were so meant by the States, and so understood by the convention;\nand that the latter have accordingly planned and proposed a Constitution\nwhich is to be of no more consequence than the paper on which it is\nwritten, unless it be stamped with the approbation of those to whom\nit is addressed. This reflection places the subject in a point of view\naltogether different, and will enable us to judge with propriety of the\ncourse taken by the convention.\n\nLet us view the ground on which the convention stood. It may be\ncollected from their proceedings, that they were deeply and unanimously\nimpressed with the crisis, which had led their country almost with one\nvoice to make so singular and solemn an experiment for correcting the\nerrors of a system by which this crisis had been produced; that they\nwere no less deeply and unanimously convinced that such a reform as they\nhave proposed was absolutely necessary to effect the purposes of\ntheir appointment. It could not be unknown to them that the hopes\nand expectations of the great body of citizens, throughout this great\nempire, were turned with the keenest anxiety to the event of their\ndeliberations. They had every reason to believe that the contrary\nsentiments agitated the minds and bosoms of every external and internal\nfoe to the liberty and prosperity of the United States. They had seen in\nthe origin and progress of the experiment, the alacrity with which\nthe PROPOSITION, made by a single State (Virginia), towards a partial\namendment of the Confederation, had been attended to and promoted. They\nhad seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW\nStates, convened at Annapolis, of recommending a great and critical\nobject, wholly foreign to their commission, not only justified by the\npublic opinion, but actually carried into effect by twelve out of the\nthirteen States. They had seen, in a variety of instances, assumptions\nby Congress, not only of recommendatory, but of operative, powers,\nwarranted, in the public estimation, by occasions and objects infinitely\nless urgent than those by which their conduct was to be governed.\nThey must have reflected, that in all great changes of established\ngovernments, forms ought to give way to substance; that a rigid\nadherence in such cases to the former, would render nominal and nugatory\nthe transcendent and precious right of the people to \"abolish or alter\ntheir governments as to them shall seem most likely to effect their\nsafety and happiness,\"(2) since it is impossible for the people\nspontaneously and universally to move in concert towards their object;\nand it is therefore essential that such changes be instituted by some\nINFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and\nrespectable citizen or number of citizens. They must have recollected\nthat it was by this irregular and assumed privilege of proposing to the\npeople plans for their safety and happiness, that the States were first\nunited against the danger with which they were threatened by their\nancient government; that committees and congresses were formed for\nconcentrating their efforts and defending their rights; and that\nCONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the\nconstitutions under which they are now governed; nor could it have been\nforgotten that no little ill-timed scruples, no zeal for adhering\nto ordinary forms, were anywhere seen, except in those who wished\nto indulge, under these masks, their secret enmity to the substance\ncontended for. They must have borne in mind, that as the plan to be\nframed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the\ndisapprobation of this supreme authority would destroy it forever; its\napprobation blot out antecedent errors and irregularities. It might\neven have occurred to them, that where a disposition to cavil prevailed,\ntheir neglect to execute the degree of power vested in them, and still\nmore their recommendation of any measure whatever, not warranted\nby their commission, would not less excite animadversion, than a\nrecommendation at once of a measure fully commensurate to the national\nexigencies.\n\nHad the convention, under all these impressions, and in the midst of all\nthese considerations, instead of exercising a manly confidence in their\ncountry, by whose confidence they had been so peculiarly distinguished,\nand of pointing out a system capable, in their judgment, of securing\nits happiness, taken the cold and sullen resolution of disappointing\nits ardent hopes, of sacrificing substance to forms, of committing the\ndearest interests of their country to the uncertainties of delay and\nthe hazard of events, let me ask the man who can raise his mind to one\nelevated conception, who can awaken in his bosom one patriotic emotion,\nwhat judgment ought to have been pronounced by the impartial world, by\nthe friends of mankind, by every virtuous citizen, on the conduct and\ncharacter of this assembly? Or if there be a man whose propensity to\ncondemn is susceptible of no control, let me then ask what sentence he\nhas in reserve for the twelve States who USURPED THE POWER of\nsending deputies to the convention, a body utterly unknown to their\nconstitutions; for Congress, who recommended the appointment of this\nbody, equally unknown to the Confederation; and for the State of New\nYork, in particular, which first urged and then complied with this\nunauthorized interposition?\n\nBut that the objectors may be disarmed of every pretext, it shall be\ngranted for a moment that the convention were neither authorized\nby their commission, nor justified by circumstances in proposing a\nConstitution for their country: does it follow that the Constitution\nought, for that reason alone, to be rejected? If, according to the noble\nprecept, it be lawful to accept good advice even from an enemy, shall we\nset the ignoble example of refusing such advice even when it is offered\nby our friends? The prudent inquiry, in all cases, ought surely to be,\nnot so much FROM WHOM the advice comes, as whether the advice be GOOD.\n\nThe sum of what has been here advanced and proved is, that the charge\nagainst the convention of exceeding their powers, except in one instance\nlittle urged by the objectors, has no foundation to support it; that\nif they had exceeded their powers, they were not only warranted,\nbut required, as the confidential servants of their country, by the\ncircumstances in which they were placed, to exercise the liberty which\nthey assume; and that finally, if they had violated both their\npowers and their obligations, in proposing a Constitution, this ought\nnevertheless to be embraced, if it be calculated to accomplish the views\nand happiness of the people of America. How far this character is due to\nthe Constitution, is the subject under investigation.\n\nPUBLIUS\n\n1. Connecticut and Rhode Island.\n\n2. Declaration of Independence.\n\n\n\n\nFEDERALIST No. 41\n\nGeneral View of the Powers Conferred by The Constitution\n\nFor the Independent Journal. Saturday, January 19, 1788\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE Constitution proposed by the convention may be considered under\ntwo general points of view. The FIRST relates to the sum or quantity of\npower which it vests in the government, including the restraints\nimposed on the States. The SECOND, to the particular structure of\nthe government, and the distribution of this power among its several\nbranches.\n\nUnder the FIRST view of the subject, two important questions arise: 1.\nWhether any part of the powers transferred to the general government be\nunnecessary or improper? 2. Whether the entire mass of them be dangerous\nto the portion of jurisdiction left in the several States?\n\nIs the aggregate power of the general government greater than ought to\nhave been vested in it? This is the FIRST question.\n\nIt cannot have escaped those who have attended with candor to the\narguments employed against the extensive powers of the government, that\nthe authors of them have very little considered how far these powers\nwere necessary means of attaining a necessary end. They have chosen\nrather to dwell on the inconveniences which must be unavoidably blended\nwith all political advantages; and on the possible abuses which must be\nincident to every power or trust, of which a beneficial use can be made.\nThis method of handling the subject cannot impose on the good sense of\nthe people of America. It may display the subtlety of the writer; it may\nopen a boundless field for rhetoric and declamation; it may inflame\nthe passions of the unthinking, and may confirm the prejudices of the\nmisthinking: but cool and candid people will at once reflect, that the\npurest of human blessings must have a portion of alloy in them; that the\nchoice must always be made, if not of the lesser evil, at least of the\nGREATER, not the PERFECT, good; and that in every political institution,\na power to advance the public happiness involves a discretion which may\nbe misapplied and abused. They will see, therefore, that in all cases\nwhere power is to be conferred, the point first to be decided is,\nwhether such a power be necessary to the public good; as the next will\nbe, in case of an affirmative decision, to guard as effectually as\npossible against a perversion of the power to the public detriment.\n\nThat we may form a correct judgment on this subject, it will be proper\nto review the several powers conferred on the government of the Union;\nand that this may be the more conveniently done they may be reduced into\ndifferent classes as they relate to the following different objects: 1.\nSecurity against foreign danger; 2. Regulation of the intercourse with\nforeign nations; 3. Maintenance of harmony and proper intercourse among\nthe States; 4. Certain miscellaneous objects of general utility; 5.\nRestraint of the States from certain injurious acts; 6. Provisions for\ngiving due efficacy to all these powers.\n\nThe powers falling within the FIRST class are those of declaring war\nand granting letters of marque; of providing armies and fleets; of\nregulating and calling forth the militia; of levying and borrowing\nmoney.\n\nSecurity against foreign danger is one of the primitive objects of civil\nsociety. It is an avowed and essential object of the American Union. The\npowers requisite for attaining it must be effectually confided to the\nfederal councils.\n\nIs the power of declaring war necessary? No man will answer this\nquestion in the negative. It would be superfluous, therefore, to enter\ninto a proof of the affirmative. The existing Confederation establishes\nthis power in the most ample form.\n\nIs the power of raising armies and equipping fleets necessary? This\nis involved in the foregoing power. It is involved in the power of\nself-defense.\n\nBut was it necessary to give an INDEFINITE POWER of raising TROOPS, as\nwell as providing fleets; and of maintaining both in PEACE, as well as\nin WAR?\n\nThe answer to these questions has been too far anticipated in another\nplace to admit an extensive discussion of them in this place. The answer\nindeed seems to be so obvious and conclusive as scarcely to justify such\na discussion in any place. With what color of propriety could the force\nnecessary for defense be limited by those who cannot limit the force\nof offense? If a federal Constitution could chain the ambition or set\nbounds to the exertions of all other nations, then indeed might it\nprudently chain the discretion of its own government, and set bounds to\nthe exertions for its own safety.\n\nHow could a readiness for war in time of peace be safely prohibited,\nunless we could prohibit, in like manner, the preparations and\nestablishments of every hostile nation? The means of security can only\nbe regulated by the means and the danger of attack. They will, in fact,\nbe ever determined by these rules, and by no others. It is in vain to\noppose constitutional barriers to the impulse of self-preservation.\nIt is worse than in vain; because it plants in the Constitution itself\nnecessary usurpations of power, every precedent of which is a germ\nof unnecessary and multiplied repetitions. If one nation maintains\nconstantly a disciplined army, ready for the service of ambition or\nrevenge, it obliges the most pacific nations who may be within the reach\nof its enterprises to take corresponding precautions. The fifteenth\ncentury was the unhappy epoch of military establishments in the time of\npeace. They were introduced by Charles VII. of France. All Europe has\nfollowed, or been forced into, the example. Had the example not been\nfollowed by other nations, all Europe must long ago have worn the chains\nof a universal monarch. Were every nation except France now to disband\nits peace establishments, the same event might follow. The veteran\nlegions of Rome were an overmatch for the undisciplined valor of all\nother nations and rendered her the mistress of the world.\n\nNot the less true is it, that the liberties of Rome proved the final\nvictim to her military triumphs; and that the liberties of Europe, as\nfar as they ever existed, have, with few exceptions, been the price\nof her military establishments. A standing force, therefore, is a\ndangerous, at the same time that it may be a necessary, provision. On\nthe smallest scale it has its inconveniences. On an extensive scale\nits consequences may be fatal. On any scale it is an object of laudable\ncircumspection and precaution. A wise nation will combine all these\nconsiderations; and, whilst it does not rashly preclude itself from any\nresource which may become essential to its safety, will exert all its\nprudence in diminishing both the necessity and the danger of resorting\nto one which may be inauspicious to its liberties.\n\nThe clearest marks of this prudence are stamped on the proposed\nConstitution. The Union itself, which it cements and secures, destroys\nevery pretext for a military establishment which could be dangerous.\nAmerica united, with a handful of troops, or without a single soldier,\nexhibits a more forbidding posture to foreign ambition than America\ndisunited, with a hundred thousand veterans ready for combat. It was\nremarked, on a former occasion, that the want of this pretext had saved\nthe liberties of one nation in Europe. Being rendered by her insular\nsituation and her maritime resources impregnable to the armies of her\nneighbors, the rulers of Great Britain have never been able, by real\nor artificial dangers, to cheat the public into an extensive peace\nestablishment. The distance of the United States from the powerful\nnations of the world gives them the same happy security. A dangerous\nestablishment can never be necessary or plausible, so long as they\ncontinue a united people. But let it never, for a moment, be forgotten\nthat they are indebted for this advantage to the Union alone. The moment\nof its dissolution will be the date of a new order of things. The fears\nof the weaker, or the ambition of the stronger States, or Confederacies,\nwill set the same example in the New, as Charles VII. did in the Old\nWorld. The example will be followed here from the same motives which\nproduced universal imitation there. Instead of deriving from our\nsituation the precious advantage which Great Britain has derived from\nhers, the face of America will be but a copy of that of the continent\nof Europe. It will present liberty everywhere crushed between standing\narmies and perpetual taxes. The fortunes of disunited America will be\neven more disastrous than those of Europe. The sources of evil in the\nlatter are confined to her own limits. No superior powers of another\nquarter of the globe intrigue among her rival nations, inflame their\nmutual animosities, and render them the instruments of foreign ambition,\njealousy, and revenge. In America the miseries springing from her\ninternal jealousies, contentions, and wars, would form a part only of\nher lot. A plentiful addition of evils would have their source in that\nrelation in which Europe stands to this quarter of the earth, and which\nno other quarter of the earth bears to Europe.\n\nThis picture of the consequences of disunion cannot be too highly\ncolored, or too often exhibited. Every man who loves peace, every man\nwho loves his country, every man who loves liberty, ought to have it\never before his eyes, that he may cherish in his heart a due attachment\nto the Union of America, and be able to set a due value on the means of\npreserving it.\n\nNext to the effectual establishment of the Union, the best possible\nprecaution against danger from standing armies is a limitation of\nthe term for which revenue may be appropriated to their support. This\nprecaution the Constitution has prudently added. I will not repeat here\nthe observations which I flatter myself have placed this subject in a\njust and satisfactory light. But it may not be improper to take notice\nof an argument against this part of the Constitution, which has been\ndrawn from the policy and practice of Great Britain. It is said that the\ncontinuance of an army in that kingdom requires an annual vote of the\nlegislature; whereas the American Constitution has lengthened this\ncritical period to two years. This is the form in which the comparison\nis usually stated to the public: but is it a just form? Is it a fair\ncomparison? Does the British Constitution restrain the parliamentary\ndiscretion to one year? Does the American impose on the Congress\nappropriations for two years? On the contrary, it cannot be unknown to\nthe authors of the fallacy themselves, that the British Constitution\nfixes no limit whatever to the discretion of the legislature, and that\nthe American ties down the legislature to two years, as the longest\nadmissible term.\n\nHad the argument from the British example been truly stated, it would\nhave stood thus: The term for which supplies may be appropriated to the\narmy establishment, though unlimited by the British Constitution, has\nnevertheless, in practice, been limited by parliamentary discretion to\na single year. Now, if in Great Britain, where the House of Commons is\nelected for seven years; where so great a proportion of the members are\nelected by so small a proportion of the people; where the electors\nare so corrupted by the representatives, and the representatives so\ncorrupted by the Crown, the representative body can possess a power\nto make appropriations to the army for an indefinite term, without\ndesiring, or without daring, to extend the term beyond a single\nyear, ought not suspicion herself to blush, in pretending that the\nrepresentatives of the United States, elected FREELY by the WHOLE BODY\nof the people, every SECOND YEAR, cannot be safely intrusted with the\ndiscretion over such appropriations, expressly limited to the short\nperiod of TWO YEARS?\n\nA bad cause seldom fails to betray itself. Of this truth, the\nmanagement of the opposition to the federal government is an unvaried\nexemplification. But among all the blunders which have been committed,\nnone is more striking than the attempt to enlist on that side the\nprudent jealousy entertained by the people, of standing armies. The\nattempt has awakened fully the public attention to that important\nsubject; and has led to investigations which must terminate in a\nthorough and universal conviction, not only that the constitution has\nprovided the most effectual guards against danger from that quarter,\nbut that nothing short of a Constitution fully adequate to the national\ndefense and the preservation of the Union, can save America from as many\nstanding armies as it may be split into States or Confederacies, and\nfrom such a progressive augmentation, of these establishments in each,\nas will render them as burdensome to the properties and ominous to the\nliberties of the people, as any establishment that can become necessary,\nunder a united and efficient government, must be tolerable to the former\nand safe to the latter.\n\nThe palpable necessity of the power to provide and maintain a navy has\nprotected that part of the Constitution against a spirit of censure,\nwhich has spared few other parts. It must, indeed, be numbered among the\ngreatest blessings of America, that as her Union will be the only source\nof her maritime strength, so this will be a principal source of her\nsecurity against danger from abroad. In this respect our situation\nbears another likeness to the insular advantage of Great Britain. The\nbatteries most capable of repelling foreign enterprises on our safety,\nare happily such as can never be turned by a perfidious government\nagainst our liberties.\n\nThe inhabitants of the Atlantic frontier are all of them deeply\ninterested in this provision for naval protection, and if they have\nhitherto been suffered to sleep quietly in their beds; if their\nproperty has remained safe against the predatory spirit of licentious\nadventurers; if their maritime towns have not yet been compelled to\nransom themselves from the terrors of a conflagration, by yielding to\nthe exactions of daring and sudden invaders, these instances of\ngood fortune are not to be ascribed to the capacity of the existing\ngovernment for the protection of those from whom it claims allegiance,\nbut to causes that are fugitive and fallacious. If we except perhaps\nVirginia and Maryland, which are peculiarly vulnerable on their eastern\nfrontiers, no part of the Union ought to feel more anxiety on this\nsubject than New York. Her seacoast is extensive. A very important\ndistrict of the State is an island. The State itself is penetrated by a\nlarge navigable river for more than fifty leagues. The great emporium\nof its commerce, the great reservoir of its wealth, lies every moment\nat the mercy of events, and may almost be regarded as a hostage for\nignominious compliances with the dictates of a foreign enemy, or even\nwith the rapacious demands of pirates and barbarians. Should a war be\nthe result of the precarious situation of European affairs, and all the\nunruly passions attending it be let loose on the ocean, our escape from\ninsults and depredations, not only on that element, but every part of\nthe other bordering on it, will be truly miraculous. In the present\ncondition of America, the States more immediately exposed to these\ncalamities have nothing to hope from the phantom of a general government\nwhich now exists; and if their single resources were equal to the task\nof fortifying themselves against the danger, the object to be protected\nwould be almost consumed by the means of protecting them.\n\nThe power of regulating and calling forth the militia has been already\nsufficiently vindicated and explained.\n\nThe power of levying and borrowing money, being the sinew of that which\nis to be exerted in the national defense, is properly thrown into the\nsame class with it. This power, also, has been examined already with\nmuch attention, and has, I trust, been clearly shown to be necessary,\nboth in the extent and form given to it by the Constitution. I will\naddress one additional reflection only to those who contend that the\npower ought to have been restrained to external--taxation by which they\nmean, taxes on articles imported from other countries. It cannot be\ndoubted that this will always be a valuable source of revenue; that for\na considerable time it must be a principal source; that at this moment\nit is an essential one. But we may form very mistaken ideas on this\nsubject, if we do not call to mind in our calculations, that the extent\nof revenue drawn from foreign commerce must vary with the variations,\nboth in the extent and the kind of imports; and that these variations\ndo not correspond with the progress of population, which must be the\ngeneral measure of the public wants. As long as agriculture continues\nthe sole field of labor, the importation of manufactures must increase\nas the consumers multiply. As soon as domestic manufactures are begun by\nthe hands not called for by agriculture, the imported manufactures will\ndecrease as the numbers of people increase. In a more remote stage, the\nimports may consist in a considerable part of raw materials, which will\nbe wrought into articles for exportation, and will, therefore,\nrequire rather the encouragement of bounties, than to be loaded with\ndiscouraging duties. A system of government, meant for duration, ought\nto contemplate these revolutions, and be able to accommodate itself to\nthem.\n\nSome, who have not denied the necessity of the power of taxation, have\ngrounded a very fierce attack against the Constitution, on the language\nin which it is defined. It has been urged and echoed, that the power \"to\nlay and collect taxes, duties, imposts, and excises, to pay the debts,\nand provide for the common defense and general welfare of the United\nStates,\" amounts to an unlimited commission to exercise every power\nwhich may be alleged to be necessary for the common defense or general\nwelfare. No stronger proof could be given of the distress under which\nthese writers labor for objections, than their stooping to such a\nmisconstruction.\n\nHad no other enumeration or definition of the powers of the Congress\nbeen found in the Constitution, than the general expressions just cited,\nthe authors of the objection might have had some color for it; though\nit would have been difficult to find a reason for so awkward a form of\ndescribing an authority to legislate in all possible cases. A power to\ndestroy the freedom of the press, the trial by jury, or even to regulate\nthe course of descents, or the forms of conveyances, must be very\nsingularly expressed by the terms \"to raise money for the general\nwelfare.\"\n\nBut what color can the objection have, when a specification of the\nobjects alluded to by these general terms immediately follows, and is\nnot even separated by a longer pause than a semicolon? If the different\nparts of the same instrument ought to be so expounded, as to give\nmeaning to every part which will bear it, shall one part of the same\nsentence be excluded altogether from a share in the meaning; and shall\nthe more doubtful and indefinite terms be retained in their full extent,\nand the clear and precise expressions be denied any signification\nwhatsoever? For what purpose could the enumeration of particular powers\nbe inserted, if these and all others were meant to be included in the\npreceding general power? Nothing is more natural nor common than first\nto use a general phrase, and then to explain and qualify it by a recital\nof particulars. But the idea of an enumeration of particulars which\nneither explain nor qualify the general meaning, and can have no other\neffect than to confound and mislead, is an absurdity, which, as we\nare reduced to the dilemma of charging either on the authors of the\nobjection or on the authors of the Constitution, we must take the\nliberty of supposing, had not its origin with the latter.\n\nThe objection here is the more extraordinary, as it appears that\nthe language used by the convention is a copy from the articles of\nConfederation. The objects of the Union among the States, as described\nin article third, are \"their common defense, security of their\nliberties, and mutual and general welfare.\" The terms of article eighth\nare still more identical: \"All charges of war and all other expenses\nthat shall be incurred for the common defense or general welfare, and\nallowed by the United States in Congress, shall be defrayed out of a\ncommon treasury,\" etc. A similar language again occurs in article ninth.\nConstrue either of these articles by the rules which would justify the\nconstruction put on the new Constitution, and they vest in the existing\nCongress a power to legislate in all cases whatsoever. But what would\nhave been thought of that assembly, if, attaching themselves to these\ngeneral expressions, and disregarding the specifications which ascertain\nand limit their import, they had exercised an unlimited power of\nproviding for the common defense and general welfare? I appeal to the\nobjectors themselves, whether they would in that case have employed\nthe same reasoning in justification of Congress as they now make use of\nagainst the convention. How difficult it is for error to escape its own\ncondemnation!\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 42\n\nThe Powers Conferred by the Constitution Further Considered\n\nFrom the New York Packet. Tuesday, January 22, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE SECOND class of powers, lodged in the general government, consists\nof those which regulate the intercourse with foreign nations, to wit: to\nmake treaties; to send and receive ambassadors, other public ministers,\nand consuls; to define and punish piracies and felonies committed on the\nhigh seas, and offenses against the law of nations; to regulate foreign\ncommerce, including a power to prohibit, after the year 1808, the\nimportation of slaves, and to lay an intermediate duty of ten dollars\nper head, as a discouragement to such importations.\n\nThis class of powers forms an obvious and essential branch of the\nfederal administration. If we are to be one nation in any respect, it\nclearly ought to be in respect to other nations.\n\nThe powers to make treaties and to send and receive ambassadors, speak\ntheir own propriety. Both of them are comprised in the articles\nof Confederation, with this difference only, that the former is\ndisembarrassed, by the plan of the convention, of an exception, under\nwhich treaties might be substantially frustrated by regulations of\nthe States; and that a power of appointing and receiving \"other public\nministers and consuls,\" is expressly and very properly added to the\nformer provision concerning ambassadors. The term ambassador, if taken\nstrictly, as seems to be required by the second of the articles of\nConfederation, comprehends the highest grade only of public ministers,\nand excludes the grades which the United States will be most likely to\nprefer, where foreign embassies may be necessary. And under no latitude\nof construction will the term comprehend consuls. Yet it has been found\nexpedient, and has been the practice of Congress, to employ the inferior\ngrades of public ministers, and to send and receive consuls.\n\nIt is true, that where treaties of commerce stipulate for the mutual\nappointment of consuls, whose functions are connected with commerce,\nthe admission of foreign consuls may fall within the power of making\ncommercial treaties; and that where no such treaties exist, the mission\nof American consuls into foreign countries may PERHAPS be covered under\nthe authority, given by the ninth article of the Confederation, to\nappoint all such civil officers as may be necessary for managing the\ngeneral affairs of the United States. But the admission of consuls into\nthe United States, where no previous treaty has stipulated it, seems to\nhave been nowhere provided for. A supply of the omission is one of the\nlesser instances in which the convention have improved on the model\nbefore them. But the most minute provisions become important when they\ntend to obviate the necessity or the pretext for gradual and unobserved\nusurpations of power. A list of the cases in which Congress have been\nbetrayed, or forced by the defects of the Confederation, into violations\nof their chartered authorities, would not a little surprise those who\nhave paid no attention to the subject; and would be no inconsiderable\nargument in favor of the new Constitution, which seems to have provided\nno less studiously for the lesser, than the more obvious and striking\ndefects of the old.\n\nThe power to define and punish piracies and felonies committed on the\nhigh seas, and offenses against the law of nations, belongs with equal\npropriety to the general government, and is a still greater improvement\non the articles of Confederation. These articles contain no provision\nfor the case of offenses against the law of nations; and consequently\nleave it in the power of any indiscreet member to embroil the\nConfederacy with foreign nations. The provision of the federal articles\non the subject of piracies and felonies extends no further than to the\nestablishment of courts for the trial of these offenses. The definition\nof piracies might, perhaps, without inconveniency, be left to the law\nof nations; though a legislative definition of them is found in most\nmunicipal codes. A definition of felonies on the high seas is evidently\nrequisite. Felony is a term of loose signification, even in the common\nlaw of England; and of various import in the statute law of that\nkingdom. But neither the common nor the statute law of that, or of any\nother nation, ought to be a standard for the proceedings of this, unless\npreviously made its own by legislative adoption. The meaning of the\nterm, as defined in the codes of the several States, would be as\nimpracticable as the former would be a dishonorable and illegitimate\nguide. It is not precisely the same in any two of the States; and\nvaries in each with every revision of its criminal laws. For the sake of\ncertainty and uniformity, therefore, the power of defining felonies in\nthis case was in every respect necessary and proper.\n\nThe regulation of foreign commerce, having fallen within several views\nwhich have been taken of this subject, has been too fully discussed\nto need additional proofs here of its being properly submitted to the\nfederal administration.\n\nIt were doubtless to be wished, that the power of prohibiting the\nimportation of slaves had not been postponed until the year 1808, or\nrather that it had been suffered to have immediate operation. But it\nis not difficult to account, either for this restriction on the general\ngovernment, or for the manner in which the whole clause is expressed.\nIt ought to be considered as a great point gained in favor of humanity,\nthat a period of twenty years may terminate forever, within these\nStates, a traffic which has so long and so loudly upbraided the\nbarbarism of modern policy; that within that period, it will receive\na considerable discouragement from the federal government, and may be\ntotally abolished, by a concurrence of the few States which continue the\nunnatural traffic, in the prohibitory example which has been given by\nso great a majority of the Union. Happy would it be for the unfortunate\nAfricans, if an equal prospect lay before them of being redeemed from\nthe oppressions of their European brethren!\n\nAttempts have been made to pervert this clause into an objection\nagainst the Constitution, by representing it on one side as a criminal\ntoleration of an illicit practice, and on another as calculated to\nprevent voluntary and beneficial emigrations from Europe to America. I\nmention these misconstructions, not with a view to give them an answer,\nfor they deserve none, but as specimens of the manner and spirit in\nwhich some have thought fit to conduct their opposition to the proposed\ngovernment.\n\nThe powers included in the THIRD class are those which provide for the\nharmony and proper intercourse among the States.\n\nUnder this head might be included the particular restraints imposed\non the authority of the States, and certain powers of the judicial\ndepartment; but the former are reserved for a distinct class, and the\nlatter will be particularly examined when we arrive at the structure\nand organization of the government. I shall confine myself to a\ncursory review of the remaining powers comprehended under this third\ndescription, to wit: to regulate commerce among the several States and\nthe Indian tribes; to coin money, regulate the value thereof, and\nof foreign coin; to provide for the punishment of counterfeiting the\ncurrent coin and securities of the United States; to fix the standard of\nweights and measures; to establish a uniform rule of naturalization, and\nuniform laws of bankruptcy, to prescribe the manner in which the public\nacts, records, and judicial proceedings of each State shall be proved,\nand the effect they shall have in other States; and to establish post\noffices and post roads.\n\nThe defect of power in the existing Confederacy to regulate the commerce\nbetween its several members, is in the number of those which have been\nclearly pointed out by experience. To the proofs and remarks which\nformer papers have brought into view on this subject, it may be added\nthat without this supplemental provision, the great and essential\npower of regulating foreign commerce would have been incomplete and\nineffectual. A very material object of this power was the relief of the\nStates which import and export through other States, from the improper\ncontributions levied on them by the latter. Were these at liberty to\nregulate the trade between State and State, it must be foreseen that\nways would be found out to load the articles of import and export,\nduring the passage through their jurisdiction, with duties which would\nfall on the makers of the latter and the consumers of the former. We may\nbe assured by past experience, that such a practice would be introduced\nby future contrivances; and both by that and a common knowledge of human\naffairs, that it would nourish unceasing animosities, and not improbably\nterminate in serious interruptions of the public tranquillity. To\nthose who do not view the question through the medium of passion or of\ninterest, the desire of the commercial States to collect, in any form,\nan indirect revenue from their uncommercial neighbors, must appear not\nless impolitic than it is unfair; since it would stimulate the injured\nparty, by resentment as well as interest, to resort to less convenient\nchannels for their foreign trade. But the mild voice of reason, pleading\nthe cause of an enlarged and permanent interest, is but too often\ndrowned, before public bodies as well as individuals, by the clamors of\nan impatient avidity for immediate and immoderate gain.\n\nThe necessity of a superintending authority over the reciprocal trade of\nconfederated States, has been illustrated by other examples as well as\nour own. In Switzerland, where the Union is so very slight, each canton\nis obliged to allow to merchandises a passage through its jurisdiction\ninto other cantons, without an augmentation of the tolls. In Germany it\nis a law of the empire, that the princes and states shall not lay tolls\nor customs on bridges, rivers, or passages, without the consent of\nthe emperor and the diet; though it appears from a quotation in an\nantecedent paper, that the practice in this, as in many other instances\nin that confederacy, has not followed the law, and has produced there\nthe mischiefs which have been foreseen here. Among the restraints\nimposed by the Union of the Netherlands on its members, one is, that\nthey shall not establish imposts disadvantageous to their neighbors,\nwithout the general permission.\n\nThe regulation of commerce with the Indian tribes is very properly\nunfettered from two limitations in the articles of Confederation, which\nrender the provision obscure and contradictory. The power is there\nrestrained to Indians, not members of any of the States, and is not to\nviolate or infringe the legislative right of any State within its own\nlimits. What description of Indians are to be deemed members of a State,\nis not yet settled, and has been a question of frequent perplexity and\ncontention in the federal councils. And how the trade with Indians,\nthough not members of a State, yet residing within its legislative\njurisdiction, can be regulated by an external authority, without so\nfar intruding on the internal rights of legislation, is absolutely\nincomprehensible. This is not the only case in which the articles\nof Confederation have inconsiderately endeavored to accomplish\nimpossibilities; to reconcile a partial sovereignty in the Union, with\ncomplete sovereignty in the States; to subvert a mathematical axiom, by\ntaking away a part, and letting the whole remain.\n\nAll that need be remarked on the power to coin money, regulate the value\nthereof, and of foreign coin, is, that by providing for this last case,\nthe Constitution has supplied a material omission in the articles of\nConfederation. The authority of the existing Congress is restrained to\nthe regulation of coin STRUCK by their own authority, or that of the\nrespective States. It must be seen at once that the proposed uniformity\nin the VALUE of the current coin might be destroyed by subjecting that\nof foreign coin to the different regulations of the different States.\n\nThe punishment of counterfeiting the public securities, as well as\nthe current coin, is submitted of course to that authority which is to\nsecure the value of both.\n\nThe regulation of weights and measures is transferred from the articles\nof Confederation, and is founded on like considerations with the\npreceding power of regulating coin.\n\nThe dissimilarity in the rules of naturalization has long been remarked\nas a fault in our system, and as laying a foundation for intricate and\ndelicate questions. In the fourth article of the Confederation, it is\ndeclared \"that the FREE INHABITANTS of each of these States, paupers,\nvagabonds, and fugitives from justice, excepted, shall be entitled to\nall privileges and immunities of FREE CITIZENS in the several States;\nand THE PEOPLE of each State shall, in every other, enjoy all the\nprivileges of trade and commerce,\" etc. There is a confusion of language\nhere, which is remarkable. Why the terms FREE INHABITANTS are used\nin one part of the article, FREE CITIZENS in another, and PEOPLE\nin another; or what was meant by superadding to \"all privileges\nand immunities of free citizens,\" \"all the privileges of trade and\ncommerce,\" cannot easily be determined. It seems to be a construction\nscarcely avoidable, however, that those who come under the denomination\nof FREE INHABITANTS of a State, although not citizens of such State, are\nentitled, in every other State, to all the privileges of FREE CITIZENS\nof the latter; that is, to greater privileges than they may be entitled\nto in their own State: so that it may be in the power of a particular\nState, or rather every State is laid under a necessity, not only to\nconfer the rights of citizenship in other States upon any whom it may\nadmit to such rights within itself, but upon any whom it may allow to\nbecome inhabitants within its jurisdiction. But were an exposition of\nthe term \"inhabitants\" to be admitted which would confine the stipulated\nprivileges to citizens alone, the difficulty is diminished only, not\nremoved. The very improper power would still be retained by each State,\nof naturalizing aliens in every other State. In one State, residence\nfor a short term confirms all the rights of citizenship: in another,\nqualifications of greater importance are required. An alien, therefore,\nlegally incapacitated for certain rights in the latter, may, by previous\nresidence only in the former, elude his incapacity; and thus the law of\none State be preposterously rendered paramount to the law of another,\nwithin the jurisdiction of the other. We owe it to mere casualty, that\nvery serious embarrassments on this subject have been hitherto escaped.\nBy the laws of several States, certain descriptions of aliens, who had\nrendered themselves obnoxious, were laid under interdicts inconsistent\nnot only with the rights of citizenship but with the privilege of\nresidence. What would have been the consequence, if such persons, by\nresidence or otherwise, had acquired the character of citizens under the\nlaws of another State, and then asserted their rights as such, both to\nresidence and citizenship, within the State proscribing them? Whatever\nthe legal consequences might have been, other consequences would\nprobably have resulted, of too serious a nature not to be provided\nagainst. The new Constitution has accordingly, with great propriety,\nmade provision against them, and all others proceeding from the defect\nof the Confederation on this head, by authorizing the general government\nto establish a uniform rule of naturalization throughout the United\nStates.\n\nThe power of establishing uniform laws of bankruptcy is so intimately\nconnected with the regulation of commerce, and will prevent so many\nfrauds where the parties or their property may lie or be removed into\ndifferent States, that the expediency of it seems not likely to be drawn\ninto question.\n\nThe power of prescribing by general laws, the manner in which the public\nacts, records and judicial proceedings of each State shall be proved,\nand the effect they shall have in other States, is an evident and\nvaluable improvement on the clause relating to this subject in the\narticles of Confederation. The meaning of the latter is extremely\nindeterminate, and can be of little importance under any interpretation\nwhich it will bear. The power here established may be rendered a very\nconvenient instrument of justice, and be particularly beneficial on the\nborders of contiguous States, where the effects liable to justice may be\nsuddenly and secretly translated, in any stage of the process, within a\nforeign jurisdiction.\n\nThe power of establishing post roads must, in every view, be a harmless\npower, and may, perhaps, by judicious management, become productive\nof great public conveniency. Nothing which tends to facilitate the\nintercourse between the States can be deemed unworthy of the public\ncare.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 43\n\nThe Same Subject Continued (The Powers Conferred by the Constitution\nFurther Considered)\n\nFor the Independent Journal. Wednesday, January 23, 1788\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE FOURTH class comprises the following miscellaneous powers:\n\n1. A power \"to promote the progress of science and useful arts, by\nsecuring, for a limited time, to authors and inventors, the exclusive\nright to their respective writings and discoveries.\"\n\nThe utility of this power will scarcely be questioned. The copyright of\nauthors has been solemnly adjudged, in Great Britain, to be a right of\ncommon law. The right to useful inventions seems with equal reason to\nbelong to the inventors. The public good fully coincides in both cases\nwith the claims of individuals. The States cannot separately make\neffectual provisions for either of the cases, and most of them have\nanticipated the decision of this point, by laws passed at the instance\nof Congress.\n\n2. \"To exercise exclusive legislation, in all cases whatsoever, over\nsuch district (not exceeding ten miles square) as may, by cession of\nparticular States and the acceptance of Congress, become the seat of the\ngovernment of the United States; and to exercise like authority over\nall places purchased by the consent of the legislatures of the States in\nwhich the same shall be, for the erection of forts, magazines, arsenals,\ndockyards, and other needful buildings.\"\n\nThe indispensable necessity of complete authority at the seat of\ngovernment, carries its own evidence with it. It is a power exercised by\nevery legislature of the Union, I might say of the world, by virtue of\nits general supremacy. Without it, not only the public authority\nmight be insulted and its proceedings interrupted with impunity; but\na dependence of the members of the general government on the State\ncomprehending the seat of the government, for protection in the exercise\nof their duty, might bring on the national councils an imputation of awe\nor influence, equally dishonorable to the government and dissatisfactory\nto the other members of the Confederacy. This consideration has the\nmore weight, as the gradual accumulation of public improvements at the\nstationary residence of the government would be both too great a public\npledge to be left in the hands of a single State, and would create\nso many obstacles to a removal of the government, as still further to\nabridge its necessary independence. The extent of this federal district\nis sufficiently circumscribed to satisfy every jealousy of an opposite\nnature. And as it is to be appropriated to this use with the consent of\nthe State ceding it; as the State will no doubt provide in the compact\nfor the rights and the consent of the citizens inhabiting it; as the\ninhabitants will find sufficient inducements of interest to become\nwilling parties to the cession; as they will have had their voice in the\nelection of the government which is to exercise authority over them;\nas a municipal legislature for local purposes, derived from their own\nsuffrages, will of course be allowed them; and as the authority of the\nlegislature of the State, and of the inhabitants of the ceded part of\nit, to concur in the cession, will be derived from the whole people\nof the State in their adoption of the Constitution, every imaginable\nobjection seems to be obviated.\n\nThe necessity of a like authority over forts, magazines, etc.,\nestablished by the general government, is not less evident. The public\nmoney expended on such places, and the public property deposited in\nthem, requires that they should be exempt from the authority of the\nparticular State. Nor would it be proper for the places on which the\nsecurity of the entire Union may depend, to be in any degree dependent\non a particular member of it. All objections and scruples are here also\nobviated, by requiring the concurrence of the States concerned, in every\nsuch establishment.\n\n3. \"To declare the punishment of treason, but no attainder of treason\nshall work corruption of blood, or forfeiture, except during the life of\nthe person attained.\"\n\nAs treason may be committed against the United States, the authority of\nthe United States ought to be enabled to punish it. But as new-fangled\nand artificial treasons have been the great engines by which violent\nfactions, the natural offspring of free government, have usually wreaked\ntheir alternate malignity on each other, the convention have, with great\njudgment, opposed a barrier to this peculiar danger, by inserting a\nconstitutional definition of the crime, fixing the proof necessary for\nconviction of it, and restraining the Congress, even in punishing\nit, from extending the consequences of guilt beyond the person of its\nauthor.\n\n4. \"To admit new States into the Union; but no new State shall be formed\nor erected within the jurisdiction of any other State; nor any State\nbe formed by the junction of two or more States, or parts of States,\nwithout the consent of the legislatures of the States concerned, as well\nas of the Congress.\"\n\nIn the articles of Confederation, no provision is found on this\nimportant subject. Canada was to be admitted of right, on her joining in\nthe measures of the United States; and the other COLONIES, by which were\nevidently meant the other British colonies, at the discretion of nine\nStates. The eventual establishment of NEW STATES seems to have been\noverlooked by the compilers of that instrument. We have seen the\ninconvenience of this omission, and the assumption of power into which\nCongress have been led by it. With great propriety, therefore, has the\nnew system supplied the defect. The general precaution, that no\nnew States shall be formed, without the concurrence of the federal\nauthority, and that of the States concerned, is consonant to the\nprinciples which ought to govern such transactions. The particular\nprecaution against the erection of new States, by the partition of a\nState without its consent, quiets the jealousy of the larger States; as\nthat of the smaller is quieted by a like precaution, against a junction\nof States without their consent.\n\n5. \"To dispose of and make all needful rules and regulations respecting\nthe territory or other property belonging to the United States,\" with a\nproviso, that \"nothing in the Constitution shall be so construed as to\nprejudice any claims of the United States, or of any particular State.\"\n\nThis is a power of very great importance, and required by considerations\nsimilar to those which show the propriety of the former. The proviso\nannexed is proper in itself, and was probably rendered absolutely\nnecessary by jealousies and questions concerning the Western territory\nsufficiently known to the public.\n\n6. \"To guarantee to every State in the Union a republican form of\ngovernment; to protect each of them against invasion; and on application\nof the legislature, or of the executive (when the legislature cannot be\nconvened), against domestic violence.\"\n\nIn a confederacy founded on republican principles, and composed of\nrepublican members, the superintending government ought clearly\nto possess authority to defend the system against aristocratic or\nmonarchial innovations. The more intimate the nature of such a union may\nbe, the greater interest have the members in the political institutions\nof each other; and the greater right to insist that the forms\nof government under which the compact was entered into should be\nSUBSTANTIALLY maintained. But a right implies a remedy; and where\nelse could the remedy be deposited, than where it is deposited by the\nConstitution? Governments of dissimilar principles and forms have been\nfound less adapted to a federal coalition of any sort, than those of\na kindred nature. \"As the confederate republic of Germany,\" says\nMontesquieu, \"consists of free cities and petty states, subject to\ndifferent princes, experience shows us that it is more imperfect than\nthat of Holland and Switzerland.\" \"Greece was undone,\" he adds, \"as soon\nas the king of Macedon obtained a seat among the Amphictyons.\" In\nthe latter case, no doubt, the disproportionate force, as well as the\nmonarchical form, of the new confederate, had its share of influence on\nthe events. It may possibly be asked, what need there could be of such\na precaution, and whether it may not become a pretext for alterations in\nthe State governments, without the concurrence of the States themselves.\nThese questions admit of ready answers. If the interposition of the\ngeneral government should not be needed, the provision for such an event\nwill be a harmless superfluity only in the Constitution. But who can say\nwhat experiments may be produced by the caprice of particular States, by\nthe ambition of enterprising leaders, or by the intrigues and influence\nof foreign powers? To the second question it may be answered, that if\nthe general government should interpose by virtue of this constitutional\nauthority, it will be, of course, bound to pursue the authority. But the\nauthority extends no further than to a GUARANTY of a republican form of\ngovernment, which supposes a pre-existing government of the form which\nis to be guaranteed. As long, therefore, as the existing republican\nforms are continued by the States, they are guaranteed by the federal\nConstitution. Whenever the States may choose to substitute other\nrepublican forms, they have a right to do so, and to claim the federal\nguaranty for the latter. The only restriction imposed on them is, that\nthey shall not exchange republican for antirepublican Constitutions;\na restriction which, it is presumed, will hardly be considered as a\ngrievance.\n\nA protection against invasion is due from every society to the parts\ncomposing it. The latitude of the expression here used seems to secure\neach State, not only against foreign hostility, but against ambitious or\nvindictive enterprises of its more powerful neighbors. The history, both\nof ancient and modern confederacies, proves that the weaker members of\nthe union ought not to be insensible to the policy of this article.\n\nProtection against domestic violence is added with equal propriety. It\nhas been remarked, that even among the Swiss cantons, which, properly\nspeaking, are not under one government, provision is made for this\nobject; and the history of that league informs us that mutual aid is\nfrequently claimed and afforded; and as well by the most democratic,\nas the other cantons. A recent and well-known event among ourselves has\nwarned us to be prepared for emergencies of a like nature.\n\nAt first view, it might seem not to square with the republican theory,\nto suppose, either that a majority have not the right, or that a\nminority will have the force, to subvert a government; and consequently,\nthat the federal interposition can never be required, but when it would\nbe improper. But theoretic reasoning, in this as in most other cases,\nmust be qualified by the lessons of practice. Why may not illicit\ncombinations, for purposes of violence, be formed as well by a majority\nof a State, especially a small State as by a majority of a county, or a\ndistrict of the same State; and if the authority of the State ought, in\nthe latter case, to protect the local magistracy, ought not the federal\nauthority, in the former, to support the State authority? Besides, there\nare certain parts of the State constitutions which are so interwoven\nwith the federal Constitution, that a violent blow cannot be given to\nthe one without communicating the wound to the other. Insurrections in\na State will rarely induce a federal interposition, unless the number\nconcerned in them bear some proportion to the friends of government. It\nwill be much better that the violence in such cases should be repressed\nby the superintending power, than that the majority should be left to\nmaintain their cause by a bloody and obstinate contest. The existence of\na right to interpose, will generally prevent the necessity of exerting\nit.\n\nIs it true that force and right are necessarily on the same side\nin republican governments? May not the minor party possess such a\nsuperiority of pecuniary resources, of military talents and experience,\nor of secret succors from foreign powers, as will render it superior\nalso in an appeal to the sword? May not a more compact and advantageous\nposition turn the scale on the same side, against a superior number so\nsituated as to be less capable of a prompt and collected exertion of its\nstrength? Nothing can be more chimerical than to imagine that in a trial\nof actual force, victory may be calculated by the rules which prevail\nin a census of the inhabitants, or which determine the event of an\nelection! May it not happen, in fine, that the minority of CITIZENS may\nbecome a majority of PERSONS, by the accession of alien residents, of\na casual concourse of adventurers, or of those whom the constitution of\nthe State has not admitted to the rights of suffrage? I take no notice\nof an unhappy species of population abounding in some of the States,\nwho, during the calm of regular government, are sunk below the level of\nmen; but who, in the tempestuous scenes of civil violence, may emerge\ninto the human character, and give a superiority of strength to any\nparty with which they may associate themselves.\n\nIn cases where it may be doubtful on which side justice lies, what\nbetter umpires could be desired by two violent factions, flying to arms,\nand tearing a State to pieces, than the representatives of confederate\nStates, not heated by the local flame? To the impartiality of judges,\nthey would unite the affection of friends. Happy would it be if such a\nremedy for its infirmities could be enjoyed by all free governments; if\na project equally effectual could be established for the universal peace\nof mankind!\n\nShould it be asked, what is to be the redress for an insurrection\npervading all the States, and comprising a superiority of the entire\nforce, though not a constitutional right? the answer must be, that such\na case, as it would be without the compass of human remedies, so it is\nfortunately not within the compass of human probability; and that it\nis a sufficient recommendation of the federal Constitution, that it\ndiminishes the risk of a calamity for which no possible constitution can\nprovide a cure.\n\nAmong the advantages of a confederate republic enumerated by\nMontesquieu, an important one is, \"that should a popular insurrection\nhappen in one of the States, the others are able to quell it. Should\nabuses creep into one part, they are reformed by those that remain\nsound.\"\n\n7. \"To consider all debts contracted, and engagements entered into,\nbefore the adoption of this Constitution, as being no less valid\nagainst the United States, under this Constitution, than under the\nConfederation.\"\n\nThis can only be considered as a declaratory proposition; and may have\nbeen inserted, among other reasons, for the satisfaction of the foreign\ncreditors of the United States, who cannot be strangers to the pretended\ndoctrine, that a change in the political form of civil society has the\nmagical effect of dissolving its moral obligations.\n\nAmong the lesser criticisms which have been exercised on the\nConstitution, it has been remarked that the validity of engagements\nought to have been asserted in favor of the United States, as well\nas against them; and in the spirit which usually characterizes little\ncritics, the omission has been transformed and magnified into a plot\nagainst the national rights. The authors of this discovery may be told,\nwhat few others need to be informed of, that as engagements are in\ntheir nature reciprocal, an assertion of their validity on one side,\nnecessarily involves a validity on the other side; and that as the\narticle is merely declaratory, the establishment of the principle in one\ncase is sufficient for every case. They may be further told, that\nevery constitution must limit its precautions to dangers that are\nnot altogether imaginary; and that no real danger can exist that the\ngovernment would DARE, with, or even without, this constitutional\ndeclaration before it, to remit the debts justly due to the public, on\nthe pretext here condemned.\n\n8. \"To provide for amendments to be ratified by three fourths of the\nStates under two exceptions only.\"\n\nThat useful alterations will be suggested by experience, could not but\nbe foreseen. It was requisite, therefore, that a mode for introducing\nthem should be provided. The mode preferred by the convention seems to\nbe stamped with every mark of propriety. It guards equally against that\nextreme facility, which would render the Constitution too mutable; and\nthat extreme difficulty, which might perpetuate its discovered faults.\nIt, moreover, equally enables the general and the State governments to\noriginate the amendment of errors, as they may be pointed out by the\nexperience on one side, or on the other. The exception in favor of the\nequality of suffrage in the Senate, was probably meant as a palladium\nto the residuary sovereignty of the States, implied and secured by that\nprinciple of representation in one branch of the legislature; and\nwas probably insisted on by the States particularly attached to that\nequality. The other exception must have been admitted on the same\nconsiderations which produced the privilege defended by it.\n\n9. \"The ratification of the conventions of nine States shall be\nsufficient for the establishment of this Constitution between the\nStates, ratifying the same.\"\n\nThis article speaks for itself. The express authority of the people\nalone could give due validity to the Constitution. To have required the\nunanimous ratification of the thirteen States, would have subjected\nthe essential interests of the whole to the caprice or corruption of\na single member. It would have marked a want of foresight in the\nconvention, which our own experience would have rendered inexcusable.\n\nTwo questions of a very delicate nature present themselves on this\noccasion: 1. On what principle the Confederation, which stands in the\nsolemn form of a compact among the States, can be superseded without the\nunanimous consent of the parties to it? 2. What relation is to subsist\nbetween the nine or more States ratifying the Constitution, and the\nremaining few who do not become parties to it?\n\nThe first question is answered at once by recurring to the absolute\nnecessity of the case; to the great principle of self-preservation; to\nthe transcendent law of nature and of nature's God, which declares\nthat the safety and happiness of society are the objects at which all\npolitical institutions aim, and to which all such institutions must\nbe sacrificed. PERHAPS, also, an answer may be found without searching\nbeyond the principles of the compact itself. It has been heretofore\nnoted among the defects of the Confederation, that in many of the States\nit had received no higher sanction than a mere legislative ratification.\nThe principle of reciprocality seems to require that its obligation\non the other States should be reduced to the same standard. A compact\nbetween independent sovereigns, founded on ordinary acts of legislative\nauthority, can pretend to no higher validity than a league or treaty\nbetween the parties. It is an established doctrine on the subject of\ntreaties, that all the articles are mutually conditions of each other;\nthat a breach of any one article is a breach of the whole treaty; and\nthat a breach, committed by either of the parties, absolves the others,\nand authorizes them, if they please, to pronounce the compact violated\nand void. Should it unhappily be necessary to appeal to these delicate\ntruths for a justification for dispensing with the consent of particular\nStates to a dissolution of the federal pact, will not the complaining\nparties find it a difficult task to answer the MULTIPLIED and IMPORTANT\ninfractions with which they may be confronted? The time has been when it\nwas incumbent on us all to veil the ideas which this paragraph exhibits.\nThe scene is now changed, and with it the part which the same motives\ndictate.\n\nThe second question is not less delicate; and the flattering prospect of\nits being merely hypothetical forbids an overcurious discussion of it.\nIt is one of those cases which must be left to provide for itself. In\ngeneral, it may be observed, that although no political relation can\nsubsist between the assenting and dissenting States, yet the moral\nrelations will remain uncancelled. The claims of justice, both on one\nside and on the other, will be in force, and must be fulfilled; the\nrights of humanity must in all cases be duly and mutually respected;\nwhilst considerations of a common interest, and, above all, the\nremembrance of the endearing scenes which are past, and the anticipation\nof a speedy triumph over the obstacles to reunion, will, it is hoped,\nnot urge in vain MODERATION on one side, and PRUDENCE on the other.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 44\n\nRestrictions on the Authority of the Several States\n\nFrom the New York Packet. Friday, January 25, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nA FIFTH class of provisions in favor of the federal authority consists\nof the following restrictions on the authority of the several States:\n\n1. \"No State shall enter into any treaty, alliance, or confederation;\ngrant letters of marque and reprisal; coin money; emit bills of credit;\nmake any thing but gold and silver a legal tender in payment of debts;\npass any bill of attainder, ex post facto law, or law impairing the\nobligation of contracts; or grant any title of nobility.\"\n\nThe prohibition against treaties, alliances, and confederations makes\na part of the existing articles of Union; and for reasons which need\nno explanation, is copied into the new Constitution. The prohibition\nof letters of marque is another part of the old system, but is somewhat\nextended in the new. According to the former, letters of marque could\nbe granted by the States after a declaration of war; according to the\nlatter, these licenses must be obtained, as well during war as previous\nto its declaration, from the government of the United States. This\nalteration is fully justified by the advantage of uniformity in all\npoints which relate to foreign powers; and of immediate responsibility\nto the nation in all those for whose conduct the nation itself is to be\nresponsible.\n\nThe right of coining money, which is here taken from the States, was\nleft in their hands by the Confederation, as a concurrent right with\nthat of Congress, under an exception in favor of the exclusive right of\nCongress to regulate the alloy and value. In this instance, also, the\nnew provision is an improvement on the old. Whilst the alloy and value\ndepended on the general authority, a right of coinage in the particular\nStates could have no other effect than to multiply expensive mints and\ndiversify the forms and weights of the circulating pieces. The latter\ninconveniency defeats one purpose for which the power was originally\nsubmitted to the federal head; and as far as the former might prevent\nan inconvenient remittance of gold and silver to the central mint for\nrecoinage, the end can be as well attained by local mints established\nunder the general authority.\n\nThe extension of the prohibition to bills of credit must give pleasure\nto every citizen, in proportion to his love of justice and his knowledge\nof the true springs of public prosperity. The loss which America has\nsustained since the peace, from the pestilent effects of paper money\non the necessary confidence between man and man, on the necessary\nconfidence in the public councils, on the industry and morals of the\npeople, and on the character of republican government, constitutes an\nenormous debt against the States chargeable with this unadvised measure,\nwhich must long remain unsatisfied; or rather an accumulation of guilt,\nwhich can be expiated no otherwise than by a voluntary sacrifice on the\naltar of justice, of the power which has been the instrument of it. In\naddition to these persuasive considerations, it may be observed, that\nthe same reasons which show the necessity of denying to the States the\npower of regulating coin, prove with equal force that they ought not\nto be at liberty to substitute a paper medium in the place of coin. Had\nevery State a right to regulate the value of its coin, there might be as\nmany different currencies as States, and thus the intercourse among them\nwould be impeded; retrospective alterations in its value might be made,\nand thus the citizens of other States be injured, and animosities be\nkindled among the States themselves. The subjects of foreign powers\nmight suffer from the same cause, and hence the Union be discredited\nand embroiled by the indiscretion of a single member. No one of these\nmischiefs is less incident to a power in the States to emit paper money,\nthan to coin gold or silver. The power to make any thing but gold and\nsilver a tender in payment of debts, is withdrawn from the States, on\nthe same principle with that of issuing a paper currency.\n\nBills of attainder, ex post facto laws, and laws impairing the\nobligation of contracts, are contrary to the first principles of the\nsocial compact, and to every principle of sound legislation. The two\nformer are expressly prohibited by the declarations prefixed to some of\nthe State constitutions, and all of them are prohibited by the spirit\nand scope of these fundamental charters. Our own experience has taught\nus, nevertheless, that additional fences against these dangers ought not\nto be omitted. Very properly, therefore, have the convention added this\nconstitutional bulwark in favor of personal security and private rights;\nand I am much deceived if they have not, in so doing, as faithfully\nconsulted the genuine sentiments as the undoubted interests of their\nconstituents. The sober people of America are weary of the fluctuating\npolicy which has directed the public councils. They have seen\nwith regret and indignation that sudden changes and legislative\ninterferences, in cases affecting personal rights, become jobs in the\nhands of enterprising and influential speculators, and snares to the\nmore-industrious and less-informed part of the community. They have seen,\ntoo, that one legislative interference is but the first link of a long\nchain of repetitions, every subsequent interference being naturally\nproduced by the effects of the preceding. They very rightly infer,\ntherefore, that some thorough reform is wanting, which will banish\nspeculations on public measures, inspire a general prudence and\nindustry, and give a regular course to the business of society. The\nprohibition with respect to titles of nobility is copied from the\narticles of Confederation and needs no comment.\n\n2. \"No State shall, without the consent of the Congress, lay any imposts\nor duties on imports or exports, except what may be absolutely necessary\nfor executing its inspection laws, and the net produce of all duties and\nimposts laid by any State on imports or exports, shall be for the use of\nthe treasury of the United States; and all such laws shall be subject\nto the revision and control of the Congress. No State shall, without the\nconsent of Congress, lay any duty on tonnage, keep troops or ships of\nwar in time of peace, enter into any agreement or compact with another\nState, or with a foreign power, or engage in war unless actually\ninvaded, or in such imminent danger as will not admit of delay.\"\n\nThe restraint on the power of the States over imports and exports is\nenforced by all the arguments which prove the necessity of submitting\nthe regulation of trade to the federal councils. It is needless,\ntherefore, to remark further on this head, than that the manner in which\nthe restraint is qualified seems well calculated at once to secure to\nthe States a reasonable discretion in providing for the conveniency of\ntheir imports and exports, and to the United States a reasonable check\nagainst the abuse of this discretion. The remaining particulars of this\nclause fall within reasonings which are either so obvious, or have been\nso fully developed, that they may be passed over without remark.\n\nThe SIXTH and last class consists of the several powers and provisions\nby which efficacy is given to all the rest.\n\n1. Of these the first is, the \"power to make all laws which shall be\nnecessary and proper for carrying into execution the foregoing powers,\nand all other powers vested by this Constitution in the government of\nthe United States, or in any department or officer thereof.\"\n\nFew parts of the Constitution have been assailed with more intemperance\nthan this; yet on a fair investigation of it, no part can appear more\ncompletely invulnerable. Without the SUBSTANCE of this power, the whole\nConstitution would be a dead letter. Those who object to the article,\ntherefore, as a part of the Constitution, can only mean that the FORM\nof the provision is improper. But have they considered whether a better\nform could have been substituted?\n\nThere are four other possible methods which the Constitution might have\ntaken on this subject. They might have copied the second article of the\nexisting Confederation, which would have prohibited the exercise of\nany power not EXPRESSLY delegated; they might have attempted a\npositive enumeration of the powers comprehended under the general terms\n\"necessary and proper\"; they might have attempted a negative enumeration\nof them, by specifying the powers excepted from the general definition;\nthey might have been altogether silent on the subject, leaving these\nnecessary and proper powers to construction and inference.\n\nHad the convention taken the first method of adopting the second\narticle of Confederation, it is evident that the new Congress would be\ncontinually exposed, as their predecessors have been, to the alternative\nof construing the term \"EXPRESSLY\" with so much rigor, as to disarm the\ngovernment of all real authority whatever, or with so much latitude as\nto destroy altogether the force of the restriction. It would be easy to\nshow, if it were necessary, that no important power, delegated by the\narticles of Confederation, has been or can be executed by Congress,\nwithout recurring more or less to the doctrine of CONSTRUCTION or\nIMPLICATION. As the powers delegated under the new system are more\nextensive, the government which is to administer it would find itself\nstill more distressed with the alternative of betraying the public\ninterests by doing nothing, or of violating the Constitution by\nexercising powers indispensably necessary and proper, but, at the same\ntime, not EXPRESSLY granted.\n\nHad the convention attempted a positive enumeration of the powers\nnecessary and proper for carrying their other powers into effect, the\nattempt would have involved a complete digest of laws on every subject\nto which the Constitution relates; accommodated too, not only to the\nexisting state of things, but to all the possible changes which futurity\nmay produce; for in every new application of a general power, the\nPARTICULAR POWERS, which are the means of attaining the OBJECT of the\ngeneral power, must always necessarily vary with that object, and be\noften properly varied whilst the object remains the same.\n\nHad they attempted to enumerate the particular powers or means not\nnecessary or proper for carrying the general powers into execution, the\ntask would have been no less chimerical; and would have been liable to\nthis further objection, that every defect in the enumeration would have\nbeen equivalent to a positive grant of authority. If, to avoid this\nconsequence, they had attempted a partial enumeration of the exceptions,\nand described the residue by the general terms, NOT NECESSARY OR PROPER,\nit must have happened that the enumeration would comprehend a few of the\nexcepted powers only; that these would be such as would be least likely\nto be assumed or tolerated, because the enumeration would of course\nselect such as would be least necessary or proper; and that the\nunnecessary and improper powers included in the residuum, would be less\nforcibly excepted, than if no partial enumeration had been made.\n\nHad the Constitution been silent on this head, there can be no doubt\nthat all the particular powers requisite as means of executing the\ngeneral powers would have resulted to the government, by unavoidable\nimplication. No axiom is more clearly established in law, or in reason,\nthan that wherever the end is required, the means are authorized;\nwherever a general power to do a thing is given, every particular power\nnecessary for doing it is included. Had this last method, therefore,\nbeen pursued by the convention, every objection now urged against their\nplan would remain in all its plausibility; and the real inconveniency\nwould be incurred of not removing a pretext which may be seized on\ncritical occasions for drawing into question the essential powers of the\nUnion.\n\nIf it be asked what is to be the consequence, in case the Congress\nshall misconstrue this part of the Constitution, and exercise powers\nnot warranted by its true meaning, I answer, the same as if they should\nmisconstrue or enlarge any other power vested in them; as if the general\npower had been reduced to particulars, and any one of these were to\nbe violated; the same, in short, as if the State legislatures should\nviolate the irrespective constitutional authorities. In the first\ninstance, the success of the usurpation will depend on the executive\nand judiciary departments, which are to expound and give effect to the\nlegislative acts; and in the last resort a remedy must be obtained from\nthe people who can, by the election of more faithful representatives,\nannul the acts of the usurpers. The truth is, that this ultimate redress\nmay be more confided in against unconstitutional acts of the federal\nthan of the State legislatures, for this plain reason, that as every\nsuch act of the former will be an invasion of the rights of the latter,\nthese will be ever ready to mark the innovation, to sound the alarm to\nthe people, and to exert their local influence in effecting a change of\nfederal representatives. There being no such intermediate body between\nthe State legislatures and the people interested in watching the conduct\nof the former, violations of the State constitutions are more likely to\nremain unnoticed and unredressed.\n\n2. \"This Constitution and the laws of the United States which shall\nbe made in pursuance thereof, and all treaties made, or which shall be\nmade, under the authority of the United States, shall be the supreme law\nof the land, and the judges in every State shall be bound thereby,\nany thing in the constitution or laws of any State to the contrary\nnotwithstanding.\"\n\nThe indiscreet zeal of the adversaries to the Constitution has betrayed\nthem into an attack on this part of it also, without which it would have\nbeen evidently and radically defective. To be fully sensible of this,\nwe need only suppose for a moment that the supremacy of the State\nconstitutions had been left complete by a saving clause in their favor.\n\nIn the first place, as these constitutions invest the State legislatures\nwith absolute sovereignty, in all cases not excepted by the existing\narticles of Confederation, all the authorities contained in the\nproposed Constitution, so far as they exceed those enumerated in the\nConfederation, would have been annulled, and the new Congress would have\nbeen reduced to the same impotent condition with their predecessors.\n\nIn the next place, as the constitutions of some of the States do\nnot even expressly and fully recognize the existing powers of the\nConfederacy, an express saving of the supremacy of the former would,\nin such States, have brought into question every power contained in the\nproposed Constitution.\n\nIn the third place, as the constitutions of the States differ much from\neach other, it might happen that a treaty or national law, of great and\nequal importance to the States, would interfere with some and not with\nother constitutions, and would consequently be valid in some of the\nStates, at the same time that it would have no effect in others.\n\nIn fine, the world would have seen, for the first time, a system of\ngovernment founded on an inversion of the fundamental principles of all\ngovernment; it would have seen the authority of the whole society every\nwhere subordinate to the authority of the parts; it would have seen a\nmonster, in which the head was under the direction of the members.\n\n3. \"The Senators and Representatives, and the members of the several\nState legislatures, and all executive and judicial officers, both of\nthe United States and the several States, shall be bound by oath or\naffirmation to support this Constitution.\"\n\nIt has been asked why it was thought necessary, that the State\nmagistracy should be bound to support the federal Constitution, and\nunnecessary that a like oath should be imposed on the officers of the\nUnited States, in favor of the State constitutions.\n\nSeveral reasons might be assigned for the distinction. I content myself\nwith one, which is obvious and conclusive. The members of the federal\ngovernment will have no agency in carrying the State constitutions\ninto effect. The members and officers of the State governments, on the\ncontrary, will have an essential agency in giving effect to the federal\nConstitution. The election of the President and Senate will depend, in\nall cases, on the legislatures of the several States. And the election\nof the House of Representatives will equally depend on the same\nauthority in the first instance; and will, probably, forever be\nconducted by the officers, and according to the laws, of the States.\n\n4. Among the provisions for giving efficacy to the federal powers might\nbe added those which belong to the executive and judiciary departments:\nbut as these are reserved for particular examination in another place, I\npass them over in this.\n\nWe have now reviewed, in detail, all the articles composing the sum or\nquantity of power delegated by the proposed Constitution to the federal\ngovernment, and are brought to this undeniable conclusion, that no part\nof the power is unnecessary or improper for accomplishing the necessary\nobjects of the Union. The question, therefore, whether this amount of\npower shall be granted or not, resolves itself into another question,\nwhether or not a government commensurate to the exigencies of the Union\nshall be established; or, in other words, whether the Union itself shall\nbe preserved.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 45\n\nThe Alleged Danger From the Powers of the Union to the State Governments.\n\nConsidered For the Independent Journal. Saturday, January 26, 1788\n\nMADISON\n\nTo the People of the State of New York:\n\nHAVING shown that no one of the powers transferred to the federal\ngovernment is unnecessary or improper, the next question to be\nconsidered is, whether the whole mass of them will be dangerous to the\nportion of authority left in the several States.\n\nThe adversaries to the plan of the convention, instead of considering\nin the first place what degree of power was absolutely necessary for\nthe purposes of the federal government, have exhausted themselves in a\nsecondary inquiry into the possible consequences of the proposed degree\nof power to the governments of the particular States. But if the Union,\nas has been shown, be essential to the security of the people of America\nagainst foreign danger; if it be essential to their security against\ncontentions and wars among the different States; if it be essential to\nguard them against those violent and oppressive factions which embitter\nthe blessings of liberty, and against those military establishments\nwhich must gradually poison its very fountain; if, in a word, the\nUnion be essential to the happiness of the people of America, is it not\npreposterous, to urge as an objection to a government, without which\nthe objects of the Union cannot be attained, that such a government\nmay derogate from the importance of the governments of the individual\nStates? Was, then, the American Revolution effected, was the American\nConfederacy formed, was the precious blood of thousands spilt, and\nthe hard-earned substance of millions lavished, not that the people of\nAmerica should enjoy peace, liberty, and safety, but that the government\nof the individual States, that particular municipal establishments,\nmight enjoy a certain extent of power, and be arrayed with certain\ndignities and attributes of sovereignty? We have heard of the impious\ndoctrine in the Old World, that the people were made for kings, not\nkings for the people. Is the same doctrine to be revived in the New, in\nanother shape that the solid happiness of the people is to be sacrificed\nto the views of political institutions of a different form? It is too\nearly for politicians to presume on our forgetting that the public good,\nthe real welfare of the great body of the people, is the supreme object\nto be pursued; and that no form of government whatever has any other\nvalue than as it may be fitted for the attainment of this object. Were\nthe plan of the convention adverse to the public happiness, my voice\nwould be, Reject the plan. Were the Union itself inconsistent with the\npublic happiness, it would be, Abolish the Union. In like manner, as far\nas the sovereignty of the States cannot be reconciled to the happiness\nof the people, the voice of every good citizen must be, Let the former\nbe sacrificed to the latter. How far the sacrifice is necessary, has\nbeen shown. How far the unsacrificed residue will be endangered, is the\nquestion before us.\n\nSeveral important considerations have been touched in the course of\nthese papers, which discountenance the supposition that the operation\nof the federal government will by degrees prove fatal to the State\ngovernments. The more I revolve the subject, the more fully I am\npersuaded that the balance is much more likely to be disturbed by the\npreponderancy of the last than of the first scale.\n\nWe have seen, in all the examples of ancient and modern confederacies,\nthe strongest tendency continually betraying itself in the members,\nto despoil the general government of its authorities, with a very\nineffectual capacity in the latter to defend itself against the\nencroachments. Although, in most of these examples, the system has been\nso dissimilar from that under consideration as greatly to weaken any\ninference concerning the latter from the fate of the former, yet, as the\nStates will retain, under the proposed Constitution, a very extensive\nportion of active sovereignty, the inference ought not to be wholly\ndisregarded. In the Achaean league it is probable that the federal head\nhad a degree and species of power, which gave it a considerable likeness\nto the government framed by the convention. The Lycian Confederacy, as\nfar as its principles and form are transmitted, must have borne a still\ngreater analogy to it. Yet history does not inform us that either of\nthem ever degenerated, or tended to degenerate, into one consolidated\ngovernment. On the contrary, we know that the ruin of one of them\nproceeded from the incapacity of the federal authority to prevent the\ndissensions, and finally the disunion, of the subordinate authorities.\nThese cases are the more worthy of our attention, as the external\ncauses by which the component parts were pressed together were much more\nnumerous and powerful than in our case; and consequently less powerful\nligaments within would be sufficient to bind the members to the head,\nand to each other.\n\nIn the feudal system, we have seen a similar propensity exemplified.\nNotwithstanding the want of proper sympathy in every instance between\nthe local sovereigns and the people, and the sympathy in some instances\nbetween the general sovereign and the latter, it usually happened that\nthe local sovereigns prevailed in the rivalship for encroachments. Had\nno external dangers enforced internal harmony and subordination, and\nparticularly, had the local sovereigns possessed the affections of the\npeople, the great kingdoms in Europe would at this time consist of as\nmany independent princes as there were formerly feudatory barons.\n\nThe State governments will have the advantage of the Federal government,\nwhether we compare them in respect to the immediate dependence of the\none on the other; to the weight of personal influence which each\nside will possess; to the powers respectively vested in them; to the\npredilection and probable support of the people; to the disposition and\nfaculty of resisting and frustrating the measures of each other.\n\nThe State governments may be regarded as constituent and essential parts\nof the federal government; whilst the latter is nowise essential to the\noperation or organization of the former. Without the intervention of the\nState legislatures, the President of the United States cannot be elected\nat all. They must in all cases have a great share in his appointment,\nand will, perhaps, in most cases, of themselves determine it. The Senate\nwill be elected absolutely and exclusively by the State legislatures.\nEven the House of Representatives, though drawn immediately from the\npeople, will be chosen very much under the influence of that class of\nmen, whose influence over the people obtains for themselves an election\ninto the State legislatures. Thus, each of the principal branches of the\nfederal government will owe its existence more or less to the favor of\nthe State governments, and must consequently feel a dependence, which\nis much more likely to beget a disposition too obsequious than too\noverbearing towards them. On the other side, the component parts of the\nState governments will in no instance be indebted for their appointment\nto the direct agency of the federal government, and very little, if at\nall, to the local influence of its members.\n\nThe number of individuals employed under the Constitution of the\nUnited States will be much smaller than the number employed under the\nparticular States. There will consequently be less of personal influence\non the side of the former than of the latter. The members of the\nlegislative, executive, and judiciary departments of thirteen and more\nStates, the justices of peace, officers of militia, ministerial officers\nof justice, with all the county, corporation, and town officers, for\nthree millions and more of people, intermixed, and having particular\nacquaintance with every class and circle of people, must exceed, beyond\nall proportion, both in number and influence, those of every description\nwho will be employed in the administration of the federal system.\nCompare the members of the three great departments of the thirteen\nStates, excluding from the judiciary department the justices of\npeace, with the members of the corresponding departments of the single\ngovernment of the Union; compare the militia officers of three millions\nof people with the military and marine officers of any establishment\nwhich is within the compass of probability, or, I may add, of\npossibility, and in this view alone, we may pronounce the advantage\nof the States to be decisive. If the federal government is to have\ncollectors of revenue, the State governments will have theirs also. And\nas those of the former will be principally on the seacoast, and not very\nnumerous, whilst those of the latter will be spread over the face of the\ncountry, and will be very numerous, the advantage in this view also lies\non the same side. It is true, that the Confederacy is to possess, and\nmay exercise, the power of collecting internal as well as external taxes\nthroughout the States; but it is probable that this power will not be\nresorted to, except for supplemental purposes of revenue; that an option\nwill then be given to the States to supply their quotas by previous\ncollections of their own; and that the eventual collection, under\nthe immediate authority of the Union, will generally be made by the\nofficers, and according to the rules, appointed by the several States.\nIndeed it is extremely probable, that in other instances, particularly\nin the organization of the judicial power, the officers of the States\nwill be clothed with the correspondent authority of the Union. Should it\nhappen, however, that separate collectors of internal revenue should\nbe appointed under the federal government, the influence of the whole\nnumber would not bear a comparison with that of the multitude of State\nofficers in the opposite scale. Within every district to which a federal\ncollector would be allotted, there would not be less than thirty or\nforty, or even more, officers of different descriptions, and many of\nthem persons of character and weight, whose influence would lie on the\nside of the State.\n\nThe powers delegated by the proposed Constitution to the federal\ngovernment, are few and defined. Those which are to remain in the State\ngovernments are numerous and indefinite. The former will be exercised\nprincipally on external objects, as war, peace, negotiation, and foreign\ncommerce; with which last the power of taxation will, for the most part,\nbe connected. The powers reserved to the several States will extend to\nall the objects which, in the ordinary course of affairs, concern the\nlives, liberties, and properties of the people, and the internal order,\nimprovement, and prosperity of the State.\n\nThe operations of the federal government will be most extensive and\nimportant in times of war and danger; those of the State governments, in\ntimes of peace and security. As the former periods will probably bear\na small proportion to the latter, the State governments will here\nenjoy another advantage over the federal government. The more adequate,\nindeed, the federal powers may be rendered to the national defense, the\nless frequent will be those scenes of danger which might favor their\nascendancy over the governments of the particular States.\n\nIf the new Constitution be examined with accuracy and candor, it will\nbe found that the change which it proposes consists much less in the\naddition of NEW POWERS to the Union, than in the invigoration of its\nORIGINAL POWERS. The regulation of commerce, it is true, is a new power;\nbut that seems to be an addition which few oppose, and from which no\napprehensions are entertained. The powers relating to war and\npeace, armies and fleets, treaties and finance, with the other more\nconsiderable powers, are all vested in the existing Congress by the\narticles of Confederation. The proposed change does not enlarge these\npowers; it only substitutes a more effectual mode of administering them.\nThe change relating to taxation may be regarded as the most important;\nand yet the present Congress have as complete authority to REQUIRE\nof the States indefinite supplies of money for the common defense and\ngeneral welfare, as the future Congress will have to require them of\nindividual citizens; and the latter will be no more bound than the\nStates themselves have been, to pay the quotas respectively taxed\non them. Had the States complied punctually with the articles of\nConfederation, or could their compliance have been enforced by as\npeaceable means as may be used with success towards single persons,\nour past experience is very far from countenancing an opinion, that the\nState governments would have lost their constitutional powers, and have\ngradually undergone an entire consolidation. To maintain that such an\nevent would have ensued, would be to say at once, that the existence\nof the State governments is incompatible with any system whatever that\naccomplishes the essential purposes of the Union.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 46\n\nThe Influence of the State and Federal Governments Compared\n\nFrom the New York Packet. Tuesday, January 29, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nRESUMING the subject of the last paper, I proceed to inquire whether the\nfederal government or the State governments will have the advantage with\nregard to the predilection and support of the people. Notwithstanding\nthe different modes in which they are appointed, we must consider both\nof them as substantially dependent on the great body of the citizens of\nthe United States. I assume this position here as it respects the\nfirst, reserving the proofs for another place. The federal and State\ngovernments are in fact but different agents and trustees of the people,\nconstituted with different powers, and designed for different purposes.\nThe adversaries of the Constitution seem to have lost sight of the\npeople altogether in their reasonings on this subject; and to have\nviewed these different establishments, not only as mutual rivals and\nenemies, but as uncontrolled by any common superior in their efforts\nto usurp the authorities of each other. These gentlemen must here be\nreminded of their error. They must be told that the ultimate authority,\nwherever the derivative may be found, resides in the people alone, and\nthat it will not depend merely on the comparative ambition or address\nof the different governments, whether either, or which of them, will be\nable to enlarge its sphere of jurisdiction at the expense of the other.\nTruth, no less than decency, requires that the event in every case\nshould be supposed to depend on the sentiments and sanction of their\ncommon constituents.\n\nMany considerations, besides those suggested on a former occasion, seem\nto place it beyond doubt that the first and most natural attachment of\nthe people will be to the governments of their respective States. Into\nthe administration of these a greater number of individuals will\nexpect to rise. From the gift of these a greater number of offices and\nemoluments will flow. By the superintending care of these, all the more\ndomestic and personal interests of the people will be regulated and\nprovided for. With the affairs of these, the people will be more\nfamiliarly and minutely conversant. And with the members of these,\nwill a greater proportion of the people have the ties of personal\nacquaintance and friendship, and of family and party attachments; on\nthe side of these, therefore, the popular bias may well be expected most\nstrongly to incline.\n\nExperience speaks the same language in this case. The federal\nadministration, though hitherto very defective in comparison with\nwhat may be hoped under a better system, had, during the war, and\nparticularly whilst the independent fund of paper emissions was in\ncredit, an activity and importance as great as it can well have in\nany future circumstances whatever. It was engaged, too, in a course of\nmeasures which had for their object the protection of everything that\nwas dear, and the acquisition of everything that could be desirable to\nthe people at large. It was, nevertheless, invariably found, after\nthe transient enthusiasm for the early Congresses was over, that the\nattention and attachment of the people were turned anew to their own\nparticular governments; that the federal council was at no time the idol\nof popular favor; and that opposition to proposed enlargements of its\npowers and importance was the side usually taken by the men who wished\nto build their political consequence on the prepossessions of their\nfellow-citizens.\n\nIf, therefore, as has been elsewhere remarked, the people should in\nfuture become more partial to the federal than to the State governments,\nthe change can only result from such manifest and irresistible proofs\nof a better administration, as will overcome all their antecedent\npropensities. And in that case, the people ought not surely to be\nprecluded from giving most of their confidence where they may discover\nit to be most due; but even in that case the State governments could\nhave little to apprehend, because it is only within a certain sphere\nthat the federal power can, in the nature of things, be advantageously\nadministered.\n\nThe remaining points on which I propose to compare the federal and State\ngovernments, are the disposition and the faculty they may respectively\npossess, to resist and frustrate the measures of each other.\n\nIt has been already proved that the members of the federal will be more\ndependent on the members of the State governments, than the latter will\nbe on the former. It has appeared also, that the prepossessions of the\npeople, on whom both will depend, will be more on the side of the State\ngovernments, than of the federal government. So far as the disposition\nof each towards the other may be influenced by these causes, the State\ngovernments must clearly have the advantage. But in a distinct and very\nimportant point of view, the advantage will lie on the same side. The\nprepossessions, which the members themselves will carry into the federal\ngovernment, will generally be favorable to the States; whilst it will\nrarely happen, that the members of the State governments will carry into\nthe public councils a bias in favor of the general government. A local\nspirit will infallibly prevail much more in the members of Congress,\nthan a national spirit will prevail in the legislatures of the\nparticular States. Every one knows that a great proportion of the errors\ncommitted by the State legislatures proceeds from the disposition of\nthe members to sacrifice the comprehensive and permanent interest of the\nState, to the particular and separate views of the counties or districts\nin which they reside. And if they do not sufficiently enlarge their\npolicy to embrace the collective welfare of their particular State, how\ncan it be imagined that they will make the aggregate prosperity of the\nUnion, and the dignity and respectability of its government, the objects\nof their affections and consultations? For the same reason that the\nmembers of the State legislatures will be unlikely to attach themselves\nsufficiently to national objects, the members of the federal legislature\nwill be likely to attach themselves too much to local objects. The\nStates will be to the latter what counties and towns are to the former.\nMeasures will too often be decided according to their probable effect,\nnot on the national prosperity and happiness, but on the prejudices,\ninterests, and pursuits of the governments and people of the individual\nStates. What is the spirit that has in general characterized the\nproceedings of Congress? A perusal of their journals, as well as the\ncandid acknowledgments of such as have had a seat in that assembly,\nwill inform us, that the members have but too frequently displayed\nthe character, rather of partisans of their respective States, than of\nimpartial guardians of a common interest; that where on one occasion\nimproper sacrifices have been made of local considerations, to the\naggrandizement of the federal government, the great interests of the\nnation have suffered on a hundred, from an undue attention to the local\nprejudices, interests, and views of the particular States. I mean not by\nthese reflections to insinuate, that the new federal government will not\nembrace a more enlarged plan of policy than the existing government may\nhave pursued; much less, that its views will be as confined as those of\nthe State legislatures; but only that it will partake sufficiently\nof the spirit of both, to be disinclined to invade the rights of the\nindividual States, or the prerogatives of their governments. The motives\non the part of the State governments, to augment their prerogatives\nby defalcations from the federal government, will be overruled by no\nreciprocal predispositions in the members.\n\nWere it admitted, however, that the Federal government may feel an equal\ndisposition with the State governments to extend its power beyond the\ndue limits, the latter would still have the advantage in the means of\ndefeating such encroachments. If an act of a particular State, though\nunfriendly to the national government, be generally popular in that\nState and should not too grossly violate the oaths of the State\nofficers, it is executed immediately and, of course, by means on the\nspot and depending on the State alone. The opposition of the federal\ngovernment, or the interposition of federal officers, would but inflame\nthe zeal of all parties on the side of the State, and the evil could\nnot be prevented or repaired, if at all, without the employment of means\nwhich must always be resorted to with reluctance and difficulty. On the\nother hand, should an unwarrantable measure of the federal government be\nunpopular in particular States, which would seldom fail to be the case,\nor even a warrantable measure be so, which may sometimes be the case,\nthe means of opposition to it are powerful and at hand. The disquietude\nof the people; their repugnance and, perhaps, refusal to co-operate with\nthe officers of the Union; the frowns of the executive magistracy of the\nState; the embarrassments created by legislative devices, which\nwould often be added on such occasions, would oppose, in any State,\ndifficulties not to be despised; would form, in a large State, very\nserious impediments; and where the sentiments of several adjoining\nStates happened to be in unison, would present obstructions which the\nfederal government would hardly be willing to encounter.\n\nBut ambitious encroachments of the federal government, on the authority\nof the State governments, would not excite the opposition of a single\nState, or of a few States only. They would be signals of general alarm.\nEvery government would espouse the common cause. A correspondence would\nbe opened. Plans of resistance would be concerted. One spirit would\nanimate and conduct the whole. The same combinations, in short, would\nresult from an apprehension of the federal, as was produced by the\ndread of a foreign, yoke; and unless the projected innovations should be\nvoluntarily renounced, the same appeal to a trial of force would be made\nin the one case as was made in the other. But what degree of madness\ncould ever drive the federal government to such an extremity. In the\ncontest with Great Britain, one part of the empire was employed against\nthe other. The more numerous part invaded the rights of the less\nnumerous part. The attempt was unjust and unwise; but it was not in\nspeculation absolutely chimerical. But what would be the contest in the\ncase we are supposing? Who would be the parties? A few representatives\nof the people would be opposed to the people themselves; or rather one\nset of representatives would be contending against thirteen sets of\nrepresentatives, with the whole body of their common constituents on the\nside of the latter.\n\nThe only refuge left for those who prophesy the downfall of the State\ngovernments is the visionary supposition that the federal government may\npreviously accumulate a military force for the projects of ambition. The\nreasonings contained in these papers must have been employed to little\npurpose indeed, if it could be necessary now to disprove the reality\nof this danger. That the people and the States should, for a sufficient\nperiod of time, elect an uninterrupted succession of men ready to betray\nboth; that the traitors should, throughout this period, uniformly and\nsystematically pursue some fixed plan for the extension of the military\nestablishment; that the governments and the people of the States should\nsilently and patiently behold the gathering storm, and continue to\nsupply the materials, until it should be prepared to burst on their own\nheads, must appear to every one more like the incoherent dreams of a\ndelirious jealousy, or the misjudged exaggerations of a counterfeit\nzeal, than like the sober apprehensions of genuine patriotism.\nExtravagant as the supposition is, let it however be made. Let a regular\narmy, fully equal to the resources of the country, be formed; and let\nit be entirely at the devotion of the federal government; still it would\nnot be going too far to say, that the State governments, with the people\non their side, would be able to repel the danger. The highest number to\nwhich, according to the best computation, a standing army can be carried\nin any country, does not exceed one hundredth part of the whole number\nof souls; or one twenty-fifth part of the number able to bear arms. This\nproportion would not yield, in the United States, an army of more than\ntwenty-five or thirty thousand men. To these would be opposed a militia\namounting to near half a million of citizens with arms in their hands,\nofficered by men chosen from among themselves, fighting for their common\nliberties, and united and conducted by governments possessing their\naffections and confidence. It may well be doubted, whether a militia\nthus circumstanced could ever be conquered by such a proportion of\nregular troops. Those who are best acquainted with the last successful\nresistance of this country against the British arms, will be most\ninclined to deny the possibility of it. Besides the advantage of being\narmed, which the Americans possess over the people of almost every other\nnation, the existence of subordinate governments, to which the people\nare attached, and by which the militia officers are appointed, forms a\nbarrier against the enterprises of ambition, more insurmountable than\nany which a simple government of any form can admit of. Notwithstanding\nthe military establishments in the several kingdoms of Europe, which are\ncarried as far as the public resources will bear, the governments are\nafraid to trust the people with arms. And it is not certain, that with\nthis aid alone they would not be able to shake off their yokes. But were\nthe people to possess the additional advantages of local governments\nchosen by themselves, who could collect the national will and direct the\nnational force, and of officers appointed out of the militia, by these\ngovernments, and attached both to them and to the militia, it may be\naffirmed with the greatest assurance, that the throne of every tyranny\nin Europe would be speedily overturned in spite of the legions which\nsurround it. Let us not insult the free and gallant citizens of America\nwith the suspicion, that they would be less able to defend the rights of\nwhich they would be in actual possession, than the debased subjects\nof arbitrary power would be to rescue theirs from the hands of their\noppressors. Let us rather no longer insult them with the supposition\nthat they can ever reduce themselves to the necessity of making\nthe experiment, by a blind and tame submission to the long train of\ninsidious measures which must precede and produce it.\n\nThe argument under the present head may be put into a very concise\nform, which appears altogether conclusive. Either the mode in which\nthe federal government is to be constructed will render it sufficiently\ndependent on the people, or it will not. On the first supposition, it\nwill be restrained by that dependence from forming schemes obnoxious to\ntheir constituents. On the other supposition, it will not possess the\nconfidence of the people, and its schemes of usurpation will be easily\ndefeated by the State governments, who will be supported by the people.\n\nOn summing up the considerations stated in this and the last paper, they\nseem to amount to the most convincing evidence, that the powers proposed\nto be lodged in the federal government are as little formidable to those\nreserved to the individual States, as they are indispensably necessary\nto accomplish the purposes of the Union; and that all those alarms which\nhave been sounded, of a meditated and consequential annihilation of\nthe State governments, must, on the most favorable interpretation, be\nascribed to the chimerical fears of the authors of them.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 47\n\nThe Particular Structure of the New Government and the Distribution of\nPower Among Its Different Parts.\n\nFor the Independent Journal. Wednesday, January 30, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nHAVING reviewed the general form of the proposed government and\nthe general mass of power allotted to it, I proceed to examine the\nparticular structure of this government, and the distribution of this\nmass of power among its constituent parts.\n\nOne of the principal objections inculcated by the more respectable\nadversaries to the Constitution, is its supposed violation of the\npolitical maxim, that the legislative, executive, and judiciary\ndepartments ought to be separate and distinct. In the structure of the\nfederal government, no regard, it is said, seems to have been paid to\nthis essential precaution in favor of liberty. The several departments\nof power are distributed and blended in such a manner as at once to\ndestroy all symmetry and beauty of form, and to expose some of the\nessential parts of the edifice to the danger of being crushed by the\ndisproportionate weight of other parts.\n\nNo political truth is certainly of greater intrinsic value, or is\nstamped with the authority of more enlightened patrons of liberty, than\nthat on which the objection is founded. The accumulation of all powers,\nlegislative, executive, and judiciary, in the same hands, whether of\none, a few, or many, and whether hereditary, self-appointed, or elective,\nmay justly be pronounced the very definition of tyranny. Were the\nfederal Constitution, therefore, really chargeable with the accumulation\nof power, or with a mixture of powers, having a dangerous tendency to\nsuch an accumulation, no further arguments would be necessary to inspire\na universal reprobation of the system. I persuade myself, however,\nthat it will be made apparent to every one, that the charge cannot\nbe supported, and that the maxim on which it relies has been totally\nmisconceived and misapplied. In order to form correct ideas on this\nimportant subject, it will be proper to investigate the sense in which\nthe preservation of liberty requires that the three great departments of\npower should be separate and distinct.\n\nThe oracle who is always consulted and cited on this subject is the\ncelebrated Montesquieu. If he be not the author of this invaluable\nprecept in the science of politics, he has the merit at least of\ndisplaying and recommending it most effectually to the attention of\nmankind. Let us endeavor, in the first place, to ascertain his meaning\non this point.\n\nThe British Constitution was to Montesquieu what Homer has been to the\ndidactic writers on epic poetry. As the latter have considered the work\nof the immortal bard as the perfect model from which the principles and\nrules of the epic art were to be drawn, and by which all similar works\nwere to be judged, so this great political critic appears to have\nviewed the Constitution of England as the standard, or to use his own\nexpression, as the mirror of political liberty; and to have delivered,\nin the form of elementary truths, the several characteristic principles\nof that particular system. That we may be sure, then, not to mistake his\nmeaning in this case, let us recur to the source from which the maxim\nwas drawn.\n\nOn the slightest view of the British Constitution, we must perceive that\nthe legislative, executive, and judiciary departments are by no means\ntotally separate and distinct from each other. The executive magistrate\nforms an integral part of the legislative authority. He alone has the\nprerogative of making treaties with foreign sovereigns, which, when\nmade, have, under certain limitations, the force of legislative acts.\nAll the members of the judiciary department are appointed by him, can be\nremoved by him on the address of the two Houses of Parliament, and form,\nwhen he pleases to consult them, one of his constitutional councils. One\nbranch of the legislative department forms also a great constitutional\ncouncil to the executive chief, as, on another hand, it is the sole\ndepositary of judicial power in cases of impeachment, and is invested\nwith the supreme appellate jurisdiction in all other cases. The judges,\nagain, are so far connected with the legislative department as often to\nattend and participate in its deliberations, though not admitted to a\nlegislative vote.\n\nFrom these facts, by which Montesquieu was guided, it may clearly be\ninferred that, in saying \"There can be no liberty where the legislative\nand executive powers are united in the same person, or body of\nmagistrates,\" or, \"if the power of judging be not separated from\nthe legislative and executive powers,\" he did not mean that these\ndepartments ought to have no PARTIAL AGENCY in, or no CONTROL over, the\nacts of each other. His meaning, as his own words import, and still more\nconclusively as illustrated by the example in his eye, can amount to\nno more than this, that where the WHOLE power of one department is\nexercised by the same hands which possess the WHOLE power of another\ndepartment, the fundamental principles of a free constitution are\nsubverted. This would have been the case in the constitution examined\nby him, if the king, who is the sole executive magistrate, had possessed\nalso the complete legislative power, or the supreme administration of\njustice; or if the entire legislative body had possessed the supreme\njudiciary, or the supreme executive authority. This, however, is not\namong the vices of that constitution. The magistrate in whom the whole\nexecutive power resides cannot of himself make a law, though he can put\na negative on every law; nor administer justice in person, though he has\nthe appointment of those who do administer it. The judges can exercise\nno executive prerogative, though they are shoots from the executive\nstock; nor any legislative function, though they may be advised with\nby the legislative councils. The entire legislature can perform no\njudiciary act, though by the joint act of two of its branches the judges\nmay be removed from their offices, and though one of its branches\nis possessed of the judicial power in the last resort. The entire\nlegislature, again, can exercise no executive prerogative, though one of\nits branches constitutes the supreme executive magistracy, and another,\non the impeachment of a third, can try and condemn all the subordinate\nofficers in the executive department.\n\nThe reasons on which Montesquieu grounds his maxim are a further\ndemonstration of his meaning. \"When the legislative and executive\npowers are united in the same person or body,\" says he, \"there can be no\nliberty, because apprehensions may arise lest THE SAME monarch or senate\nshould ENACT tyrannical laws to EXECUTE them in a tyrannical manner.\"\nAgain: \"Were the power of judging joined with the legislative, the life\nand liberty of the subject would be exposed to arbitrary control, for\nTHE JUDGE would then be THE LEGISLATOR. Were it joined to the executive\npower, THE JUDGE might behave with all the violence of AN OPPRESSOR.\"\nSome of these reasons are more fully explained in other passages; but\nbriefly stated as they are here, they sufficiently establish the meaning\nwhich we have put on this celebrated maxim of this celebrated author.\n\nIf we look into the constitutions of the several States, we find that,\nnotwithstanding the emphatical and, in some instances, the unqualified\nterms in which this axiom has been laid down, there is not a single\ninstance in which the several departments of power have been kept\nabsolutely separate and distinct. New Hampshire, whose constitution was\nthe last formed, seems to have been fully aware of the impossibility and\ninexpediency of avoiding any mixture whatever of these departments,\nand has qualified the doctrine by declaring \"that the legislative,\nexecutive, and judiciary powers ought to be kept as separate from,\nand independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL\nADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE\nWHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND\nAMITY.\" Her constitution accordingly mixes these departments in several\nrespects. The Senate, which is a branch of the legislative department,\nis also a judicial tribunal for the trial of impeachments. The\nPresident, who is the head of the executive department, is the presiding\nmember also of the Senate; and, besides an equal vote in all cases,\nhas a casting vote in case of a tie. The executive head is himself\neventually elective every year by the legislative department, and\nhis council is every year chosen by and from the members of the same\ndepartment. Several of the officers of state are also appointed by the\nlegislature. And the members of the judiciary department are appointed\nby the executive department.\n\nThe constitution of Massachusetts has observed a sufficient though less\npointed caution, in expressing this fundamental article of liberty.\nIt declares \"that the legislative department shall never exercise the\nexecutive and judicial powers, or either of them; the executive shall\nnever exercise the legislative and judicial powers, or either of them;\nthe judicial shall never exercise the legislative and executive powers,\nor either of them.\" This declaration corresponds precisely with the\ndoctrine of Montesquieu, as it has been explained, and is not in a\nsingle point violated by the plan of the convention. It goes no farther\nthan to prohibit any one of the entire departments from exercising the\npowers of another department. In the very Constitution to which it is\nprefixed, a partial mixture of powers has been admitted. The executive\nmagistrate has a qualified negative on the legislative body, and the\nSenate, which is a part of the legislature, is a court of impeachment\nfor members both of the executive and judiciary departments. The members\nof the judiciary department, again, are appointable by the executive\ndepartment, and removable by the same authority on the address of the\ntwo legislative branches. Lastly, a number of the officers of government\nare annually appointed by the legislative department. As the appointment\nto offices, particularly executive offices, is in its nature an\nexecutive function, the compilers of the Constitution have, in this last\npoint at least, violated the rule established by themselves.\n\nI pass over the constitutions of Rhode Island and Connecticut, because\nthey were formed prior to the Revolution, and even before the principle\nunder examination had become an object of political attention.\n\nThe constitution of New York contains no declaration on this subject;\nbut appears very clearly to have been framed with an eye to the\ndanger of improperly blending the different departments. It gives,\nnevertheless, to the executive magistrate, a partial control over the\nlegislative department; and, what is more, gives a like control to\nthe judiciary department; and even blends the executive and judiciary\ndepartments in the exercise of this control. In its council of\nappointment members of the legislative are associated with the executive\nauthority, in the appointment of officers, both executive and judiciary.\nAnd its court for the trial of impeachments and correction of errors is\nto consist of one branch of the legislature and the principal members of\nthe judiciary department.\n\nThe constitution of New Jersey has blended the different powers of\ngovernment more than any of the preceding. The governor, who is the\nexecutive magistrate, is appointed by the legislature; is chancellor and\nordinary, or surrogate of the State; is a member of the Supreme Court of\nAppeals, and president, with a casting vote, of one of the legislative\nbranches. The same legislative branch acts again as executive council of\nthe governor, and with him constitutes the Court of Appeals. The members\nof the judiciary department are appointed by the legislative department\nand removable by one branch of it, on the impeachment of the other.\n\nAccording to the constitution of Pennsylvania, the president, who is the\nhead of the executive department, is annually elected by a vote in\nwhich the legislative department predominates. In conjunction with an\nexecutive council, he appoints the members of the judiciary department,\nand forms a court of impeachment for trial of all officers, judiciary as\nwell as executive. The judges of the Supreme Court and justices of the\npeace seem also to be removable by the legislature; and the executive\npower of pardoning in certain cases, to be referred to the same\ndepartment. The members of the executive council are made EX-OFFICIO\njustices of peace throughout the State.\n\nIn Delaware, the chief executive magistrate is annually elected by the\nlegislative department. The speakers of the two legislative branches are\nvice-presidents in the executive department. The executive chief,\nwith six others, appointed, three by each of the legislative branches\nconstitutes the Supreme Court of Appeals; he is joined with the\nlegislative department in the appointment of the other judges.\nThroughout the States, it appears that the members of the legislature\nmay at the same time be justices of the peace; in this State, the\nmembers of one branch of it are EX-OFFICIO justices of the peace; as are\nalso the members of the executive council. The principal officers of the\nexecutive department are appointed by the legislative; and one branch of\nthe latter forms a court of impeachments. All officers may be removed on\naddress of the legislature.\n\nMaryland has adopted the maxim in the most unqualified terms; declaring\nthat the legislative, executive, and judicial powers of government ought\nto be forever separate and distinct from each other. Her constitution,\nnotwithstanding, makes the executive magistrate appointable by the\nlegislative department; and the members of the judiciary by the\nexecutive department.\n\nThe language of Virginia is still more pointed on this subject. Her\nconstitution declares, \"that the legislative, executive, and judiciary\ndepartments shall be separate and distinct; so that neither exercise the\npowers properly belonging to the other; nor shall any person exercise\nthe powers of more than one of them at the same time, except that\nthe justices of county courts shall be eligible to either House of\nAssembly.\" Yet we find not only this express exception, with respect to\nthe members of the inferior courts, but that the chief magistrate, with\nhis executive council, are appointable by the legislature; that two\nmembers of the latter are triennially displaced at the pleasure of the\nlegislature; and that all the principal offices, both executive and\njudiciary, are filled by the same department. The executive prerogative\nof pardon, also, is in one case vested in the legislative department.\n\nThe constitution of North Carolina, which declares \"that the\nlegislative, executive, and supreme judicial powers of government ought\nto be forever separate and distinct from each other,\" refers, at the\nsame time, to the legislative department, the appointment not only of\nthe executive chief, but all the principal officers within both that and\nthe judiciary department.\n\nIn South Carolina, the constitution makes the executive magistracy\neligible by the legislative department. It gives to the latter, also,\nthe appointment of the members of the judiciary department, including\neven justices of the peace and sheriffs; and the appointment of officers\nin the executive department, down to captains in the army and navy of\nthe State.\n\nIn the constitution of Georgia, where it is declared \"that the\nlegislative, executive, and judiciary departments shall be separate and\ndistinct, so that neither exercise the powers properly belonging to\nthe other,\" we find that the executive department is to be filled by\nappointments of the legislature; and the executive prerogative of pardon\nto be finally exercised by the same authority. Even justices of the\npeace are to be appointed by the legislature.\n\nIn citing these cases, in which the legislative, executive, and\njudiciary departments have not been kept totally separate and\ndistinct, I wish not to be regarded as an advocate for the particular\norganizations of the several State governments. I am fully aware that\namong the many excellent principles which they exemplify, they carry\nstrong marks of the haste, and still stronger of the inexperience, under\nwhich they were framed. It is but too obvious that in some instances the\nfundamental principle under consideration has been violated by too great\na mixture, and even an actual consolidation, of the different powers;\nand that in no instance has a competent provision been made for\nmaintaining in practice the separation delineated on paper. What I\nhave wished to evince is, that the charge brought against the proposed\nConstitution, of violating the sacred maxim of free government, is\nwarranted neither by the real meaning annexed to that maxim by its\nauthor, nor by the sense in which it has hitherto been understood in\nAmerica. This interesting subject will be resumed in the ensuing paper.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 48\n\nThese Departments Should Not Be So Far Separated as to Have No\nConstitutional Control Over Each Other.\n\nFrom the New York Packet. Friday, February 1, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nIT WAS shown in the last paper that the political apothegm there\nexamined does not require that the legislative, executive, and judiciary\ndepartments should be wholly unconnected with each other. I shall\nundertake, in the next place, to show that unless these departments be\nso far connected and blended as to give to each a constitutional control\nover the others, the degree of separation which the maxim requires,\nas essential to a free government, can never in practice be duly\nmaintained.\n\nIt is agreed on all sides, that the powers properly belonging to one of\nthe departments ought not to be directly and completely administered\nby either of the other departments. It is equally evident, that none of\nthem ought to possess, directly or indirectly, an overruling influence\nover the others, in the administration of their respective powers. It\nwill not be denied, that power is of an encroaching nature, and that it\nought to be effectually restrained from passing the limits assigned to\nit. After discriminating, therefore, in theory, the several classes\nof power, as they may in their nature be legislative, executive, or\njudiciary, the next and most difficult task is to provide some practical\nsecurity for each, against the invasion of the others. What this\nsecurity ought to be, is the great problem to be solved.\n\nWill it be sufficient to mark, with precision, the boundaries of these\ndepartments, in the constitution of the government, and to trust to\nthese parchment barriers against the encroaching spirit of power? This\nis the security which appears to have been principally relied on by the\ncompilers of most of the American constitutions. But experience assures\nus, that the efficacy of the provision has been greatly overrated; and\nthat some more adequate defense is indispensably necessary for the\nmore feeble, against the more powerful, members of the government.\nThe legislative department is everywhere extending the sphere of its\nactivity, and drawing all power into its impetuous vortex.\n\nThe founders of our republics have so much merit for the wisdom which\nthey have displayed, that no task can be less pleasing than that of\npointing out the errors into which they have fallen. A respect for\ntruth, however, obliges us to remark, that they seem never for a moment\nto have turned their eyes from the danger to liberty from the overgrown\nand all-grasping prerogative of an hereditary magistrate, supported and\nfortified by an hereditary branch of the legislative authority. They\nseem never to have recollected the danger from legislative usurpations,\nwhich, by assembling all power in the same hands, must lead to the same\ntyranny as is threatened by executive usurpations.\n\nIn a government where numerous and extensive prerogatives are placed\nin the hands of an hereditary monarch, the executive department is\nvery justly regarded as the source of danger, and watched with all the\njealousy which a zeal for liberty ought to inspire. In a democracy,\nwhere a multitude of people exercise in person the legislative\nfunctions, and are continually exposed, by their incapacity for regular\ndeliberation and concerted measures, to the ambitious intrigues of\ntheir executive magistrates, tyranny may well be apprehended, on\nsome favorable emergency, to start up in the same quarter. But in a\nrepresentative republic, where the executive magistracy is carefully\nlimited; both in the extent and the duration of its power; and where the\nlegislative power is exercised by an assembly, which is inspired, by a\nsupposed influence over the people, with an intrepid confidence in its\nown strength; which is sufficiently numerous to feel all the passions\nwhich actuate a multitude, yet not so numerous as to be incapable of\npursuing the objects of its passions, by means which reason prescribes;\nit is against the enterprising ambition of this department that the\npeople ought to indulge all their jealousy and exhaust all their\nprecautions.\n\nThe legislative department derives a superiority in our governments\nfrom other circumstances. Its constitutional powers being at once more\nextensive, and less susceptible of precise limits, it can, with the\ngreater facility, mask, under complicated and indirect measures, the\nencroachments which it makes on the co-ordinate departments. It is not\nunfrequently a question of real nicety in legislative bodies, whether\nthe operation of a particular measure will, or will not, extend beyond\nthe legislative sphere. On the other side, the executive power being\nrestrained within a narrower compass, and being more simple in its\nnature, and the judiciary being described by landmarks still less\nuncertain, projects of usurpation by either of these departments would\nimmediately betray and defeat themselves. Nor is this all: as the\nlegislative department alone has access to the pockets of the people,\nand has in some constitutions full discretion, and in all a prevailing\ninfluence, over the pecuniary rewards of those who fill the other\ndepartments, a dependence is thus created in the latter, which gives\nstill greater facility to encroachments of the former.\n\nI have appealed to our own experience for the truth of what I advance on\nthis subject. Were it necessary to verify this experience by particular\nproofs, they might be multiplied without end. I might find a witness\nin every citizen who has shared in, or been attentive to, the course of\npublic administrations. I might collect vouchers in abundance from the\nrecords and archives of every State in the Union. But as a more concise,\nand at the same time equally satisfactory, evidence, I will refer to the\nexample of two States, attested by two unexceptionable authorities.\n\nThe first example is that of Virginia, a State which, as we have\nseen, has expressly declared in its constitution, that the three great\ndepartments ought not to be intermixed. The authority in support of it\nis Mr. Jefferson, who, besides his other advantages for remarking the\noperation of the government, was himself the chief magistrate of it. In\norder to convey fully the ideas with which his experience had impressed\nhim on this subject, it will be necessary to quote a passage of some\nlength from his very interesting Notes on the State of Virginia, p. 195.\n\"All the powers of government, legislative, executive, and judiciary,\nresult to the legislative body. The concentrating these in the same\nhands, is precisely the definition of despotic government. It will be\nno alleviation, that these powers will be exercised by a plurality of\nhands, and not by a single one. One hundred and seventy-three despots\nwould surely be as oppressive as one. Let those who doubt it, turn their\neyes on the republic of Venice. As little will it avail us, that they\nare chosen by ourselves. An ELECTIVE DESPOTISM was not the government we\nfought for; but one which should not only be founded on free principles,\nbut in which the powers of government should be so divided and balanced\namong several bodies of magistracy, as that no one could transcend their\nlegal limits, without being effectually checked and restrained by the\nothers. For this reason, that convention which passed the ordinance of\ngovernment, laid its foundation on this basis, that the legislative,\nexecutive, and judiciary departments should be separate and distinct,\nso that no person should exercise the powers of more than one of them at\nthe same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS.\nThe judiciary and the executive members were left dependent on the\nlegislative for their subsistence in office, and some of them for their\ncontinuance in it. If, therefore, the legislature assumes executive and\njudiciary powers, no opposition is likely to be made; nor, if made, can\nbe effectual; because in that case they may put their proceedings into\nthe form of acts of Assembly, which will render them obligatory on the\nother branches. They have accordingly, IN MANY instances, DECIDED RIGHTS\nwhich should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION\nOF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING\nHABITUAL AND FAMILIAR.\"\n\nThe other State which I shall take for an example is Pennsylvania; and\nthe other authority, the Council of Censors, which assembled in the\nyears 1783 and 1784. A part of the duty of this body, as marked out\nby the constitution, was \"to inquire whether the constitution had been\npreserved inviolate in every part; and whether the legislative and\nexecutive branches of government had performed their duty as guardians\nof the people, or assumed to themselves, or exercised, other or greater\npowers than they are entitled to by the constitution.\" In the execution\nof this trust, the council were necessarily led to a comparison of\nboth the legislative and executive proceedings, with the constitutional\npowers of these departments; and from the facts enumerated, and to the\ntruth of most of which both sides in the council subscribed, it appears\nthat the constitution had been flagrantly violated by the legislature in\na variety of important instances.\n\nA great number of laws had been passed, violating, without any apparent\nnecessity, the rule requiring that all bills of a public nature shall be\npreviously printed for the consideration of the people; although this\nis one of the precautions chiefly relied on by the constitution against\nimproper acts of legislature.\n\nThe constitutional trial by jury had been violated, and powers assumed\nwhich had not been delegated by the constitution.\n\nExecutive powers had been usurped.\n\nThe salaries of the judges, which the constitution expressly requires\nto be fixed, had been occasionally varied; and cases belonging to the\njudiciary department frequently drawn within legislative cognizance and\ndetermination.\n\nThose who wish to see the several particulars falling under each of\nthese heads, may consult the journals of the council, which are in\nprint. Some of them, it will be found, may be imputable to peculiar\ncircumstances connected with the war; but the greater part of them\nmay be considered as the spontaneous shoots of an ill-constituted\ngovernment.\n\nIt appears, also, that the executive department had not been innocent\nof frequent breaches of the constitution. There are three observations,\nhowever, which ought to be made on this head: FIRST, a great proportion\nof the instances were either immediately produced by the necessities of\nthe war, or recommended by Congress or the commander-in-chief; SECOND,\nin most of the other instances, they conformed either to the declared or\nthe known sentiments of the legislative department; THIRD, the executive\ndepartment of Pennsylvania is distinguished from that of the other\nStates by the number of members composing it. In this respect, it has as\nmuch affinity to a legislative assembly as to an executive council. And\nbeing at once exempt from the restraint of an individual responsibility\nfor the acts of the body, and deriving confidence from mutual example\nand joint influence, unauthorized measures would, of course, be more\nfreely hazarded, than where the executive department is administered by\na single hand, or by a few hands.\n\nThe conclusion which I am warranted in drawing from these observations\nis, that a mere demarcation on parchment of the constitutional limits\nof the several departments, is not a sufficient guard against those\nencroachments which lead to a tyrannical concentration of all the powers\nof government in the same hands.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 49\n\nMethod of Guarding Against the Encroachments of Any One Department of\nGovernment by Appealing to the People Through a Convention.\n\nFor the Independent Journal. Saturday, February 2, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE author of the \"Notes on the State of Virginia,\" quoted in the\nlast paper, has subjoined to that valuable work the draught of a\nconstitution, which had been prepared in order to be laid before a\nconvention, expected to be called in 1783, by the legislature, for the\nestablishment of a constitution for that commonwealth. The plan, like\nevery thing from the same pen, marks a turn of thinking, original,\ncomprehensive, and accurate; and is the more worthy of attention as it\nequally displays a fervent attachment to republican government and an\nenlightened view of the dangerous propensities against which it ought\nto be guarded. One of the precautions which he proposes, and on which he\nappears ultimately to rely as a palladium to the weaker departments of\npower against the invasions of the stronger, is perhaps altogether\nhis own, and as it immediately relates to the subject of our present\ninquiry, ought not to be overlooked.\n\nHis proposition is, \"that whenever any two of the three branches of\ngovernment shall concur in opinion, each by the voices of two thirds\nof their whole number, that a convention is necessary for altering the\nconstitution, or CORRECTING BREACHES OF IT, a convention shall be called\nfor the purpose.\"\n\nAs the people are the only legitimate fountain of power, and it is from\nthem that the constitutional charter, under which the several branches\nof government hold their power, is derived, it seems strictly consonant\nto the republican theory, to recur to the same original authority, not\nonly whenever it may be necessary to enlarge, diminish, or new-model the\npowers of the government, but also whenever any one of the departments\nmay commit encroachments on the chartered authorities of the others. The\nseveral departments being perfectly co-ordinate by the terms of their\ncommon commission, none of them, it is evident, can pretend to an\nexclusive or superior right of settling the boundaries between their\nrespective powers; and how are the encroachments of the stronger to\nbe prevented, or the wrongs of the weaker to be redressed, without\nan appeal to the people themselves, who, as the grantors of the\ncommissions, can alone declare its true meaning, and enforce its\nobservance?\n\nThere is certainly great force in this reasoning, and it must be allowed\nto prove that a constitutional road to the decision of the people ought\nto be marked out and kept open, for certain great and extraordinary\noccasions. But there appear to be insuperable objections against the\nproposed recurrence to the people, as a provision in all cases for\nkeeping the several departments of power within their constitutional\nlimits.\n\nIn the first place, the provision does not reach the case of a\ncombination of two of the departments against the third. If the\nlegislative authority, which possesses so many means of operating on the\nmotives of the other departments, should be able to gain to its interest\neither of the others, or even one third of its members, the remaining\ndepartment could derive no advantage from its remedial provision. I do\nnot dwell, however, on this objection, because it may be thought to\nbe rather against the modification of the principle, than against the\nprinciple itself.\n\nIn the next place, it may be considered as an objection inherent in the\nprinciple, that as every appeal to the people would carry an implication\nof some defect in the government, frequent appeals would, in a great\nmeasure, deprive the government of that veneration which time bestows on\nevery thing, and without which perhaps the wisest and freest governments\nwould not possess the requisite stability. If it be true that all\ngovernments rest on opinion, it is no less true that the strength of\nopinion in each individual, and its practical influence on his conduct,\ndepend much on the number which he supposes to have entertained the same\nopinion. The reason of man, like man himself, is timid and cautious when\nleft alone, and acquires firmness and confidence in proportion to the\nnumber with which it is associated. When the examples which fortify\nopinion are ANCIENT as well as NUMEROUS, they are known to have a double\neffect. In a nation of philosophers, this consideration ought to be\ndisregarded. A reverence for the laws would be sufficiently inculcated\nby the voice of an enlightened reason. But a nation of philosophers is\nas little to be expected as the philosophical race of kings wished for\nby Plato. And in every other nation, the most rational government\nwill not find it a superfluous advantage to have the prejudices of the\ncommunity on its side.\n\nThe danger of disturbing the public tranquillity by interesting too\nstrongly the public passions, is a still more serious objection against\na frequent reference of constitutional questions to the decision of\nthe whole society. Notwithstanding the success which has attended the\nrevisions of our established forms of government, and which does so much\nhonor to the virtue and intelligence of the people of America, it must\nbe confessed that the experiments are of too ticklish a nature to be\nunnecessarily multiplied. We are to recollect that all the existing\nconstitutions were formed in the midst of a danger which repressed\nthe passions most unfriendly to order and concord; of an enthusiastic\nconfidence of the people in their patriotic leaders, which stifled\nthe ordinary diversity of opinions on great national questions; of a\nuniversal ardor for new and opposite forms, produced by a universal\nresentment and indignation against the ancient government; and whilst no\nspirit of party connected with the changes to be made, or the abuses\nto be reformed, could mingle its leaven in the operation. The future\nsituations in which we must expect to be usually placed, do not present\nany equivalent security against the danger which is apprehended.\n\nBut the greatest objection of all is, that the decisions which would\nprobably result from such appeals would not answer the purpose of\nmaintaining the constitutional equilibrium of the government. We have\nseen that the tendency of republican governments is to an aggrandizement\nof the legislative at the expense of the other departments. The appeals\nto the people, therefore, would usually be made by the executive and\njudiciary departments. But whether made by one side or the other,\nwould each side enjoy equal advantages on the trial? Let us view\ntheir different situations. The members of the executive and judiciary\ndepartments are few in number, and can be personally known to a small\npart only of the people. The latter, by the mode of their appointment,\nas well as by the nature and permanency of it, are too far removed\nfrom the people to share much in their prepossessions. The former are\ngenerally the objects of jealousy, and their administration is always\nliable to be discolored and rendered unpopular. The members of the\nlegislative department, on the other hand, are numerous. They are\ndistributed and dwell among the people at large. Their connections of\nblood, of friendship, and of acquaintance embrace a great proportion\nof the most influential part of the society. The nature of their public\ntrust implies a personal influence among the people, and that they are\nmore immediately the confidential guardians of the rights and liberties\nof the people. With these advantages, it can hardly be supposed that the\nadverse party would have an equal chance for a favorable issue.\n\nBut the legislative party would not only be able to plead their cause\nmost successfully with the people. They would probably be constituted\nthemselves the judges. The same influence which had gained them an\nelection into the legislature, would gain them a seat in the convention.\nIf this should not be the case with all, it would probably be the case\nwith many, and pretty certainly with those leading characters, on whom\nevery thing depends in such bodies. The convention, in short, would be\ncomposed chiefly of men who had been, who actually were, or who expected\nto be, members of the department whose conduct was arraigned. They would\nconsequently be parties to the very question to be decided by them.\n\nIt might, however, sometimes happen, that appeals would be made under\ncircumstances less adverse to the executive and judiciary departments.\nThe usurpations of the legislature might be so flagrant and so sudden,\nas to admit of no specious coloring. A strong party among themselves\nmight take side with the other branches. The executive power might be\nin the hands of a peculiar favorite of the people. In such a posture of\nthings, the public decision might be less swayed by prepossessions in\nfavor of the legislative party. But still it could never be expected\nto turn on the true merits of the question. It would inevitably be\nconnected with the spirit of pre-existing parties, or of parties\nspringing out of the question itself. It would be connected with persons\nof distinguished character and extensive influence in the community. It\nwould be pronounced by the very men who had been agents in, or opponents\nof, the measures to which the decision would relate. The PASSIONS,\ntherefore, not the REASON, of the public would sit in judgment. But it\nis the reason, alone, of the public, that ought to control and regulate\nthe government. The passions ought to be controlled and regulated by the\ngovernment.\n\nWe found in the last paper, that mere declarations in the written\nconstitution are not sufficient to restrain the several departments\nwithin their legal rights. It appears in this, that occasional appeals\nto the people would be neither a proper nor an effectual provision for\nthat purpose. How far the provisions of a different nature contained in\nthe plan above quoted might be adequate, I do not examine. Some of them\nare unquestionably founded on sound political principles, and all of\nthem are framed with singular ingenuity and precision.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 50\n\nPeriodical Appeals to the People Considered\n\nFrom the New York Packet. Tuesday, February 5, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nIT MAY be contended, perhaps, that instead of OCCASIONAL appeals to\nthe people, which are liable to the objections urged against them,\nPERIODICAL appeals are the proper and adequate means of PREVENTING AND\nCORRECTING INFRACTIONS OF THE CONSTITUTION.\n\nIt will be attended to, that in the examination of these expedients,\nI confine myself to their aptitude for ENFORCING the Constitution,\nby keeping the several departments of power within their due bounds,\nwithout particularly considering them as provisions for ALTERING the\nConstitution itself. In the first view, appeals to the people at fixed\nperiods appear to be nearly as ineligible as appeals on particular\noccasions as they emerge. If the periods be separated by short\nintervals, the measures to be reviewed and rectified will have been of\nrecent date, and will be connected with all the circumstances which\ntend to vitiate and pervert the result of occasional revisions. If the\nperiods be distant from each other, the same remark will be applicable\nto all recent measures; and in proportion as the remoteness of the\nothers may favor a dispassionate review of them, this advantage is\ninseparable from inconveniences which seem to counterbalance it. In the\nfirst place, a distant prospect of public censure would be a very feeble\nrestraint on power from those excesses to which it might be urged by\nthe force of present motives. Is it to be imagined that a legislative\nassembly, consisting of a hundred or two hundred members, eagerly bent\non some favorite object, and breaking through the restraints of the\nConstitution in pursuit of it, would be arrested in their career, by\nconsiderations drawn from a censorial revision of their conduct at the\nfuture distance of ten, fifteen, or twenty years? In the next place, the\nabuses would often have completed their mischievous effects before the\nremedial provision would be applied. And in the last place, where this\nmight not be the case, they would be of long standing, would have taken\ndeep root, and would not easily be extirpated.\n\nThe scheme of revising the constitution, in order to correct recent\nbreaches of it, as well as for other purposes, has been actually tried\nin one of the States. One of the objects of the Council of Censors which\nmet in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire,\n\"whether the constitution had been violated, and whether the legislative\nand executive departments had encroached upon each other.\" This\nimportant and novel experiment in politics merits, in several points of\nview, very particular attention. In some of them it may, perhaps, as\na single experiment, made under circumstances somewhat peculiar, be\nthought to be not absolutely conclusive. But as applied to the case\nunder consideration, it involves some facts, which I venture to remark,\nas a complete and satisfactory illustration of the reasoning which I\nhave employed.\n\nFirst. It appears, from the names of the gentlemen who composed the\ncouncil, that some, at least, of its most active members had also been\nactive and leading characters in the parties which pre-existed in the\nState.\n\nSecond. It appears that the same active and leading members of the\ncouncil had been active and influential members of the legislative and\nexecutive branches, within the period to be reviewed; and even patrons\nor opponents of the very measures to be thus brought to the test of the\nconstitution. Two of the members had been vice-presidents of the State,\nand several other members of the executive council, within the seven\npreceding years. One of them had been speaker, and a number of others\ndistinguished members, of the legislative assembly within the same\nperiod.\n\nThird. Every page of their proceedings witnesses the effect of all\nthese circumstances on the temper of their deliberations. Throughout\nthe continuance of the council, it was split into two fixed and violent\nparties. The fact is acknowledged and lamented by themselves. Had\nthis not been the case, the face of their proceedings exhibits a\nproof equally satisfactory. In all questions, however unimportant\nin themselves, or unconnected with each other, the same names stand\ninvariably contrasted on the opposite columns. Every unbiased observer\nmay infer, without danger of mistake, and at the same time without\nmeaning to reflect on either party, or any individuals of either party,\nthat, unfortunately, PASSION, not REASON, must have presided over their\ndecisions. When men exercise their reason coolly and freely on a variety\nof distinct questions, they inevitably fall into different opinions\non some of them. When they are governed by a common passion, their\nopinions, if they are so to be called, will be the same.\n\nFourth. It is at least problematical, whether the decisions of this body\ndo not, in several instances, misconstrue the limits prescribed for the\nlegislative and executive departments, instead of reducing and limiting\nthem within their constitutional places.\n\nFifth. I have never understood that the decisions of the council on\nconstitutional questions, whether rightly or erroneously formed,\nhave had any effect in varying the practice founded on legislative\nconstructions. It even appears, if I mistake not, that in one instance\nthe contemporary legislature denied the constructions of the council,\nand actually prevailed in the contest.\n\nThis censorial body, therefore, proves at the same time, by its\nresearches, the existence of the disease, and by its example, the\ninefficacy of the remedy.\n\nThis conclusion cannot be invalidated by alleging that the State in\nwhich the experiment was made was at that crisis, and had been for a\nlong time before, violently heated and distracted by the rage of party.\nIs it to be presumed, that at any future septennial epoch the same State\nwill be free from parties? Is it to be presumed that any other State,\nat the same or any other given period, will be exempt from them? Such an\nevent ought to be neither presumed nor desired; because an extinction\nof parties necessarily implies either a universal alarm for the public\nsafety, or an absolute extinction of liberty.\n\nWere the precaution taken of excluding from the assemblies elected by\nthe people, to revise the preceding administration of the government,\nall persons who should have been concerned with the government within\nthe given period, the difficulties would not be obviated. The important\ntask would probably devolve on men, who, with inferior capacities, would\nin other respects be little better qualified. Although they might not\nhave been personally concerned in the administration, and therefore not\nimmediately agents in the measures to be examined, they would probably\nhave been involved in the parties connected with these measures, and\nhave been elected under their auspices.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 51\n\nThe Structure of the Government Must Furnish the Proper Checks and\nBalances Between the Different Departments.\n\nFor the Independent Journal. Wednesday, February 6, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTO WHAT expedient, then, shall we finally resort, for maintaining in\npractice the necessary partition of power among the several departments,\nas laid down in the Constitution? The only answer that can be given is,\nthat as all these exterior provisions are found to be inadequate, the\ndefect must be supplied, by so contriving the interior structure of the\ngovernment as that its several constituent parts may, by their mutual\nrelations, be the means of keeping each other in their proper places.\nWithout presuming to undertake a full development of this important\nidea, I will hazard a few general observations, which may perhaps place\nit in a clearer light, and enable us to form a more correct judgment\nof the principles and structure of the government planned by the\nconvention.\n\nIn order to lay a due foundation for that separate and distinct exercise\nof the different powers of government, which to a certain extent is\nadmitted on all hands to be essential to the preservation of liberty,\nit is evident that each department should have a will of its own; and\nconsequently should be so constituted that the members of each should\nhave as little agency as possible in the appointment of the members of\nthe others. Were this principle rigorously adhered to, it would require\nthat all the appointments for the supreme executive, legislative,\nand judiciary magistracies should be drawn from the same fountain of\nauthority, the people, through channels having no communication whatever\nwith one another. Perhaps such a plan of constructing the several\ndepartments would be less difficult in practice than it may in\ncontemplation appear. Some difficulties, however, and some additional\nexpense would attend the execution of it. Some deviations, therefore,\nfrom the principle must be admitted. In the constitution of the\njudiciary department in particular, it might be inexpedient to insist\nrigorously on the principle: first, because peculiar qualifications\nbeing essential in the members, the primary consideration ought to be\nto select that mode of choice which best secures these qualifications;\nsecondly, because the permanent tenure by which the appointments are\nheld in that department, must soon destroy all sense of dependence on\nthe authority conferring them.\n\nIt is equally evident, that the members of each department should be as\nlittle dependent as possible on those of the others, for the emoluments\nannexed to their offices. Were the executive magistrate, or the\njudges, not independent of the legislature in this particular, their\nindependence in every other would be merely nominal.\n\nBut the great security against a gradual concentration of the several\npowers in the same department, consists in giving to those who\nadminister each department the necessary constitutional means and\npersonal motives to resist encroachments of the others. The provision\nfor defense must in this, as in all other cases, be made commensurate to\nthe danger of attack. Ambition must be made to counteract ambition. The\ninterest of the man must be connected with the constitutional rights\nof the place. It may be a reflection on human nature, that such devices\nshould be necessary to control the abuses of government. But what is\ngovernment itself, but the greatest of all reflections on human nature?\nIf men were angels, no government would be necessary. If angels were to\ngovern men, neither external nor internal controls on government would\nbe necessary. In framing a government which is to be administered by men\nover men, the great difficulty lies in this: you must first enable the\ngovernment to control the governed; and in the next place oblige it to\ncontrol itself. A dependence on the people is, no doubt, the primary\ncontrol on the government; but experience has taught mankind the\nnecessity of auxiliary precautions.\n\nThis policy of supplying, by opposite and rival interests, the defect\nof better motives, might be traced through the whole system of human\naffairs, private as well as public. We see it particularly displayed in\nall the subordinate distributions of power, where the constant aim is to\ndivide and arrange the several offices in such a manner as that each may\nbe a check on the other--that the private interest of every individual\nmay be a sentinel over the public rights. These inventions of prudence\ncannot be less requisite in the distribution of the supreme powers of\nthe State.\n\nBut it is not possible to give to each department an equal power of\nself-defense. In republican government, the legislative authority\nnecessarily predominates. The remedy for this inconveniency is to\ndivide the legislature into different branches; and to render them,\nby different modes of election and different principles of action, as\nlittle connected with each other as the nature of their common functions\nand their common dependence on the society will admit. It may even be\nnecessary to guard against dangerous encroachments by still further\nprecautions. As the weight of the legislative authority requires that\nit should be thus divided, the weakness of the executive may require, on\nthe other hand, that it should be fortified. An absolute negative on the\nlegislature appears, at first view, to be the natural defense with\nwhich the executive magistrate should be armed. But perhaps it would be\nneither altogether safe nor alone sufficient. On ordinary occasions it\nmight not be exerted with the requisite firmness, and on extraordinary\noccasions it might be perfidiously abused. May not this defect of an\nabsolute negative be supplied by some qualified connection between this\nweaker department and the weaker branch of the stronger department, by\nwhich the latter may be led to support the constitutional rights of\nthe former, without being too much detached from the rights of its own\ndepartment?\n\nIf the principles on which these observations are founded be just, as\nI persuade myself they are, and they be applied as a criterion to the\nseveral State constitutions, and to the federal Constitution it will be\nfound that if the latter does not perfectly correspond with them, the\nformer are infinitely less able to bear such a test.\n\nThere are, moreover, two considerations particularly applicable to the\nfederal system of America, which place that system in a very interesting\npoint of view.\n\nFirst. In a single republic, all the power surrendered by the people\nis submitted to the administration of a single government; and the\nusurpations are guarded against by a division of the government into\ndistinct and separate departments. In the compound republic of America,\nthe power surrendered by the people is first divided between two\ndistinct governments, and then the portion allotted to each subdivided\namong distinct and separate departments. Hence a double security arises\nto the rights of the people. The different governments will control each\nother, at the same time that each will be controlled by itself.\n\nSecond. It is of great importance in a republic not only to guard the\nsociety against the oppression of its rulers, but to guard one part of\nthe society against the injustice of the other part. Different interests\nnecessarily exist in different classes of citizens. If a majority\nbe united by a common interest, the rights of the minority will be\ninsecure. There are but two methods of providing against this evil:\nthe one by creating a will in the community independent of the\nmajority--that is, of the society itself; the other, by comprehending in\nthe society so many separate descriptions of citizens as will render an\nunjust combination of a majority of the whole very improbable, if not\nimpracticable. The first method prevails in all governments possessing\nan hereditary or self-appointed authority. This, at best, is but a\nprecarious security; because a power independent of the society may as\nwell espouse the unjust views of the major, as the rightful interests\nof the minor party, and may possibly be turned against both parties. The\nsecond method will be exemplified in the federal republic of the United\nStates. Whilst all authority in it will be derived from and dependent\non the society, the society itself will be broken into so many parts,\ninterests, and classes of citizens, that the rights of individuals, or\nof the minority, will be in little danger from interested combinations\nof the majority. In a free government the security for civil rights must\nbe the same as that for religious rights. It consists in the one case in\nthe multiplicity of interests, and in the other in the multiplicity of\nsects. The degree of security in both cases will depend on the number of\ninterests and sects; and this may be presumed to depend on the extent\nof country and number of people comprehended under the same government.\nThis view of the subject must particularly recommend a proper federal\nsystem to all the sincere and considerate friends of republican\ngovernment, since it shows that in exact proportion as the territory of\nthe Union may be formed into more circumscribed Confederacies, or States\noppressive combinations of a majority will be facilitated: the best\nsecurity, under the republican forms, for the rights of every class\nof citizens, will be diminished: and consequently the stability and\nindependence of some member of the government, the only other security,\nmust be proportionately increased. Justice is the end of government. It\nis the end of civil society. It ever has been and ever will be pursued\nuntil it be obtained, or until liberty be lost in the pursuit. In a\nsociety under the forms of which the stronger faction can readily unite\nand oppress the weaker, anarchy may as truly be said to reign as in a\nstate of nature, where the weaker individual is not secured against the\nviolence of the stronger; and as, in the latter state, even the stronger\nindividuals are prompted, by the uncertainty of their condition, to\nsubmit to a government which may protect the weak as well as themselves;\nso, in the former state, will the more powerful factions or parties be\ngradually induced, by a like motive, to wish for a government which will\nprotect all parties, the weaker as well as the more powerful. It can be\nlittle doubted that if the State of Rhode Island was separated from\nthe Confederacy and left to itself, the insecurity of rights under the\npopular form of government within such narrow limits would be displayed\nby such reiterated oppressions of factious majorities that some power\naltogether independent of the people would soon be called for by the\nvoice of the very factions whose misrule had proved the necessity of\nit. In the extended republic of the United States, and among the great\nvariety of interests, parties, and sects which it embraces, a coalition\nof a majority of the whole society could seldom take place on any other\nprinciples than those of justice and the general good; whilst there\nbeing thus less danger to a minor from the will of a major party, there\nmust be less pretext, also, to provide for the security of the former,\nby introducing into the government a will not dependent on the latter,\nor, in other words, a will independent of the society itself. It is no\nless certain than it is important, notwithstanding the contrary opinions\nwhich have been entertained, that the larger the society, provided\nit lie within a practical sphere, the more duly capable it will be of\nself-government. And happily for the REPUBLICAN CAUSE, the practicable\nsphere may be carried to a very great extent, by a judicious\nmodification and mixture of the FEDERAL PRINCIPLE.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 52\n\nThe House of Representatives\n\nFrom the New York Packet. Friday, February 8, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nFROM the more general inquiries pursued in the four last papers, I\npass on to a more particular examination of the several parts of the\ngovernment. I shall begin with the House of Representatives.\n\nThe first view to be taken of this part of the government relates to the\nqualifications of the electors and the elected. Those of the former are\nto be the same with those of the electors of the most numerous branch of\nthe State legislatures. The definition of the right of suffrage is very\njustly regarded as a fundamental article of republican government. It\nwas incumbent on the convention, therefore, to define and establish\nthis right in the Constitution. To have left it open for the occasional\nregulation of the Congress, would have been improper for the reason just\nmentioned. To have submitted it to the legislative discretion of the\nStates, would have been improper for the same reason; and for the\nadditional reason that it would have rendered too dependent on the State\ngovernments that branch of the federal government which ought to\nbe dependent on the people alone. To have reduced the different\nqualifications in the different States to one uniform rule, would\nprobably have been as dissatisfactory to some of the States as it\nwould have been difficult to the convention. The provision made by the\nconvention appears, therefore, to be the best that lay within\ntheir option. It must be satisfactory to every State, because it\nis conformable to the standard already established, or which may be\nestablished, by the State itself. It will be safe to the United States,\nbecause, being fixed by the State constitutions, it is not alterable by\nthe State governments, and it cannot be feared that the people of the\nStates will alter this part of their constitutions in such a manner as\nto abridge the rights secured to them by the federal Constitution.\n\nThe qualifications of the elected, being less carefully and properly\ndefined by the State constitutions, and being at the same time more\nsusceptible of uniformity, have been very properly considered and\nregulated by the convention. A representative of the United States must\nbe of the age of twenty-five years; must have been seven years a\ncitizen of the United States; must, at the time of his election, be an\ninhabitant of the State he is to represent; and, during the time of\nhis service, must be in no office under the United States. Under these\nreasonable limitations, the door of this part of the federal government\nis open to merit of every description, whether native or adoptive,\nwhether young or old, and without regard to poverty or wealth, or to any\nparticular profession of religious faith.\n\nThe term for which the representatives are to be elected falls under a\nsecond view which may be taken of this branch. In order to decide on\nthe propriety of this article, two questions must be considered: first,\nwhether biennial elections will, in this case, be safe; secondly,\nwhether they be necessary or useful.\n\nFirst. As it is essential to liberty that the government in general\nshould have a common interest with the people, so it is particularly\nessential that the branch of it under consideration should have an\nimmediate dependence on, and an intimate sympathy with, the people.\nFrequent elections are unquestionably the only policy by which this\ndependence and sympathy can be effectually secured. But what particular\ndegree of frequency may be absolutely necessary for the purpose, does\nnot appear to be susceptible of any precise calculation, and must depend\non a variety of circumstances with which it may be connected. Let us\nconsult experience, the guide that ought always to be followed whenever\nit can be found.\n\nThe scheme of representation, as a substitute for a meeting of the\ncitizens in person, being at most but very imperfectly known to\nancient polity, it is in more modern times only that we are to expect\ninstructive examples. And even here, in order to avoid a research too\nvague and diffusive, it will be proper to confine ourselves to the few\nexamples which are best known, and which bear the greatest analogy\nto our particular case. The first to which this character ought to be\napplied, is the House of Commons in Great Britain. The history of\nthis branch of the English Constitution, anterior to the date of Magna\nCharta, is too obscure to yield instruction. The very existence of\nit has been made a question among political antiquaries. The earliest\nrecords of subsequent date prove that parliaments were to SIT only every\nyear; not that they were to be ELECTED every year. And even these annual\nsessions were left so much at the discretion of the monarch, that,\nunder various pretexts, very long and dangerous intermissions were often\ncontrived by royal ambition. To remedy this grievance, it was provided\nby a statute in the reign of Charles II, that the intermissions should\nnot be protracted beyond a period of three years. On the accession of\nWilliam III, when a revolution took place in the government, the subject\nwas still more seriously resumed, and it was declared to be among the\nfundamental rights of the people that parliaments ought to be held\nFREQUENTLY. By another statute, which passed a few years later in the\nsame reign, the term \"frequently,\" which had alluded to the triennial\nperiod settled in the time of Charles II, is reduced to a precise\nmeaning, it being expressly enacted that a new parliament shall be\ncalled within three years after the termination of the former. The last\nchange, from three to seven years, is well known to have been introduced\npretty early in the present century, under on alarm for the Hanoverian\nsuccession. From these facts it appears that the greatest frequency of\nelections which has been deemed necessary in that kingdom, for binding\nthe representatives to their constituents, does not exceed a triennial\nreturn of them. And if we may argue from the degree of liberty retained\neven under septennial elections, and all the other vicious ingredients\nin the parliamentary constitution, we cannot doubt that a reduction of\nthe period from seven to three years, with the other necessary\nreforms, would so far extend the influence of the people over their\nrepresentatives as to satisfy us that biennial elections, under the\nfederal system, cannot possibly be dangerous to the requisite dependence\nof the House of Representatives on their constituents.\n\nElections in Ireland, till of late, were regulated entirely by the\ndiscretion of the crown, and were seldom repeated, except on the\naccession of a new prince, or some other contingent event. The\nparliament which commenced with George II. was continued throughout his\nwhole reign, a period of about thirty-five years. The only dependence of\nthe representatives on the people consisted in the right of the latter\nto supply occasional vacancies by the election of new members, and in\nthe chance of some event which might produce a general new election.\nThe ability also of the Irish parliament to maintain the rights of\ntheir constituents, so far as the disposition might exist, was extremely\nshackled by the control of the crown over the subjects of their\ndeliberation. Of late these shackles, if I mistake not, have been\nbroken; and octennial parliaments have besides been established. What\neffect may be produced by this partial reform, must be left to further\nexperience. The example of Ireland, from this view of it, can throw but\nlittle light on the subject. As far as we can draw any conclusion from\nit, it must be that if the people of that country have been able under\nall these disadvantages to retain any liberty whatever, the advantage of\nbiennial elections would secure to them every degree of liberty, which\nmight depend on a due connection between their representatives and\nthemselves.\n\nLet us bring our inquiries nearer home. The example of these States,\nwhen British colonies, claims particular attention, at the same time\nthat it is so well known as to require little to be said on it. The\nprinciple of representation, in one branch of the legislature at\nleast, was established in all of them. But the periods of election were\ndifferent. They varied from one to seven years. Have we any reason to\ninfer, from the spirit and conduct of the representatives of the\npeople, prior to the Revolution, that biennial elections would have been\ndangerous to the public liberties? The spirit which everywhere displayed\nitself at the commencement of the struggle, and which vanquished the\nobstacles to independence, is the best of proofs that a sufficient\nportion of liberty had been everywhere enjoyed to inspire both a sense\nof its worth and a zeal for its proper enlargement This remark holds\ngood, as well with regard to the then colonies whose elections were\nleast frequent, as to those whose elections were most frequent Virginia\nwas the colony which stood first in resisting the parliamentary\nusurpations of Great Britain; it was the first also in espousing, by\npublic act, the resolution of independence. In Virginia, nevertheless,\nif I have not been misinformed, elections under the former government\nwere septennial. This particular example is brought into view, not as\na proof of any peculiar merit, for the priority in those instances\nwas probably accidental; and still less of any advantage in SEPTENNIAL\nelections, for when compared with a greater frequency they are\ninadmissible; but merely as a proof, and I conceive it to be a very\nsubstantial proof, that the liberties of the people can be in no danger\nfrom BIENNIAL elections.\n\nThe conclusion resulting from these examples will be not a little\nstrengthened by recollecting three circumstances. The first is, that the\nfederal legislature will possess a part only of that supreme legislative\nauthority which is vested completely in the British Parliament; and\nwhich, with a few exceptions, was exercised by the colonial assemblies\nand the Irish legislature. It is a received and well-founded maxim, that\nwhere no other circumstances affect the case, the greater the power is,\nthe shorter ought to be its duration; and, conversely, the smaller the\npower, the more safely may its duration be protracted. In the second\nplace, it has, on another occasion, been shown that the federal\nlegislature will not only be restrained by its dependence on its people,\nas other legislative bodies are, but that it will be, moreover, watched\nand controlled by the several collateral legislatures, which other\nlegislative bodies are not. And in the third place, no comparison can\nbe made between the means that will be possessed by the more permanent\nbranches of the federal government for seducing, if they should be\ndisposed to seduce, the House of Representatives from their duty to the\npeople, and the means of influence over the popular branch possessed\nby the other branches of the government above cited. With less power,\ntherefore, to abuse, the federal representatives can be less tempted on\none side, and will be doubly watched on the other.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 53\n\nThe Same Subject Continued (The House of Representatives)\n\nFor the Independent Journal. Saturday, February 9, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nI SHALL here, perhaps, be reminded of a current observation, \"that where\nannual elections end, tyranny begins.\" If it be true, as has often been\nremarked, that sayings which become proverbial are generally founded in\nreason, it is not less true, that when once established, they are often\napplied to cases to which the reason of them does not extend. I need not\nlook for a proof beyond the case before us. What is the reason on which\nthis proverbial observation is founded? No man will subject himself to\nthe ridicule of pretending that any natural connection subsists between\nthe sun or the seasons, and the period within which human virtue can\nbear the temptations of power. Happily for mankind, liberty is not,\nin this respect, confined to any single point of time; but lies within\nextremes, which afford sufficient latitude for all the variations which\nmay be required by the various situations and circumstances of civil\nsociety. The election of magistrates might be, if it were found\nexpedient, as in some instances it actually has been, daily, weekly, or\nmonthly, as well as annual; and if circumstances may require a deviation\nfrom the rule on one side, why not also on the other side? Turning our\nattention to the periods established among ourselves, for the election\nof the most numerous branches of the State legislatures, we find them by\nno means coinciding any more in this instance, than in the elections of\nother civil magistrates. In Connecticut and Rhode Island, the periods\nare half-yearly. In the other States, South Carolina excepted, they\nare annual. In South Carolina they are biennial--as is proposed in the\nfederal government. Here is a difference, as four to one, between the\nlongest and shortest periods; and yet it would be not easy to show,\nthat Connecticut or Rhode Island is better governed, or enjoys a greater\nshare of rational liberty, than South Carolina; or that either the one\nor the other of these States is distinguished in these respects, and by\nthese causes, from the States whose elections are different from both.\n\nIn searching for the grounds of this doctrine, I can discover but one,\nand that is wholly inapplicable to our case. The important distinction\nso well understood in America, between a Constitution established by the\npeople and unalterable by the government, and a law established by the\ngovernment and alterable by the government, seems to have been little\nunderstood and less observed in any other country. Wherever the supreme\npower of legislation has resided, has been supposed to reside also a\nfull power to change the form of the government. Even in Great Britain,\nwhere the principles of political and civil liberty have been most\ndiscussed, and where we hear most of the rights of the Constitution, it\nis maintained that the authority of the Parliament is transcendent and\nuncontrollable, as well with regard to the Constitution, as the ordinary\nobjects of legislative provision. They have accordingly, in several\ninstances, actually changed, by legislative acts, some of the most\nfundamental articles of the government. They have in particular, on\nseveral occasions, changed the period of election; and, on the\nlast occasion, not only introduced septennial in place of triennial\nelections, but by the same act, continued themselves in place four years\nbeyond the term for which they were elected by the people. An attention\nto these dangerous practices has produced a very natural alarm in the\nvotaries of free government, of which frequency of elections is the\ncorner-stone; and has led them to seek for some security to liberty,\nagainst the danger to which it is exposed. Where no Constitution,\nparamount to the government, either existed or could be obtained, no\nconstitutional security, similar to that established in the United\nStates, was to be attempted. Some other security, therefore, was to be\nsought for; and what better security would the case admit, than that of\nselecting and appealing to some simple and familiar portion of time,\nas a standard for measuring the danger of innovations, for fixing the\nnational sentiment, and for uniting the patriotic exertions? The most\nsimple and familiar portion of time, applicable to the subject was that\nof a year; and hence the doctrine has been inculcated by a laudable\nzeal, to erect some barrier against the gradual innovations of an\nunlimited government, that the advance towards tyranny was to be\ncalculated by the distance of departure from the fixed point of annual\nelections. But what necessity can there be of applying this expedient\nto a government limited, as the federal government will be, by the\nauthority of a paramount Constitution? Or who will pretend that the\nliberties of the people of America will not be more secure under\nbiennial elections, unalterably fixed by such a Constitution, than those\nof any other nation would be, where elections were annual, or even\nmore frequent, but subject to alterations by the ordinary power of the\ngovernment?\n\nThe second question stated is, whether biennial elections be necessary\nor useful. The propriety of answering this question in the affirmative\nwill appear from several very obvious considerations.\n\nNo man can be a competent legislator who does not add to an upright\nintention and a sound judgment a certain degree of knowledge of the\nsubjects on which he is to legislate. A part of this knowledge may be\nacquired by means of information which lie within the compass of men in\nprivate as well as public stations. Another part can only be attained,\nor at least thoroughly attained, by actual experience in the station\nwhich requires the use of it. The period of service, ought, therefore,\nin all such cases, to bear some proportion to the extent of practical\nknowledge requisite to the due performance of the service. The period\nof legislative service established in most of the States for the more\nnumerous branch is, as we have seen, one year. The question then may be\nput into this simple form: does the period of two years bear no greater\nproportion to the knowledge requisite for federal legislation than one\nyear does to the knowledge requisite for State legislation? The very\nstatement of the question, in this form, suggests the answer that ought\nto be given to it.\n\nIn a single State, the requisite knowledge relates to the existing laws\nwhich are uniform throughout the State, and with which all the citizens\nare more or less conversant; and to the general affairs of the State,\nwhich lie within a small compass, are not very diversified, and occupy\nmuch of the attention and conversation of every class of people. The\ngreat theatre of the United States presents a very different scene.\nThe laws are so far from being uniform, that they vary in every State;\nwhilst the public affairs of the Union are spread throughout a very\nextensive region, and are extremely diversified by the local affairs\nconnected with them, and can with difficulty be correctly learnt in any\nother place than in the central councils to which a knowledge of them\nwill be brought by the representatives of every part of the empire. Yet\nsome knowledge of the affairs, and even of the laws, of all the States,\nought to be possessed by the members from each of the States. How\ncan foreign trade be properly regulated by uniform laws, without\nsome acquaintance with the commerce, the ports, the usages, and the\nregulations of the different States? How can the trade between the\ndifferent States be duly regulated, without some knowledge of their\nrelative situations in these and other respects? How can taxes\nbe judiciously imposed and effectually collected, if they be not\naccommodated to the different laws and local circumstances relating to\nthese objects in the different States? How can uniform regulations\nfor the militia be duly provided, without a similar knowledge of many\ninternal circumstances by which the States are distinguished from each\nother? These are the principal objects of federal legislation,\nand suggest most forcibly the extensive information which the\nrepresentatives ought to acquire. The other interior objects will\nrequire a proportional degree of information with regard to them.\n\nIt is true that all these difficulties will, by degrees, be very much\ndiminished. The most laborious task will be the proper inauguration\nof the government and the primeval formation of a federal code.\nImprovements on the first draughts will every year become both easier\nand fewer. Past transactions of the government will be a ready and\naccurate source of information to new members. The affairs of the Union\nwill become more and more objects of curiosity and conversation among\nthe citizens at large. And the increased intercourse among those of\ndifferent States will contribute not a little to diffuse a mutual\nknowledge of their affairs, as this again will contribute to a general\nassimilation of their manners and laws. But with all these abatements,\nthe business of federal legislation must continue so far to exceed, both\nin novelty and difficulty, the legislative business of a single State,\nas to justify the longer period of service assigned to those who are to\ntransact it.\n\nA branch of knowledge which belongs to the acquirements of a federal\nrepresentative, and which has not been mentioned is that of foreign\naffairs. In regulating our own commerce he ought to be not only\nacquainted with the treaties between the United States and other\nnations, but also with the commercial policy and laws of other nations.\nHe ought not to be altogether ignorant of the law of nations; for that,\nas far as it is a proper object of municipal legislation, is submitted\nto the federal government. And although the House of Representatives is\nnot immediately to participate in foreign negotiations and arrangements,\nyet from the necessary connection between the several branches of public\naffairs, those particular branches will frequently deserve attention in\nthe ordinary course of legislation, and will sometimes demand particular\nlegislative sanction and co-operation. Some portion of this knowledge\nmay, no doubt, be acquired in a man's closet; but some of it also can\nonly be derived from the public sources of information; and all of it\nwill be acquired to best effect by a practical attention to the subject\nduring the period of actual service in the legislature.\n\nThere are other considerations, of less importance, perhaps, but\nwhich are not unworthy of notice. The distance which many of the\nrepresentatives will be obliged to travel, and the arrangements rendered\nnecessary by that circumstance, might be much more serious objections\nwith fit men to this service, if limited to a single year, than if\nextended to two years. No argument can be drawn on this subject, from\nthe case of the delegates to the existing Congress. They are elected\nannually, it is true; but their re-election is considered by the\nlegislative assemblies almost as a matter of course. The election of\nthe representatives by the people would not be governed by the same\nprinciple.\n\nA few of the members, as happens in all such assemblies, will possess\nsuperior talents; will, by frequent reelections, become members of long\nstanding; will be thoroughly masters of the public business, and perhaps\nnot unwilling to avail themselves of those advantages. The greater the\nproportion of new members, and the less the information of the bulk of\nthe members the more apt will they be to fall into the snares that may\nbe laid for them. This remark is no less applicable to the relation\nwhich will subsist between the House of Representatives and the Senate.\n\nIt is an inconvenience mingled with the advantages of our frequent\nelections even in single States, where they are large, and hold but\none legislative session in a year, that spurious elections cannot be\ninvestigated and annulled in time for the decision to have its due\neffect. If a return can be obtained, no matter by what unlawful means,\nthe irregular member, who takes his seat of course, is sure of holding\nit a sufficient time to answer his purposes. Hence, a very pernicious\nencouragement is given to the use of unlawful means, for obtaining\nirregular returns. Were elections for the federal legislature to be\nannual, this practice might become a very serious abuse, particularly in\nthe more distant States. Each house is, as it necessarily must be, the\njudge of the elections, qualifications, and returns of its members; and\nwhatever improvements may be suggested by experience, for simplifying\nand accelerating the process in disputed cases, so great a portion of\na year would unavoidably elapse, before an illegitimate member could be\ndispossessed of his seat, that the prospect of such an event would be\nlittle check to unfair and illicit means of obtaining a seat.\n\nAll these considerations taken together warrant us in affirming, that\nbiennial elections will be as useful to the affairs of the public as we\nhave seen that they will be safe to the liberty of the people.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 54\n\nThe Apportionment of Members Among the States\n\nFrom the New York Packet. Tuesday, February 12, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE next view which I shall take of the House of Representatives relates\nto the appointment of its members to the several States which is to be\ndetermined by the same rule with that of direct taxes.\n\nIt is not contended that the number of people in each State ought not\nto be the standard for regulating the proportion of those who are to\nrepresent the people of each State. The establishment of the same rule\nfor the appointment of taxes, will probably be as little contested;\nthough the rule itself in this case, is by no means founded on the same\nprinciple. In the former case, the rule is understood to refer to the\npersonal rights of the people, with which it has a natural and universal\nconnection. In the latter, it has reference to the proportion of wealth,\nof which it is in no case a precise measure, and in ordinary cases a\nvery unfit one. But notwithstanding the imperfection of the rule as\napplied to the relative wealth and contributions of the States, it is\nevidently the least objectionable among the practicable rules, and had\ntoo recently obtained the general sanction of America, not to have found\na ready preference with the convention.\n\nAll this is admitted, it will perhaps be said; but does it follow, from\nan admission of numbers for the measure of representation, or of slaves\ncombined with free citizens as a ratio of taxation, that slaves ought\nto be included in the numerical rule of representation? Slaves are\nconsidered as property, not as persons. They ought therefore to be\ncomprehended in estimates of taxation which are founded on property,\nand to be excluded from representation which is regulated by a census of\npersons. This is the objection, as I understand it, stated in its full\nforce. I shall be equally candid in stating the reasoning which may be\noffered on the opposite side.\n\n\"We subscribe to the doctrine,\" might one of our Southern brethren\nobserve, \"that representation relates more immediately to persons, and\ntaxation more immediately to property, and we join in the application of\nthis distinction to the case of our slaves. But we must deny the\nfact, that slaves are considered merely as property, and in no respect\nwhatever as persons. The true state of the case is, that they partake of\nboth these qualities: being considered by our laws, in some respects, as\npersons, and in other respects as property. In being compelled to labor,\nnot for himself, but for a master; in being vendible by one master to\nanother master; and in being subject at all times to be restrained\nin his liberty and chastised in his body, by the capricious will of\nanother--the slave may appear to be degraded from the human rank,\nand classed with those irrational animals which fall under the legal\ndenomination of property. In being protected, on the other hand, in\nhis life and in his limbs, against the violence of all others, even the\nmaster of his labor and his liberty; and in being punishable himself for\nall violence committed against others--the slave is no less evidently\nregarded by the law as a member of the society, not as a part of\nthe irrational creation; as a moral person, not as a mere article\nof property. The federal Constitution, therefore, decides with great\npropriety on the case of our slaves, when it views them in the mixed\ncharacter of persons and of property. This is in fact their true\ncharacter. It is the character bestowed on them by the laws under\nwhich they live; and it will not be denied, that these are the proper\ncriterion; because it is only under the pretext that the laws have\ntransformed the negroes into subjects of property, that a place is\ndisputed them in the computation of numbers; and it is admitted, that\nif the laws were to restore the rights which have been taken away, the\nnegroes could no longer be refused an equal share of representation with\nthe other inhabitants.\n\n\"This question may be placed in another light. It is agreed on all\nsides, that numbers are the best scale of wealth and taxation, as they\nare the only proper scale of representation. Would the convention have\nbeen impartial or consistent, if they had rejected the slaves from\nthe list of inhabitants, when the shares of representation were to\nbe calculated, and inserted them on the lists when the tariff of\ncontributions was to be adjusted? Could it be reasonably expected, that\nthe Southern States would concur in a system, which considered their\nslaves in some degree as men, when burdens were to be imposed, but\nrefused to consider them in the same light, when advantages were to be\nconferred? Might not some surprise also be expressed, that those who\nreproach the Southern States with the barbarous policy of considering as\nproperty a part of their human brethren, should themselves contend,\nthat the government to which all the States are to be parties, ought to\nconsider this unfortunate race more completely in the unnatural light of\nproperty, than the very laws of which they complain?\n\n\"It may be replied, perhaps, that slaves are not included in the\nestimate of representatives in any of the States possessing them. They\nneither vote themselves nor increase the votes of their masters. Upon\nwhat principle, then, ought they to be taken into the federal estimate\nof representation? In rejecting them altogether, the Constitution would,\nin this respect, have followed the very laws which have been appealed to\nas the proper guide.\n\n\"This objection is repelled by a single observation. It is a fundamental\nprinciple of the proposed Constitution, that as the aggregate number of\nrepresentatives allotted to the several States is to be determined by\na federal rule, founded on the aggregate number of inhabitants, so the\nright of choosing this allotted number in each State is to be exercised\nby such part of the inhabitants as the State itself may designate. The\nqualifications on which the right of suffrage depend are not, perhaps,\nthe same in any two States. In some of the States the difference is\nvery material. In every State, a certain proportion of inhabitants are\ndeprived of this right by the constitution of the State, who will be\nincluded in the census by which the federal Constitution apportions the\nrepresentatives. In this point of view the Southern States might\nretort the complaint, by insisting that the principle laid down by\nthe convention required that no regard should be had to the policy of\nparticular States towards their own inhabitants; and consequently, that\nthe slaves, as inhabitants, should have been admitted into the census\naccording to their full number, in like manner with other inhabitants,\nwho, by the policy of other States, are not admitted to all the rights\nof citizens. A rigorous adherence, however, to this principle, is waived\nby those who would be gainers by it. All that they ask is that equal\nmoderation be shown on the other side. Let the case of the slaves be\nconsidered, as it is in truth, a peculiar one. Let the compromising\nexpedient of the Constitution be mutually adopted, which regards them as\ninhabitants, but as debased by servitude below the equal level of free\ninhabitants, which regards the SLAVE as divested of two fifths of the\nMAN.\n\n\"After all, may not another ground be taken on which this article of the\nConstitution will admit of a still more ready defense? We have hitherto\nproceeded on the idea that representation related to persons only, and\nnot at all to property. But is it a just idea? Government is instituted\nno less for protection of the property, than of the persons, of\nindividuals. The one as well as the other, therefore, may be considered\nas represented by those who are charged with the government. Upon this\nprinciple it is, that in several of the States, and particularly in\nthe State of New York, one branch of the government is intended more\nespecially to be the guardian of property, and is accordingly elected\nby that part of the society which is most interested in this object of\ngovernment. In the federal Constitution, this policy does not prevail.\nThe rights of property are committed into the same hands with the\npersonal rights. Some attention ought, therefore, to be paid to property\nin the choice of those hands.\n\n\"For another reason, the votes allowed in the federal legislature to the\npeople of each State, ought to bear some proportion to the comparative\nwealth of the States. States have not, like individuals, an influence\nover each other, arising from superior advantages of fortune. If the\nlaw allows an opulent citizen but a single vote in the choice of his\nrepresentative, the respect and consequence which he derives from his\nfortunate situation very frequently guide the votes of others to the\nobjects of his choice; and through this imperceptible channel the\nrights of property are conveyed into the public representation. A State\npossesses no such influence over other States. It is not probable that\nthe richest State in the Confederacy will ever influence the choice of\na single representative in any other State. Nor will the representatives\nof the larger and richer States possess any other advantage in the\nfederal legislature, over the representatives of other States, than what\nmay result from their superior number alone. As far, therefore, as their\nsuperior wealth and weight may justly entitle them to any advantage, it\nought to be secured to them by a superior share of representation. The\nnew Constitution is, in this respect, materially different from the\nexisting Confederation, as well as from that of the United Netherlands,\nand other similar confederacies. In each of the latter, the efficacy\nof the federal resolutions depends on the subsequent and voluntary\nresolutions of the states composing the union. Hence the states,\nthough possessing an equal vote in the public councils, have an unequal\ninfluence, corresponding with the unequal importance of these subsequent\nand voluntary resolutions. Under the proposed Constitution, the\nfederal acts will take effect without the necessary intervention of the\nindividual States. They will depend merely on the majority of votes in\nthe federal legislature, and consequently each vote, whether proceeding\nfrom a larger or smaller State, or a State more or less wealthy or\npowerful, will have an equal weight and efficacy: in the same manner\nas the votes individually given in a State legislature, by the\nrepresentatives of unequal counties or other districts, have each a\nprecise equality of value and effect; or if there be any difference in\nthe case, it proceeds from the difference in the personal character of\nthe individual representative, rather than from any regard to the extent\nof the district from which he comes.\"\n\nSuch is the reasoning which an advocate for the Southern interests\nmight employ on this subject; and although it may appear to be a little\nstrained in some points, yet, on the whole, I must confess that it fully\nreconciles me to the scale of representation which the convention have\nestablished.\n\nIn one respect, the establishment of a common measure for representation\nand taxation will have a very salutary effect. As the accuracy of the\ncensus to be obtained by the Congress will necessarily depend, in a\nconsiderable degree on the disposition, if not on the co-operation, of\nthe States, it is of great importance that the States should feel as\nlittle bias as possible, to swell or to reduce the amount of their\nnumbers. Were their share of representation alone to be governed by this\nrule, they would have an interest in exaggerating their inhabitants.\nWere the rule to decide their share of taxation alone, a contrary\ntemptation would prevail. By extending the rule to both objects, the\nStates will have opposite interests, which will control and balance each\nother, and produce the requisite impartiality.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 55\n\nThe Total Number of the House of Representatives\n\nFor the Independent Journal. Wednesday, February 13, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE number of which the House of Representatives is to consist, forms\nanother and a very interesting point of view, under which this branch of\nthe federal legislature may be contemplated. Scarce any article, indeed,\nin the whole Constitution seems to be rendered more worthy of attention,\nby the weight of character and the apparent force of argument with which\nit has been assailed. The charges exhibited against it are, first, that\nso small a number of representatives will be an unsafe depositary of\nthe public interests; secondly, that they will not possess a proper\nknowledge of the local circumstances of their numerous constituents;\nthirdly, that they will be taken from that class of citizens which will\nsympathize least with the feelings of the mass of the people, and be\nmost likely to aim at a permanent elevation of the few on the depression\nof the many; fourthly, that defective as the number will be in the first\ninstance, it will be more and more disproportionate, by the increase\nof the people, and the obstacles which will prevent a correspondent\nincrease of the representatives.\n\nIn general it may be remarked on this subject, that no political problem\nis less susceptible of a precise solution than that which relates to the\nnumber most convenient for a representative legislature; nor is there\nany point on which the policy of the several States is more at variance,\nwhether we compare their legislative assemblies directly with each\nother, or consider the proportions which they respectively bear to the\nnumber of their constituents. Passing over the difference between the\nsmallest and largest States, as Delaware, whose most numerous branch\nconsists of twenty-one representatives, and Massachusetts, where\nit amounts to between three and four hundred, a very considerable\ndifference is observable among States nearly equal in population. The\nnumber of representatives in Pennsylvania is not more than one fifth of\nthat in the State last mentioned. New York, whose population is to that\nof South Carolina as six to five, has little more than one third of the\nnumber of representatives. As great a disparity prevails between the\nStates of Georgia and Delaware or Rhode Island. In Pennsylvania, the\nrepresentatives do not bear a greater proportion to their constituents\nthan of one for every four or five thousand. In Rhode Island, they bear\na proportion of at least one for every thousand. And according to the\nconstitution of Georgia, the proportion may be carried to one to every\nten electors; and must unavoidably far exceed the proportion in any of\nthe other States.\n\nAnother general remark to be made is, that the ratio between the\nrepresentatives and the people ought not to be the same where the latter\nare very numerous as where they are very few. Were the representatives\nin Virginia to be regulated by the standard in Rhode Island, they would,\nat this time, amount to between four and five hundred; and twenty or\nthirty years hence, to a thousand. On the other hand, the ratio of\nPennsylvania, if applied to the State of Delaware, would reduce the\nrepresentative assembly of the latter to seven or eight members. Nothing\ncan be more fallacious than to found our political calculations on\narithmetical principles. Sixty or seventy men may be more properly\ntrusted with a given degree of power than six or seven. But it does\nnot follow that six or seven hundred would be proportionably a better\ndepositary. And if we carry on the supposition to six or seven thousand,\nthe whole reasoning ought to be reversed. The truth is, that in all\ncases a certain number at least seems to be necessary to secure the\nbenefits of free consultation and discussion, and to guard against too\neasy a combination for improper purposes; as, on the other hand, the\nnumber ought at most to be kept within a certain limit, in order\nto avoid the confusion and intemperance of a multitude. In all very\nnumerous assemblies, of whatever character composed, passion never fails\nto wrest the sceptre from reason. Had every Athenian citizen been a\nSocrates, every Athenian assembly would still have been a mob.\n\nIt is necessary also to recollect here the observations which were\napplied to the case of biennial elections. For the same reason that\nthe limited powers of the Congress, and the control of the State\nlegislatures, justify less frequent elections than the public safely\nmight otherwise require, the members of the Congress need be less\nnumerous than if they possessed the whole power of legislation, and were\nunder no other than the ordinary restraints of other legislative bodies.\n\nWith these general ideas in our mind, let us weigh the objections which\nhave been stated against the number of members proposed for the House of\nRepresentatives. It is said, in the first place, that so small a number\ncannot be safely trusted with so much power.\n\nThe number of which this branch of the legislature is to consist, at the\noutset of the government, will be sixty-five. Within three years a census\nis to be taken, when the number may be augmented to one for every thirty\nthousand inhabitants; and within every successive period of ten years\nthe census is to be renewed, and augmentations may continue to be\nmade under the above limitation. It will not be thought an extravagant\nconjecture that the first census will, at the rate of one for every\nthirty thousand, raise the number of representatives to at least one\nhundred. Estimating the negroes in the proportion of three fifths, it\ncan scarcely be doubted that the population of the United States will\nby that time, if it does not already, amount to three millions. At\nthe expiration of twenty-five years, according to the computed rate of\nincrease, the number of representatives will amount to two hundred, and\nof fifty years, to four hundred. This is a number which, I presume, will\nput an end to all fears arising from the smallness of the body. I\ntake for granted here what I shall, in answering the fourth objection,\nhereafter show, that the number of representatives will be augmented\nfrom time to time in the manner provided by the Constitution. On a\ncontrary supposition, I should admit the objection to have very great\nweight indeed.\n\nThe true question to be decided then is, whether the smallness of the\nnumber, as a temporary regulation, be dangerous to the public liberty?\nWhether sixty-five members for a few years, and a hundred or two hundred\nfor a few more, be a safe depositary for a limited and well-guarded\npower of legislating for the United States? I must own that I could\nnot give a negative answer to this question, without first obliterating\nevery impression which I have received with regard to the present\ngenius of the people of America, the spirit which actuates the State\nlegislatures, and the principles which are incorporated with the\npolitical character of every class of citizens I am unable to conceive\nthat the people of America, in their present temper, or under any\ncircumstances which can speedily happen, will choose, and every second\nyear repeat the choice of, sixty-five or a hundred men who would be\ndisposed to form and pursue a scheme of tyranny or treachery. I am\nunable to conceive that the State legislatures, which must feel so many\nmotives to watch, and which possess so many means of counteracting,\nthe federal legislature, would fail either to detect or to defeat\na conspiracy of the latter against the liberties of their common\nconstituents. I am equally unable to conceive that there are at this\ntime, or can be in any short time, in the United States, any sixty-five\nor a hundred men capable of recommending themselves to the choice of the\npeople at large, who would either desire or dare, within the short space\nof two years, to betray the solemn trust committed to them. What change\nof circumstances, time, and a fuller population of our country may\nproduce, requires a prophetic spirit to declare, which makes no part of\nmy pretensions. But judging from the circumstances now before us, and\nfrom the probable state of them within a moderate period of time, I must\npronounce that the liberties of America cannot be unsafe in the number\nof hands proposed by the federal Constitution.\n\nFrom what quarter can the danger proceed? Are we afraid of foreign gold?\nIf foreign gold could so easily corrupt our federal rulers and enable\nthem to ensnare and betray their constituents, how has it happened that\nwe are at this time a free and independent nation? The Congress which\nconducted us through the Revolution was a less numerous body than their\nsuccessors will be; they were not chosen by, nor responsible to,\ntheir fellowcitizens at large; though appointed from year to year, and\nrecallable at pleasure, they were generally continued for three years,\nand prior to the ratification of the federal articles, for a still\nlonger term. They held their consultations always under the veil of\nsecrecy; they had the sole transaction of our affairs with foreign\nnations; through the whole course of the war they had the fate of their\ncountry more in their hands than it is to be hoped will ever be the case\nwith our future representatives; and from the greatness of the prize\nat stake, and the eagerness of the party which lost it, it may well\nbe supposed that the use of other means than force would not have been\nscrupled. Yet we know by happy experience that the public trust was not\nbetrayed; nor has the purity of our public councils in this particular\never suffered, even from the whispers of calumny.\n\nIs the danger apprehended from the other branches of the federal\ngovernment? But where are the means to be found by the President, or the\nSenate, or both? Their emoluments of office, it is to be presumed, will\nnot, and without a previous corruption of the House of Representatives\ncannot, more than suffice for very different purposes; their private\nfortunes, as they must all be American citizens, cannot possibly be\nsources of danger. The only means, then, which they can possess, will be\nin the dispensation of appointments. Is it here that suspicion rests\nher charge? Sometimes we are told that this fund of corruption is to be\nexhausted by the President in subduing the virtue of the Senate. Now,\nthe fidelity of the other House is to be the victim. The improbability\nof such a mercenary and perfidious combination of the several members\nof government, standing on as different foundations as republican\nprinciples will well admit, and at the same time accountable to\nthe society over which they are placed, ought alone to quiet this\napprehension. But, fortunately, the Constitution has provided a still\nfurther safeguard. The members of the Congress are rendered ineligible\nto any civil offices that may be created, or of which the emoluments may\nbe increased, during the term of their election. No offices therefore\ncan be dealt out to the existing members but such as may become vacant\nby ordinary casualties: and to suppose that these would be sufficient to\npurchase the guardians of the people, selected by the people themselves,\nis to renounce every rule by which events ought to be calculated, and\nto substitute an indiscriminate and unbounded jealousy, with which\nall reasoning must be vain. The sincere friends of liberty, who give\nthemselves up to the extravagancies of this passion, are not aware of\nthe injury they do their own cause. As there is a degree of depravity in\nmankind which requires a certain degree of circumspection and distrust,\nso there are other qualities in human nature which justify a certain\nportion of esteem and confidence. Republican government presupposes the\nexistence of these qualities in a higher degree than any other form.\nWere the pictures which have been drawn by the political jealousy of\nsome among us faithful likenesses of the human character, the\ninference would be, that there is not sufficient virtue among men for\nself-government; and that nothing less than the chains of despotism can\nrestrain them from destroying and devouring one another.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 56\n\nThe Same Subject Continued (The Total Number of the House of\nRepresentatives)\n\nFor the Independent Journal. Saturday, February 16, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE SECOND charge against the House of Representatives is, that it\nwill be too small to possess a due knowledge of the interests of its\nconstituents.\n\nAs this objection evidently proceeds from a comparison of the proposed\nnumber of representatives with the great extent of the United States,\nthe number of their inhabitants, and the diversity of their interests,\nwithout taking into view at the same time the circumstances which will\ndistinguish the Congress from other legislative bodies, the best\nanswer that can be given to it will be a brief explanation of these\npeculiarities.\n\nIt is a sound and important principle that the representative ought to\nbe acquainted with the interests and circumstances of his constituents.\nBut this principle can extend no further than to those circumstances and\ninterests to which the authority and care of the representative relate.\nAn ignorance of a variety of minute and particular objects, which do\nnot lie within the compass of legislation, is consistent with every\nattribute necessary to a due performance of the legislative trust. In\ndetermining the extent of information required in the exercise of a\nparticular authority, recourse then must be had to the objects within\nthe purview of that authority.\n\nWhat are to be the objects of federal legislation? Those which are of\nmost importance, and which seem most to require local knowledge, are\ncommerce, taxation, and the militia.\n\nA proper regulation of commerce requires much information, as has been\nelsewhere remarked; but as far as this information relates to the laws\nand local situation of each individual State, a very few representatives\nwould be very sufficient vehicles of it to the federal councils.\n\nTaxation will consist, in a great measure, of duties which will be\ninvolved in the regulation of commerce. So far the preceding remark\nis applicable to this object. As far as it may consist of internal\ncollections, a more diffusive knowledge of the circumstances of\nthe State may be necessary. But will not this also be possessed in\nsufficient degree by a very few intelligent men, diffusively elected\nwithin the State? Divide the largest State into ten or twelve districts,\nand it will be found that there will be no peculiar local interests in\neither, which will not be within the knowledge of the representative of\nthe district. Besides this source of information, the laws of the State,\nframed by representatives from every part of it, will be almost of\nthemselves a sufficient guide. In every State there have been made, and\nmust continue to be made, regulations on this subject which will, in\nmany cases, leave little more to be done by the federal legislature,\nthan to review the different laws, and reduce them in one general act.\nA skillful individual in his closet with all the local codes before him,\nmight compile a law on some subjects of taxation for the whole union,\nwithout any aid from oral information, and it may be expected that\nwhenever internal taxes may be necessary, and particularly in cases\nrequiring uniformity throughout the States, the more simple objects will\nbe preferred. To be fully sensible of the facility which will be given\nto this branch of federal legislation by the assistance of the State\ncodes, we need only suppose for a moment that this or any other State\nwere divided into a number of parts, each having and exercising within\nitself a power of local legislation. Is it not evident that a degree of\nlocal information and preparatory labor would be found in the several\nvolumes of their proceedings, which would very much shorten the labors\nof the general legislature, and render a much smaller number of members\nsufficient for it? The federal councils will derive great advantage from\nanother circumstance. The representatives of each State will not only\nbring with them a considerable knowledge of its laws, and a local\nknowledge of their respective districts, but will probably in all cases\nhave been members, and may even at the very time be members, of the\nState legislature, where all the local information and interests of the\nState are assembled, and from whence they may easily be conveyed by a\nvery few hands into the legislature of the United States.\n\n(The observations made on the subject of taxation apply with greater\nforce to the case of the militia. For however different the rules of\ndiscipline may be in different States, they are the same throughout\neach particular State; and depend on circumstances which can differ but\nlittle in different parts of the same State.)(E1)\n\n(With regard to the regulation of the militia, there are scarcely any\ncircumstances in reference to which local knowledge can be said to\nbe necessary. The general face of the country, whether mountainous or\nlevel, most fit for the operations of infantry or cavalry, is almost the\nonly consideration of this nature that can occur. The art of war teaches\ngeneral principles of organization, movement, and discipline, which\napply universally.)(E1)\n\nThe attentive reader will discern that the reasoning here used, to prove\nthe sufficiency of a moderate number of representatives, does not in any\nrespect contradict what was urged on another occasion with regard to the\nextensive information which the representatives ought to possess, and\nthe time that might be necessary for acquiring it. This information,\nso far as it may relate to local objects, is rendered necessary and\ndifficult, not by a difference of laws and local circumstances within a\nsingle State, but of those among different States. Taking each State by\nitself, its laws are the same, and its interests but little diversified.\nA few men, therefore, will possess all the knowledge requisite for a\nproper representation of them. Were the interests and affairs of each\nindividual State perfectly simple and uniform, a knowledge of them in\none part would involve a knowledge of them in every other, and the whole\nState might be competently represented by a single member taken from any\npart of it. On a comparison of the different States together, we find\na great dissimilarity in their laws, and in many other circumstances\nconnected with the objects of federal legislation, with all of which the\nfederal representatives ought to have some acquaintance. Whilst a few\nrepresentatives, therefore, from each State, may bring with them a\ndue knowledge of their own State, every representative will have much\ninformation to acquire concerning all the other States. The changes\nof time, as was formerly remarked, on the comparative situation of the\ndifferent States, will have an assimilating effect. The effect of time\non the internal affairs of the States, taken singly, will be just the\ncontrary. At present some of the States are little more than a society\nof husbandmen. Few of them have made much progress in those branches of\nindustry which give a variety and complexity to the affairs of a nation.\nThese, however, will in all of them be the fruits of a more advanced\npopulation, and will require, on the part of each State, a fuller\nrepresentation. The foresight of the convention has accordingly taken\ncare that the progress of population may be accompanied with a proper\nincrease of the representative branch of the government.\n\nThe experience of Great Britain, which presents to mankind so many\npolitical lessons, both of the monitory and exemplary kind, and\nwhich has been frequently consulted in the course of these inquiries,\ncorroborates the result of the reflections which we have just made. The\nnumber of inhabitants in the two kingdoms of England and Scotland cannot\nbe stated at less than eight millions. The representatives of these\neight millions in the House of Commons amount to five hundred and\nfifty-eight. Of this number, one ninth are elected by three hundred and\nsixty-four persons, and one half, by five thousand seven hundred and\ntwenty-three persons.(1) It cannot be supposed that the half thus\nelected, and who do not even reside among the people at large, can add\nany thing either to the security of the people against the government,\nor to the knowledge of their circumstances and interests in the\nlegislative councils. On the contrary, it is notorious, that they are\nmore frequently the representatives and instruments of the executive\nmagistrate, than the guardians and advocates of the popular rights. They\nmight therefore, with great propriety, be considered as something more\nthan a mere deduction from the real representatives of the nation. We\nwill, however, consider them in this light alone, and will not extend\nthe deduction to a considerable number of others, who do not reside\namong their constitutents, are very faintly connected with them, and\nhave very little particular knowledge of their affairs. With all these\nconcessions, two hundred and seventy-nine persons only will be the\ndepository of the safety, interest, and happiness of eight millions that\nis to say, there will be one representative only to maintain the rights\nand explain the situation of TWENTY-EIGHT THOUSAND SIX HUNDRED AND\nSEVENTY constitutents, in an assembly exposed to the whole force of\nexecutive influence, and extending its authority to every object of\nlegislation within a nation whose affairs are in the highest degree\ndiversified and complicated. Yet it is very certain, not only that\na valuable portion of freedom has been preserved under all these\ncircumstances, but that the defects in the British code are chargeable,\nin a very small proportion, on the ignorance of the legislature\nconcerning the circumstances of the people. Allowing to this case the\nweight which is due to it, and comparing it with that of the House\nof Representatives as above explained it seems to give the fullest\nassurance, that a representative for every THIRTY THOUSAND INHABITANTS\nwill render the latter both a safe and competent guardian of the\ninterests which will be confided to it.\n\nPUBLIUS\n\n1. Burgh's \"Political Disquisitions.\"\n\nE1. Two versions of this paragraph appear in different editions.\n\n\n\n\nFEDERALIST No. 57\n\nThe Alleged Tendency of the New Plan to Elevate the Few at the Expense\nof the Many Considered in Connection with Representation.\n\nFrom the New York Packet. Tuesday, February 19, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE THIRD charge against the House of Representatives is, that it will\nbe taken from that class of citizens which will have least sympathy\nwith the mass of the people, and be most likely to aim at an ambitious\nsacrifice of the many to the aggrandizement of the few.\n\nOf all the objections which have been framed against the federal\nConstitution, this is perhaps the most extraordinary. Whilst the\nobjection itself is levelled against a pretended oligarchy, the\nprinciple of it strikes at the very root of republican government.\n\nThe aim of every political constitution is, or ought to be, first to\nobtain for rulers men who possess most wisdom to discern, and most\nvirtue to pursue, the common good of the society; and in the next place,\nto take the most effectual precautions for keeping them virtuous whilst\nthey continue to hold their public trust. The elective mode of obtaining\nrulers is the characteristic policy of republican government. The means\nrelied on in this form of government for preventing their degeneracy are\nnumerous and various. The most effectual one, is such a limitation of\nthe term of appointments as will maintain a proper responsibility to the\npeople.\n\nLet me now ask what circumstance there is in the constitution of the\nHouse of Representatives that violates the principles of republican\ngovernment, or favors the elevation of the few on the ruins of the many?\nLet me ask whether every circumstance is not, on the contrary, strictly\nconformable to these principles, and scrupulously impartial to the\nrights and pretensions of every class and description of citizens?\n\nWho are to be the electors of the federal representatives? Not the rich,\nmore than the poor; not the learned, more than the ignorant; not the\nhaughty heirs of distinguished names, more than the humble sons of\nobscurity and unpropitious fortune. The electors are to be the great\nbody of the people of the United States. They are to be the same who\nexercise the right in every State of electing the corresponding branch\nof the legislature of the State.\n\nWho are to be the objects of popular choice? Every citizen whose merit\nmay recommend him to the esteem and confidence of his country. No\nqualification of wealth, of birth, of religious faith, or of civil\nprofession is permitted to fetter the judgement or disappoint the\ninclination of the people.\n\nIf we consider the situation of the men on whom the free suffrages of\ntheir fellow-citizens may confer the representative trust, we shall find\nit involving every security which can be devised or desired for their\nfidelity to their constituents.\n\nIn the first place, as they will have been distinguished by the\npreference of their fellow-citizens, we are to presume that in general\nthey will be somewhat distinguished also by those qualities which\nentitle them to it, and which promise a sincere and scrupulous regard to\nthe nature of their engagements.\n\nIn the second place, they will enter into the public service under\ncircumstances which cannot fail to produce a temporary affection at\nleast to their constituents. There is in every breast a sensibility to\nmarks of honor, of favor, of esteem, and of confidence, which, apart\nfrom all considerations of interest, is some pledge for grateful and\nbenevolent returns. Ingratitude is a common topic of declamation against\nhuman nature; and it must be confessed that instances of it are but\ntoo frequent and flagrant, both in public and in private life. But the\nuniversal and extreme indignation which it inspires is itself a proof of\nthe energy and prevalence of the contrary sentiment.\n\nIn the third place, those ties which bind the representative to his\nconstituents are strengthened by motives of a more selfish nature. His\npride and vanity attach him to a form of government which favors his\npretensions and gives him a share in its honors and distinctions.\nWhatever hopes or projects might be entertained by a few aspiring\ncharacters, it must generally happen that a great proportion of the men\nderiving their advancement from their influence with the people,\nwould have more to hope from a preservation of the favor, than from\ninnovations in the government subversive of the authority of the people.\n\nAll these securities, however, would be found very insufficient without\nthe restraint of frequent elections. Hence, in the fourth place, the\nHouse of Representatives is so constituted as to support in the members\nan habitual recollection of their dependence on the people. Before the\nsentiments impressed on their minds by the mode of their elevation\ncan be effaced by the exercise of power, they will be compelled to\nanticipate the moment when their power is to cease, when their exercise\nof it is to be reviewed, and when they must descend to the level from\nwhich they were raised; there forever to remain unless a faithful\ndischarge of their trust shall have established their title to a renewal\nof it.\n\nI will add, as a fifth circumstance in the situation of the House of\nRepresentatives, restraining them from oppressive measures, that they\ncan make no law which will not have its full operation on themselves\nand their friends, as well as on the great mass of the society. This has\nalways been deemed one of the strongest bonds by which human policy can\nconnect the rulers and the people together. It creates between them\nthat communion of interests and sympathy of sentiments, of which few\ngovernments have furnished examples; but without which every government\ndegenerates into tyranny. If it be asked, what is to restrain the\nHouse of Representatives from making legal discriminations in favor of\nthemselves and a particular class of the society? I answer: the genius\nof the whole system; the nature of just and constitutional laws; and\nabove all, the vigilant and manly spirit which actuates the people of\nAmerica--a spirit which nourishes freedom, and in return is nourished by\nit.\n\nIf this spirit shall ever be so far debased as to tolerate a law not\nobligatory on the legislature, as well as on the people, the people will\nbe prepared to tolerate any thing but liberty.\n\nSuch will be the relation between the House of Representatives and their\nconstituents. Duty, gratitude, interest, ambition itself, are the chords\nby which they will be bound to fidelity and sympathy with the great\nmass of the people. It is possible that these may all be insufficient\nto control the caprice and wickedness of man. But are they not all that\ngovernment will admit, and that human prudence can devise? Are they not\nthe genuine and the characteristic means by which republican government\nprovides for the liberty and happiness of the people? Are they not the\nidentical means on which every State government in the Union relies for\nthe attainment of these important ends? What then are we to understand\nby the objection which this paper has combated? What are we to say to\nthe men who profess the most flaming zeal for republican government,\nyet boldly impeach the fundamental principle of it; who pretend to be\nchampions for the right and the capacity of the people to choose their\nown rulers, yet maintain that they will prefer those only who will\nimmediately and infallibly betray the trust committed to them?\n\nWere the objection to be read by one who had not seen the mode\nprescribed by the Constitution for the choice of representatives, he\ncould suppose nothing less than that some unreasonable qualification\nof property was annexed to the right of suffrage; or that the right of\neligibility was limited to persons of particular families or fortunes;\nor at least that the mode prescribed by the State constitutions was in\nsome respect or other, very grossly departed from. We have seen how far\nsuch a supposition would err, as to the two first points. Nor would\nit, in fact, be less erroneous as to the last. The only difference\ndiscoverable between the two cases is, that each representative of the\nUnited States will be elected by five or six thousand citizens; whilst\nin the individual States, the election of a representative is left to\nabout as many hundreds. Will it be pretended that this difference is\nsufficient to justify an attachment to the State governments, and an\nabhorrence to the federal government? If this be the point on which the\nobjection turns, it deserves to be examined.\n\nIs it supported by REASON? This cannot be said, without maintaining\nthat five or six thousand citizens are less capable of choosing a fit\nrepresentative, or more liable to be corrupted by an unfit one, than\nfive or six hundred. Reason, on the contrary, assures us, that as in so\ngreat a number a fit representative would be most likely to be found, so\nthe choice would be less likely to be diverted from him by the intrigues\nof the ambitious or the ambitious or the bribes of the rich.\n\nIs the CONSEQUENCE from this doctrine admissible? If we say that five or\nsix hundred citizens are as many as can jointly exercise their right\nof suffrage, must we not deprive the people of the immediate choice of\ntheir public servants, in every instance where the administration of the\ngovernment does not require as many of them as will amount to one for\nthat number of citizens?\n\nIs the doctrine warranted by FACTS? It was shown in the last paper,\nthat the real representation in the British House of Commons very little\nexceeds the proportion of one for every thirty thousand inhabitants.\nBesides a variety of powerful causes not existing here, and which\nfavor in that country the pretensions of rank and wealth, no person is\neligible as a representative of a county, unless he possess real estate\nof the clear value of six hundred pounds sterling per year; nor of a\ncity or borough, unless he possess a like estate of half that annual\nvalue. To this qualification on the part of the county representatives\nis added another on the part of the county electors, which restrains\nthe right of suffrage to persons having a freehold estate of the annual\nvalue of more than twenty pounds sterling, according to the present\nrate of money. Notwithstanding these unfavorable circumstances, and\nnotwithstanding some very unequal laws in the British code, it cannot be\nsaid that the representatives of the nation have elevated the few on the\nruins of the many.\n\nBut we need not resort to foreign experience on this subject. Our own\nis explicit and decisive. The districts in New Hampshire in which the\nsenators are chosen immediately by the people, are nearly as large as\nwill be necessary for her representatives in the Congress. Those of\nMassachusetts are larger than will be necessary for that purpose;\nand those of New York still more so. In the last State the members of\nAssembly for the cities and counties of New York and Albany are elected\nby very nearly as many voters as will be entitled to a representative\nin the Congress, calculating on the number of sixty-five representatives\nonly. It makes no difference that in these senatorial districts and\ncounties a number of representatives are voted for by each elector at\nthe same time. If the same electors at the same time are capable of\nchoosing four or five representatives, they cannot be incapable of\nchoosing one. Pennsylvania is an additional example. Some of her\ncounties, which elect her State representatives, are almost as large\nas her districts will be by which her federal representatives will be\nelected. The city of Philadelphia is supposed to contain between fifty\nand sixty thousand souls. It will therefore form nearly two districts\nfor the choice of federal representatives. It forms, however, but one\ncounty, in which every elector votes for each of its representatives in\nthe State legislature. And what may appear to be still more directly\nto our purpose, the whole city actually elects a SINGLE MEMBER for the\nexecutive council. This is the case in all the other counties of the\nState.\n\nAre not these facts the most satisfactory proofs of the fallacy which\nhas been employed against the branch of the federal government under\nconsideration? Has it appeared on trial that the senators of New\nHampshire, Massachusetts, and New York, or the executive council of\nPennsylvania, or the members of the Assembly in the two last States,\nhave betrayed any peculiar disposition to sacrifice the many to the\nfew, or are in any respect less worthy of their places than the\nrepresentatives and magistrates appointed in other States by very small\ndivisions of the people?\n\nBut there are cases of a stronger complexion than any which I have yet\nquoted. One branch of the legislature of Connecticut is so constituted\nthat each member of it is elected by the whole State. So is the governor\nof that State, of Massachusetts, and of this State, and the president of\nNew Hampshire. I leave every man to decide whether the result of any\none of these experiments can be said to countenance a suspicion, that\na diffusive mode of choosing representatives of the people tends to\nelevate traitors and to undermine the public liberty.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 58\n\nObjection That The Number of Members Will Not Be Augmented as the\nProgress of Population Demands.\n\nConsidered For the Independent Journal Wednesday, February 20, 1788.\n\nMADISON\n\nTo the People of the State of New York:\n\nTHE remaining charge against the House of Representatives, which I am\nto examine, is grounded on a supposition that the number of members will\nnot be augmented from time to time, as the progress of population may\ndemand.\n\nIt has been admitted, that this objection, if well supported, would have\ngreat weight. The following observations will show that, like most other\nobjections against the Constitution, it can only proceed from a partial\nview of the subject, or from a jealousy which discolors and disfigures\nevery object which is beheld.\n\n1. Those who urge the objection seem not to have recollected that the\nfederal Constitution will not suffer by a comparison with the State\nconstitutions, in the security provided for a gradual augmentation of\nthe number of representatives. The number which is to prevail in the\nfirst instance is declared to be temporary. Its duration is limited to\nthe short term of three years.\n\nWithin every successive term of ten years a census of inhabitants is to\nbe repeated. The unequivocal objects of these regulations are, first, to\nreadjust, from time to time, the apportionment of representatives to the\nnumber of inhabitants, under the single exception that each State shall\nhave one representative at least; secondly, to augment the number of\nrepresentatives at the same periods, under the sole limitation that the\nwhole number shall not exceed one for every thirty thousand inhabitants.\nIf we review the constitutions of the several States, we shall find that\nsome of them contain no determinate regulations on this subject,\nthat others correspond pretty much on this point with the federal\nConstitution, and that the most effectual security in any of them is\nresolvable into a mere directory provision.\n\n2. As far as experience has taken place on this subject, a gradual\nincrease of representatives under the State constitutions has at least\nkept pace with that of the constituents, and it appears that the former\nhave been as ready to concur in such measures as the latter have been to\ncall for them.\n\n3. There is a peculiarity in the federal Constitution which insures\na watchful attention in a majority both of the people and of their\nrepresentatives to a constitutional augmentation of the latter. The\npeculiarity lies in this, that one branch of the legislature is a\nrepresentation of citizens, the other of the States: in the former,\nconsequently, the larger States will have most weight; in the latter,\nthe advantage will be in favor of the smaller States. From this\ncircumstance it may with certainty be inferred that the larger States\nwill be strenuous advocates for increasing the number and weight of that\npart of the legislature in which their influence predominates. And it so\nhappens that four only of the largest will have a majority of the whole\nvotes in the House of Representatives. Should the representatives or\npeople, therefore, of the smaller States oppose at any time a reasonable\naddition of members, a coalition of a very few States will be sufficient\nto overrule the opposition; a coalition which, notwithstanding the\nrivalship and local prejudices which might prevent it on ordinary\noccasions, would not fail to take place, when not merely prompted by\ncommon interest, but justified by equity and the principles of the\nConstitution.\n\nIt may be alleged, perhaps, that the Senate would be prompted by like\nmotives to an adverse coalition; and as their concurrence would be\nindispensable, the just and constitutional views of the other branch\nmight be defeated. This is the difficulty which has probably created\nthe most serious apprehensions in the jealous friends of a numerous\nrepresentation. Fortunately it is among the difficulties which, existing\nonly in appearance, vanish on a close and accurate inspection. The\nfollowing reflections will, if I mistake not, be admitted to be\nconclusive and satisfactory on this point.\n\nNotwithstanding the equal authority which will subsist between the two\nhouses on all legislative subjects, except the originating of money\nbills, it cannot be doubted that the House, composed of the greater\nnumber of members, when supported by the more powerful States, and\nspeaking the known and determined sense of a majority of the people,\nwill have no small advantage in a question depending on the comparative\nfirmness of the two houses.\n\nThis advantage must be increased by the consciousness, felt by the same\nside of being supported in its demands by right, by reason, and by the\nConstitution; and the consciousness, on the opposite side, of contending\nagainst the force of all these solemn considerations.\n\nIt is farther to be considered, that in the gradation between the\nsmallest and largest States, there are several, which, though most\nlikely in general to arrange themselves among the former are too\nlittle removed in extent and population from the latter, to second an\nopposition to their just and legitimate pretensions. Hence it is by no\nmeans certain that a majority of votes, even in the Senate, would be\nunfriendly to proper augmentations in the number of representatives.\n\nIt will not be looking too far to add, that the senators from all\nthe new States may be gained over to the just views of the House of\nRepresentatives, by an expedient too obvious to be overlooked. As these\nStates will, for a great length of time, advance in population with\npeculiar rapidity, they will be interested in frequent reapportionments\nof the representatives to the number of inhabitants. The large States,\ntherefore, who will prevail in the House of Representatives, will have\nnothing to do but to make reapportionments and augmentations mutually\nconditions of each other; and the senators from all the most growing\nStates will be bound to contend for the latter, by the interest which\ntheir States will feel in the former.\n\nThese considerations seem to afford ample security on this subject, and\nought alone to satisfy all the doubts and fears which have been\nindulged with regard to it. Admitting, however, that they should all be\ninsufficient to subdue the unjust policy of the smaller States, or their\npredominant influence in the councils of the Senate, a constitutional\nand infallible resource still remains with the larger States, by which\nthey will be able at all times to accomplish their just purposes. The\nHouse of Representatives cannot only refuse, but they alone can propose,\nthe supplies requisite for the support of government. They, in a word,\nhold the purse--that powerful instrument by which we behold, in the\nhistory of the British Constitution, an infant and humble representation\nof the people gradually enlarging the sphere of its activity and\nimportance, and finally reducing, as far as it seems to have wished, all\nthe overgrown prerogatives of the other branches of the government. This\npower over the purse may, in fact, be regarded as the most complete\nand effectual weapon with which any constitution can arm the immediate\nrepresentatives of the people, for obtaining a redress of every\ngrievance, and for carrying into effect every just and salutary measure.\n\nBut will not the House of Representatives be as much interested as the\nSenate in maintaining the government in its proper functions, and will\nthey not therefore be unwilling to stake its existence or its reputation\non the pliancy of the Senate? Or, if such a trial of firmness between\nthe two branches were hazarded, would not the one be as likely first to\nyield as the other? These questions will create no difficulty with\nthose who reflect that in all cases the smaller the number, and the more\npermanent and conspicuous the station, of men in power, the stronger\nmust be the interest which they will individually feel in whatever\nconcerns the government. Those who represent the dignity of their\ncountry in the eyes of other nations, will be particularly sensible to\nevery prospect of public danger, or of dishonorable stagnation in public\naffairs. To those causes we are to ascribe the continual triumph of\nthe British House of Commons over the other branches of the government,\nwhenever the engine of a money bill has been employed. An absolute\ninflexibility on the side of the latter, although it could not\nhave failed to involve every department of the state in the general\nconfusion, has neither been apprehended nor experienced. The utmost\ndegree of firmness that can be displayed by the federal Senate or\nPresident, will not be more than equal to a resistance in which they\nwill be supported by constitutional and patriotic principles.\n\nIn this review of the Constitution of the House of Representatives, I\nhave passed over the circumstances of economy, which, in the present\nstate of affairs, might have had some effect in lessening the temporary\nnumber of representatives, and a disregard of which would probably have\nbeen as rich a theme of declamation against the Constitution as has been\nshown by the smallness of the number proposed. I omit also any remarks\non the difficulty which might be found, under present circumstances, in\nengaging in the federal service a large number of such characters as\nthe people will probably elect. One observation, however, I must be\npermitted to add on this subject as claiming, in my judgment, a very\nserious attention. It is, that in all legislative assemblies the greater\nthe number composing them may be, the fewer will be the men who will in\nfact direct their proceedings. In the first place, the more numerous an\nassembly may be, of whatever characters composed, the greater is known\nto be the ascendency of passion over reason. In the next place, the\nlarger the number, the greater will be the proportion of members of\nlimited information and of weak capacities. Now, it is precisely on\ncharacters of this description that the eloquence and address of the few\nare known to act with all their force. In the ancient republics, where\nthe whole body of the people assembled in person, a single orator, or an\nartful statesman, was generally seen to rule with as complete a sway as\nif a sceptre had been placed in his single hand. On the same principle,\nthe more multitudinous a representative assembly may be rendered, the\nmore it will partake of the infirmities incident to collective meetings\nof the people. Ignorance will be the dupe of cunning, and passion the\nslave of sophistry and declamation. The people can never err more than\nin supposing that by multiplying their representatives beyond a certain\nlimit, they strengthen the barrier against the government of a few.\nExperience will forever admonish them that, on the contrary, AFTER\nSECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL\nINFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will\ncounteract their own views by every addition to their representatives.\nThe countenance of the government may become more democratic, but the\nsoul that animates it will be more oligarchic. The machine will be\nenlarged, but the fewer, and often the more secret, will be the springs\nby which its motions are directed.\n\nAs connected with the objection against the number of representatives,\nmay properly be here noticed, that which has been suggested against the\nnumber made competent for legislative business. It has been said that\nmore than a majority ought to have been required for a quorum; and in\nparticular cases, if not in all, more than a majority of a quorum for\na decision. That some advantages might have resulted from such a\nprecaution, cannot be denied. It might have been an additional shield to\nsome particular interests, and another obstacle generally to hasty\nand partial measures. But these considerations are outweighed by the\ninconveniences in the opposite scale. In all cases where justice or the\ngeneral good might require new laws to be passed, or active measures\nto be pursued, the fundamental principle of free government would be\nreversed. It would be no longer the majority that would rule: the power\nwould be transferred to the minority. Were the defensive privilege\nlimited to particular cases, an interested minority might take advantage\nof it to screen themselves from equitable sacrifices to the general\nweal, or, in particular emergencies, to extort unreasonable indulgences.\nLastly, it would facilitate and foster the baneful practice of\nsecessions; a practice which has shown itself even in States where a\nmajority only is required; a practice subversive of all the principles\nof order and regular government; a practice which leads more directly to\npublic convulsions, and the ruin of popular governments, than any other\nwhich has yet been displayed among us.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 59\n\nConcerning the Power of Congress to Regulate the Election of Members\n\nFrom the New York Packet. Friday, February 22, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE natural order of the subject leads us to consider, in this place,\nthat provision of the Constitution which authorizes the national\nlegislature to regulate, in the last resort, the election of its own\nmembers. It is in these words: \"The TIMES, PLACES, and MANNER of holding\nelections for senators and representatives shall be prescribed in each\nState by the legislature thereof; but the Congress may, at any time, by\nlaw, make or alter SUCH REGULATIONS, except as to the PLACES of choosing\nsenators.\"(1) This provision has not only been declaimed against\nby those who condemn the Constitution in the gross, but it has been\ncensured by those who have objected with less latitude and greater\nmoderation; and, in one instance it has been thought exceptionable by a\ngentleman who has declared himself the advocate of every other part of\nthe system.\n\nI am greatly mistaken, notwithstanding, if there be any article in the\nwhole plan more completely defensible than this. Its propriety rests\nupon the evidence of this plain proposition, that EVERY GOVERNMENT\nOUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just\nreasoner will, at first sight, approve an adherence to this rule, in\nthe work of the convention; and will disapprove every deviation from\nit which may not appear to have been dictated by the necessity of\nincorporating into the work some particular ingredient, with which a\nrigid conformity to the rule was incompatible. Even in this case, though\nhe may acquiesce in the necessity, yet he will not cease to regard and\nto regret a departure from so fundamental a principle, as a portion of\nimperfection in the system which may prove the seed of future weakness,\nand perhaps anarchy.\n\nIt will not be alleged, that an election law could have been framed and\ninserted in the Constitution, which would have been always applicable\nto every probable change in the situation of the country; and it will\ntherefore not be denied, that a discretionary power over elections ought\nto exist somewhere. It will, I presume, be as readily conceded,\nthat there were only three ways in which this power could have been\nreasonably modified and disposed: that it must either have been lodged\nwholly in the national legislature, or wholly in the State legislatures,\nor primarily in the latter and ultimately in the former. The last mode\nhas, with reason, been preferred by the convention. They have submitted\nthe regulation of elections for the federal government, in the first\ninstance, to the local administrations; which, in ordinary cases, and\nwhen no improper views prevail, may be both more convenient and more\nsatisfactory; but they have reserved to the national authority a right\nto interpose, whenever extraordinary circumstances might render that\ninterposition necessary to its safety.\n\nNothing can be more evident, than that an exclusive power of regulating\nelections for the national government, in the hands of the State\nlegislatures, would leave the existence of the Union entirely at their\nmercy. They could at any moment annihilate it, by neglecting to provide\nfor the choice of persons to administer its affairs. It is to little\npurpose to say, that a neglect or omission of this kind would not be\nlikely to take place. The constitutional possibility of the thing,\nwithout an equivalent for the risk, is an unanswerable objection. Nor\nhas any satisfactory reason been yet assigned for incurring that\nrisk. The extravagant surmises of a distempered jealousy can never be\ndignified with that character. If we are in a humor to presume abuses\nof power, it is as fair to presume them on the part of the State\ngovernments as on the part of the general government. And as it is more\nconsonant to the rules of a just theory, to trust the Union with the\ncare of its own existence, than to transfer that care to any other\nhands, if abuses of power are to be hazarded on the one side or on\nthe other, it is more rational to hazard them where the power would\nnaturally be placed, than where it would unnaturally be placed.\n\nSuppose an article had been introduced into the Constitution, empowering\nthe United States to regulate the elections for the particular States,\nwould any man have hesitated to condemn it, both as an unwarrantable\ntransposition of power, and as a premeditated engine for the destruction\nof the State governments? The violation of principle, in this case,\nwould have required no comment; and, to an unbiased observer, it will\nnot be less apparent in the project of subjecting the existence of the\nnational government, in a similar respect, to the pleasure of the State\ngovernments. An impartial view of the matter cannot fail to result in a\nconviction, that each, as far as possible, ought to depend on itself for\nits own preservation.\n\nAs an objection to this position, it may be remarked that the\nconstitution of the national Senate would involve, in its full extent,\nthe danger which it is suggested might flow from an exclusive power\nin the State legislatures to regulate the federal elections. It may be\nalleged, that by declining the appointment of Senators, they might\nat any time give a fatal blow to the Union; and from this it may be\ninferred, that as its existence would be thus rendered dependent upon\nthem in so essential a point, there can be no objection to intrusting\nthem with it in the particular case under consideration. The interest\nof each State, it may be added, to maintain its representation in the\nnational councils, would be a complete security against an abuse of the\ntrust.\n\nThis argument, though specious, will not, upon examination, be found\nsolid. It is certainly true that the State legislatures, by forbearing\nthe appointment of senators, may destroy the national government. But\nit will not follow that, because they have a power to do this in one\ninstance, they ought to have it in every other. There are cases in\nwhich the pernicious tendency of such a power may be far more decisive,\nwithout any motive equally cogent with that which must have regulated\nthe conduct of the convention in respect to the formation of the\nSenate, to recommend their admission into the system. So far as that\nconstruction may expose the Union to the possibility of injury from the\nState legislatures, it is an evil; but it is an evil which could not\nhave been avoided without excluding the States, in their political\ncapacities, wholly from a place in the organization of the national\ngovernment. If this had been done, it would doubtless have been\ninterpreted into an entire dereliction of the federal principle; and\nwould certainly have deprived the State governments of that absolute\nsafeguard which they will enjoy under this provision. But however wise\nit may have been to have submitted in this instance to an inconvenience,\nfor the attainment of a necessary advantage or a greater good, no\ninference can be drawn from thence to favor an accumulation of the evil,\nwhere no necessity urges, nor any greater good invites.\n\nIt may be easily discerned also that the national government would run\na much greater risk from a power in the State legislatures over the\nelections of its House of Representatives, than from their power of\nappointing the members of its Senate. The senators are to be chosen for\nthe period of six years; there is to be a rotation, by which the seats\nof a third part of them are to be vacated and replenished every two\nyears; and no State is to be entitled to more than two senators; a\nquorum of the body is to consist of sixteen members. The joint result\nof these circumstances would be, that a temporary combination of a few\nStates to intermit the appointment of senators, could neither annul\nthe existence nor impair the activity of the body; and it is not from\na general and permanent combination of the States that we can have any\nthing to fear. The first might proceed from sinister designs in the\nleading members of a few of the State legislatures; the last would\nsuppose a fixed and rooted disaffection in the great body of the people,\nwhich will either never exist at all, or will, in all probability,\nproceed from an experience of the inaptitude of the general government\nto the advancement of their happiness in which event no good citizen\ncould desire its continuance.\n\nBut with regard to the federal House of Representatives, there is\nintended to be a general election of members once in two years. If\nthe State legislatures were to be invested with an exclusive power\nof regulating these elections, every period of making them would be\na delicate crisis in the national situation, which might issue in a\ndissolution of the Union, if the leaders of a few of the most important\nStates should have entered into a previous conspiracy to prevent an\nelection.\n\nI shall not deny, that there is a degree of weight in the observation,\nthat the interests of each State, to be represented in the federal\ncouncils, will be a security against the abuse of a power over its\nelections in the hands of the State legislatures. But the security will\nnot be considered as complete, by those who attend to the force of an\nobvious distinction between the interest of the people in the public\nfelicity, and the interest of their local rulers in the power and\nconsequence of their offices. The people of America may be warmly\nattached to the government of the Union, at times when the particular\nrulers of particular States, stimulated by the natural rivalship of\npower, and by the hopes of personal aggrandizement, and supported by\na strong faction in each of those States, may be in a very opposite\ntemper. This diversity of sentiment between a majority of the people,\nand the individuals who have the greatest credit in their councils, is\nexemplified in some of the States at the present moment, on the present\nquestion. The scheme of separate confederacies, which will always\nmultiply the chances of ambition, will be a never failing bait to all\nsuch influential characters in the State administrations as are capable\nof preferring their own emolument and advancement to the public weal.\nWith so effectual a weapon in their hands as the exclusive power of\nregulating elections for the national government, a combination of a few\nsuch men, in a few of the most considerable States, where the temptation\nwill always be the strongest, might accomplish the destruction of the\nUnion, by seizing the opportunity of some casual dissatisfaction among\nthe people (and which perhaps they may themselves have excited),\nto discontinue the choice of members for the federal House of\nRepresentatives. It ought never to be forgotten, that a firm union\nof this country, under an efficient government, will probably be an\nincreasing object of jealousy to more than one nation of Europe; and\nthat enterprises to subvert it will sometimes originate in the intrigues\nof foreign powers, and will seldom fail to be patronized and abetted by\nsome of them. Its preservation, therefore ought in no case that can\nbe avoided, to be committed to the guardianship of any but those whose\nsituation will uniformly beget an immediate interest in the faithful and\nvigilant performance of the trust.\n\nPUBLIUS\n\n1. 1st clause, 4th section, of the 1st article.\n\n\n\n\nFEDERALIST No. 60\n\nThe Same Subject Continued (Concerning the Power of Congress to Regulate\nthe Election of Members)\n\nFrom The Independent Journal. Saturday, February 23, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nWE HAVE seen, that an uncontrollable power over the elections to the\nfederal government could not, without hazard, be committed to the State\nlegislatures. Let us now see, what would be the danger on the other\nside; that is, from confiding the ultimate right of regulating its own\nelections to the Union itself. It is not pretended, that this right\nwould ever be used for the exclusion of any State from its share in the\nrepresentation. The interest of all would, in this respect at least,\nbe the security of all. But it is alleged, that it might be employed in\nsuch a manner as to promote the election of some favorite class of\nmen in exclusion of others, by confining the places of election to\nparticular districts, and rendering it impracticable to the citizens\nat large to partake in the choice. Of all chimerical suppositions,\nthis seems to be the most chimerical. On the one hand, no rational\ncalculation of probabilities would lead us to imagine that the\ndisposition which a conduct so violent and extraordinary would imply,\ncould ever find its way into the national councils; and on the other,\nit may be concluded with certainty, that if so improper a spirit should\never gain admittance into them, it would display itself in a form\naltogether different and far more decisive.\n\nThe improbability of the attempt may be satisfactorily inferred from\nthis single reflection, that it could never be made without causing an\nimmediate revolt of the great body of the people, headed and directed\nby the State governments. It is not difficult to conceive that this\ncharacteristic right of freedom may, in certain turbulent and factious\nseasons, be violated, in respect to a particular class of citizens, by\na victorious and overbearing majority; but that so fundamental a\nprivilege, in a country so situated and enlightened, should be invaded\nto the prejudice of the great mass of the people, by the deliberate\npolicy of the government, without occasioning a popular revolution, is\naltogether inconceivable and incredible.\n\nIn addition to this general reflection, there are considerations of a\nmore precise nature, which forbid all apprehension on the subject.\nThe dissimilarity in the ingredients which will compose the national\ngovernment, and still more in the manner in which they will be brought\ninto action in its various branches, must form a powerful obstacle to a\nconcert of views in any partial scheme of elections. There is sufficient\ndiversity in the state of property, in the genius, manners, and habits\nof the people of the different parts of the Union, to occasion a\nmaterial diversity of disposition in their representatives towards\nthe different ranks and conditions in society. And though an\nintimate intercourse under the same government will promote a gradual\nassimilation in some of these respects, yet there are causes, as well\nphysical as moral, which may, in a greater or less degree, permanently\nnourish different propensities and inclinations in this respect. But the\ncircumstance which will be likely to have the greatest influence in\nthe matter, will be the dissimilar modes of constituting the several\ncomponent parts of the government. The House of Representatives being\nto be elected immediately by the people, the Senate by the State\nlegislatures, the President by electors chosen for that purpose by the\npeople, there would be little probability of a common interest to cement\nthese different branches in a predilection for any particular class of\nelectors.\n\nAs to the Senate, it is impossible that any regulation of \"time and\nmanner,\" which is all that is proposed to be submitted to the national\ngovernment in respect to that body, can affect the spirit which will\ndirect the choice of its members. The collective sense of the State\nlegislatures can never be influenced by extraneous circumstances of\nthat sort; a consideration which alone ought to satisfy us that the\ndiscrimination apprehended would never be attempted. For what inducement\ncould the Senate have to concur in a preference in which itself\nwould not be included? Or to what purpose would it be established, in\nreference to one branch of the legislature, if it could not be extended\nto the other? The composition of the one would in this case counteract\nthat of the other. And we can never suppose that it would embrace the\nappointments to the Senate, unless we can at the same time suppose the\nvoluntary co-operation of the State legislatures. If we make the latter\nsupposition, it then becomes immaterial where the power in question is\nplaced--whether in their hands or in those of the Union.\n\nBut what is to be the object of this capricious partiality in the\nnational councils? Is it to be exercised in a discrimination between\nthe different departments of industry, or between the different kinds of\nproperty, or between the different degrees of property? Will it lean in\nfavor of the landed interest, or the moneyed interest, or the mercantile\ninterest, or the manufacturing interest? Or, to speak in the fashionable\nlanguage of the adversaries to the Constitution, will it court the\nelevation of \"the wealthy and the well-born,\" to the exclusion and\ndebasement of all the rest of the society?\n\nIf this partiality is to be exerted in favor of those who are concerned\nin any particular description of industry or property, I presume it will\nreadily be admitted, that the competition for it will lie between landed\nmen and merchants. And I scruple not to affirm, that it is infinitely\nless likely that either of them should gain an ascendant in the national\ncouncils, than that the one or the other of them should predominate in\nall the local councils. The inference will be, that a conduct tending to\ngive an undue preference to either is much less to be dreaded from the\nformer than from the latter.\n\nThe several States are in various degrees addicted to agriculture and\ncommerce. In most, if not all of them, agriculture is predominant. In a\nfew of them, however, commerce nearly divides its empire, and in most\nof them has a considerable share of influence. In proportion as either\nprevails, it will be conveyed into the national representation; and for\nthe very reason, that this will be an emanation from a greater variety\nof interests, and in much more various proportions, than are to be found\nin any single State, it will be much less apt to espouse either of them\nwith a decided partiality, than the representation of any single State.\n\nIn a country consisting chiefly of the cultivators of land, where the\nrules of an equal representation obtain, the landed interest must, upon\nthe whole, preponderate in the government. As long as this interest\nprevails in most of the State legislatures, so long it must maintain a\ncorrespondent superiority in the national Senate, which will generally\nbe a faithful copy of the majorities of those assemblies. It cannot\ntherefore be presumed, that a sacrifice of the landed to the mercantile\nclass will ever be a favorite object of this branch of the federal\nlegislature. In applying thus particularly to the Senate a general\nobservation suggested by the situation of the country, I am governed by\nthe consideration, that the credulous votaries of State power cannot,\nupon their own principles, suspect, that the State legislatures would\nbe warped from their duty by any external influence. But in reality the\nsame situation must have the same effect, in the primitive composition\nat least of the federal House of Representatives: an improper bias\ntowards the mercantile class is as little to be expected from this\nquarter as from the other.\n\nIn order, perhaps, to give countenance to the objection at any rate, it\nmay be asked, is there not danger of an opposite bias in the national\ngovernment, which may dispose it to endeavor to secure a monopoly of\nthe federal administration to the landed class? As there is little\nlikelihood that the supposition of such a bias will have any terrors for\nthose who would be immediately injured by it, a labored answer to this\nquestion will be dispensed with. It will be sufficient to remark, first,\nthat for the reasons elsewhere assigned, it is less likely that any\ndecided partiality should prevail in the councils of the Union than in\nthose of any of its members. Secondly, that there would be no temptation\nto violate the Constitution in favor of the landed class, because\nthat class would, in the natural course of things, enjoy as great a\npreponderancy as itself could desire. And thirdly, that men accustomed\nto investigate the sources of public prosperity upon a large scale,\nmust be too well convinced of the utility of commerce, to be inclined\nto inflict upon it so deep a wound as would result from the entire\nexclusion of those who would best understand its interest from a share\nin the management of them. The importance of commerce, in the view of\nrevenue alone, must effectually guard it against the enmity of a body\nwhich would be continually importuned in its favor, by the urgent calls\nof public necessity.\n\nI the rather consult brevity in discussing the probability of a\npreference founded upon a discrimination between the different kinds of\nindustry and property, because, as far as I understand the meaning of\nthe objectors, they contemplate a discrimination of another kind. They\nappear to have in view, as the objects of the preference with which they\nendeavor to alarm us, those whom they designate by the description of\n\"the wealthy and the well-born.\" These, it seems, are to be exalted to\nan odious pre-eminence over the rest of their fellow-citizens. At one\ntime, however, their elevation is to be a necessary consequence of\nthe smallness of the representative body; at another time it is to\nbe effected by depriving the people at large of the opportunity of\nexercising their right of suffrage in the choice of that body.\n\nBut upon what principle is the discrimination of the places of election\nto be made, in order to answer the purpose of the meditated preference?\nAre \"the wealthy and the well-born,\" as they are called, confined to\nparticular spots in the several States? Have they, by some miraculous\ninstinct or foresight, set apart in each of them a common place of\nresidence? Are they only to be met with in the towns or cities? Or are\nthey, on the contrary, scattered over the face of the country as avarice\nor chance may have happened to cast their own lot or that of their\npredecessors? If the latter is the case, (as every intelligent man knows\nit to be,(1)) is it not evident that the policy of confining the places\nof election to particular districts would be as subversive of its own\naim as it would be exceptionable on every other account? The truth\nis, that there is no method of securing to the rich the preference\napprehended, but by prescribing qualifications of property either for\nthose who may elect or be elected. But this forms no part of the power\nto be conferred upon the national government. Its authority would be\nexpressly restricted to the regulation of the TIMES, the PLACES, the\nMANNER of elections. The qualifications of the persons who may choose\nor be chosen, as has been remarked upon other occasions, are defined and\nfixed in the Constitution, and are unalterable by the legislature.\n\nLet it, however, be admitted, for argument sake, that the expedient\nsuggested might be successful; and let it at the same time be equally\ntaken for granted that all the scruples which a sense of duty or\nan apprehension of the danger of the experiment might inspire, were\novercome in the breasts of the national rulers, still I imagine it\nwill hardly be pretended that they could ever hope to carry such an\nenterprise into execution without the aid of a military force\nsufficient to subdue the resistance of the great body of the people. The\nimprobability of the existence of a force equal to that object has been\ndiscussed and demonstrated in different parts of these papers; but that\nthe futility of the objection under consideration may appear in the\nstrongest light, it shall be conceded for a moment that such a force\nmight exist, and the national government shall be supposed to be in the\nactual possession of it. What will be the conclusion? With a disposition\nto invade the essential rights of the community, and with the means of\ngratifying that disposition, is it presumable that the persons who\nwere actuated by it would amuse themselves in the ridiculous task of\nfabricating election laws for securing a preference to a favorite class\nof men? Would they not be likely to prefer a conduct better adapted to\ntheir own immediate aggrandizement? Would they not rather boldly resolve\nto perpetuate themselves in office by one decisive act of usurpation,\nthan to trust to precarious expedients which, in spite of all\nthe precautions that might accompany them, might terminate in the\ndismission, disgrace, and ruin of their authors? Would they not fear\nthat citizens, not less tenacious than conscious of their rights, would\nflock from the remote extremes of their respective States to the places\nof election, to overthrow their tyrants, and to substitute men who would\nbe disposed to avenge the violated majesty of the people?\n\nPUBLIUS\n\n1. Particularly in the Southern States and in this State.\n\n\n\n\nFEDERALIST No. 61\n\nThe Same Subject Continued (Concerning the Power of Congress to Regulate\nthe Election of Members)\n\nFrom the New York Packet. Tuesday, February 26, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE more candid opposers of the provision respecting elections,\ncontained in the plan of the convention, when pressed in argument,\nwill sometimes concede the propriety of that provision; with this\nqualification, however, that it ought to have been accompanied with a\ndeclaration, that all elections should be had in the counties where the\nelectors resided. This, say they, was a necessary precaution against an\nabuse of the power. A declaration of this nature would certainly have\nbeen harmless; so far as it would have had the effect of quieting\napprehensions, it might not have been undesirable. But it would, in\nfact, have afforded little or no additional security against the\ndanger apprehended; and the want of it will never be considered, by\nan impartial and judicious examiner, as a serious, still less as an\ninsuperable, objection to the plan. The different views taken of the\nsubject in the two preceding papers must be sufficient to satisfy all\ndispassionate and discerning men, that if the public liberty should ever\nbe the victim of the ambition of the national rulers, the power under\nexamination, at least, will be guiltless of the sacrifice.\n\nIf those who are inclined to consult their jealousy only, would exercise\nit in a careful inspection of the several State constitutions, they\nwould find little less room for disquietude and alarm, from the latitude\nwhich most of them allow in respect to elections, than from the latitude\nwhich is proposed to be allowed to the national government in the same\nrespect. A review of their situation, in this particular, would tend\ngreatly to remove any ill impressions which may remain in regard to this\nmatter. But as that view would lead into long and tedious details, I\nshall content myself with the single example of the State in which\nI write. The constitution of New York makes no other provision for\nLOCALITY of elections, than that the members of the Assembly shall be\nelected in the COUNTIES; those of the Senate, in the great districts\ninto which the State is or may be divided: these at present are four in\nnumber, and comprehend each from two to six counties. It may readily be\nperceived that it would not be more difficult to the legislature of New\nYork to defeat the suffrages of the citizens of New York, by confining\nelections to particular places, than for the legislature of the United\nStates to defeat the suffrages of the citizens of the Union, by the like\nexpedient. Suppose, for instance, the city of Albany was to be appointed\nthe sole place of election for the county and district of which it is\na part, would not the inhabitants of that city speedily become the only\nelectors of the members both of the Senate and Assembly for that county\nand district? Can we imagine that the electors who reside in the remote\nsubdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in\nany part of the county of Montgomery, would take the trouble to come to\nthe city of Albany, to give their votes for members of the Assembly\nor Senate, sooner than they would repair to the city of New York,\nto participate in the choice of the members of the federal House of\nRepresentatives? The alarming indifference discoverable in the exercise\nof so invaluable a privilege under the existing laws, which afford\nevery facility to it, furnishes a ready answer to this question. And,\nabstracted from any experience on the subject, we can be at no loss\nto determine, that when the place of election is at an INCONVENIENT\nDISTANCE from the elector, the effect upon his conduct will be the same\nwhether that distance be twenty miles or twenty thousand miles. Hence\nit must appear, that objections to the particular modification of the\nfederal power of regulating elections will, in substance, apply with\nequal force to the modification of the like power in the constitution of\nthis State; and for this reason it will be impossible to acquit the one,\nand to condemn the other. A similar comparison would lead to the same\nconclusion in respect to the constitutions of most of the other States.\n\nIf it should be said that defects in the State constitutions furnish no\napology for those which are to be found in the plan proposed, I answer,\nthat as the former have never been thought chargeable with inattention\nto the security of liberty, where the imputations thrown on the latter\ncan be shown to be applicable to them also, the presumption is that they\nare rather the cavilling refinements of a predetermined opposition, than\nthe well-founded inferences of a candid research after truth. To\nthose who are disposed to consider, as innocent omissions in the State\nconstitutions, what they regard as unpardonable blemishes in the plan of\nthe convention, nothing can be said; or at most, they can only be asked\nto assign some substantial reason why the representatives of the people\nin a single State should be more impregnable to the lust of power, or\nother sinister motives, than the representatives of the people of the\nUnited States? If they cannot do this, they ought at least to prove\nto us that it is easier to subvert the liberties of three millions\nof people, with the advantage of local governments to head their\nopposition, than of two hundred thousand people who are destitute\nof that advantage. And in relation to the point immediately under\nconsideration, they ought to convince us that it is less probable that\na predominant faction in a single State should, in order to maintain its\nsuperiority, incline to a preference of a particular class of electors,\nthan that a similar spirit should take possession of the representatives\nof thirteen States, spread over a vast region, and in several respects\ndistinguishable from each other by a diversity of local circumstances,\nprejudices, and interests.\n\nHitherto my observations have only aimed at a vindication of the\nprovision in question, on the ground of theoretic propriety, on that of\nthe danger of placing the power elsewhere, and on that of the safety of\nplacing it in the manner proposed. But there remains to be mentioned a\npositive advantage which will result from this disposition, and which\ncould not as well have been obtained from any other: I allude to the\ncircumstance of uniformity in the time of elections for the federal\nHouse of Representatives. It is more than possible that this uniformity\nmay be found by experience to be of great importance to the public\nwelfare, both as a security against the perpetuation of the same spirit\nin the body, and as a cure for the diseases of faction. If each State\nmay choose its own time of election, it is possible there may be at\nleast as many different periods as there are months in the year. The\ntimes of election in the several States, as they are now established for\nlocal purposes, vary between extremes as wide as March and November. The\nconsequence of this diversity would be that there could never happen a\ntotal dissolution or renovation of the body at one time. If an improper\nspirit of any kind should happen to prevail in it, that spirit would\nbe apt to infuse itself into the new members, as they come forward\nin succession. The mass would be likely to remain nearly the same,\nassimilating constantly to itself its gradual accretions. There is a\ncontagion in example which few men have sufficient force of mind to\nresist. I am inclined to think that treble the duration in office, with\nthe condition of a total dissolution of the body at the same time, might\nbe less formidable to liberty than one third of that duration subject to\ngradual and successive alterations.\n\nUniformity in the time of elections seems not less requisite for\nexecuting the idea of a regular rotation in the Senate, and for\nconveniently assembling the legislature at a stated period in each year.\n\nIt may be asked, Why, then, could not a time have been fixed in the\nConstitution? As the most zealous adversaries of the plan of the\nconvention in this State are, in general, not less zealous admirers of\nthe constitution of the State, the question may be retorted, and it\nmay be asked, Why was not a time for the like purpose fixed in the\nconstitution of this State? No better answer can be given than that it\nwas a matter which might safely be entrusted to legislative discretion;\nand that if a time had been appointed, it might, upon experiment, have\nbeen found less convenient than some other time. The same answer may be\ngiven to the question put on the other side. And it may be added that\nthe supposed danger of a gradual change being merely speculative, it\nwould have been hardly advisable upon that speculation to establish,\nas a fundamental point, what would deprive several States of the\nconvenience of having the elections for their own governments and for\nthe national government at the same epochs.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 62\n\nThe Senate\n\nFor the Independent Journal. Wednesday, February 27, 1788\n\nMADISON\n\nTo the People of the State of New York:\n\nHAVING examined the constitution of the House of Representatives, and\nanswered such of the objections against it as seemed to merit notice, I\nenter next on the examination of the Senate. The heads into which this\nmember of the government may be considered are: I. The qualification of\nsenators; II. The appointment of them by the State legislatures;\nIII. The equality of representation in the Senate; IV. The number of\nsenators, and the term for which they are to be elected; V. The powers\nvested in the Senate.\n\nI. The qualifications proposed for senators, as distinguished from those\nof representatives, consist in a more advanced age and a longer period\nof citizenship. A senator must be thirty years of age at least; as a\nrepresentative must be twenty-five. And the former must have been a\ncitizen nine years; as seven years are required for the latter. The\npropriety of these distinctions is explained by the nature of the\nsenatorial trust, which, requiring greater extent of information and\nstability of character, requires at the same time that the senator should\nhave reached a period of life most likely to supply these advantages;\nand which, participating immediately in transactions with foreign\nnations, ought to be exercised by none who are not thoroughly weaned\nfrom the prepossessions and habits incident to foreign birth and\neducation. The term of nine years appears to be a prudent mediocrity\nbetween a total exclusion of adopted citizens, whose merits and talents\nmay claim a share in the public confidence, and an indiscriminate\nand hasty admission of them, which might create a channel for foreign\ninfluence on the national councils.\n\nII. It is equally unnecessary to dilate on the appointment of senators\nby the State legislatures. Among the various modes which might have been\ndevised for constituting this branch of the government, that which has\nbeen proposed by the convention is probably the most congenial with the\npublic opinion. It is recommended by the double advantage of favoring\na select appointment, and of giving to the State governments such an\nagency in the formation of the federal government as must secure the\nauthority of the former, and may form a convenient link between the two\nsystems.\n\nIII. The equality of representation in the Senate is another point,\nwhich, being evidently the result of compromise between the opposite\npretensions of the large and the small States, does not call for much\ndiscussion. If indeed it be right, that among a people thoroughly\nincorporated into one nation, every district ought to have a\nPROPORTIONAL share in the government, and that among independent and\nsovereign States, bound together by a simple league, the parties,\nhowever unequal in size, ought to have an EQUAL share in the common\ncouncils, it does not appear to be without some reason that in a\ncompound republic, partaking both of the national and federal character,\nthe government ought to be founded on a mixture of the principles of\nproportional and equal representation. But it is superfluous to try, by\nthe standard of theory, a part of the Constitution which is allowed on\nall hands to be the result, not of theory, but \"of a spirit of amity,\nand that mutual deference and concession which the peculiarity of our\npolitical situation rendered indispensable.\" A common government, with\npowers equal to its objects, is called for by the voice, and still more\nloudly by the political situation, of America. A government founded on\nprinciples more consonant to the wishes of the larger States, is not\nlikely to be obtained from the smaller States. The only option, then,\nfor the former, lies between the proposed government and a government\nstill more objectionable. Under this alternative, the advice of\nprudence must be to embrace the lesser evil; and, instead of indulging\na fruitless anticipation of the possible mischiefs which may ensue, to\ncontemplate rather the advantageous consequences which may qualify the\nsacrifice.\n\nIn this spirit it may be remarked, that the equal vote allowed to\neach State is at once a constitutional recognition of the portion of\nsovereignty remaining in the individual States, and an instrument for\npreserving that residuary sovereignty. So far the equality ought to be\nno less acceptable to the large than to the small States; since they are\nnot less solicitous to guard, by every possible expedient, against an\nimproper consolidation of the States into one simple republic.\n\nAnother advantage accruing from this ingredient in the constitution of\nthe Senate is, the additional impediment it must prove against improper\nacts of legislation. No law or resolution can now be passed without the\nconcurrence, first, of a majority of the people, and then, of a majority\nof the States. It must be acknowledged that this complicated check on\nlegislation may in some instances be injurious as well as beneficial;\nand that the peculiar defense which it involves in favor of the smaller\nStates, would be more rational, if any interests common to them, and\ndistinct from those of the other States, would otherwise be exposed to\npeculiar danger. But as the larger States will always be able, by\ntheir power over the supplies, to defeat unreasonable exertions of\nthis prerogative of the lesser States, and as the faculty and excess\nof law-making seem to be the diseases to which our governments are most\nliable, it is not impossible that this part of the Constitution may be\nmore convenient in practice than it appears to many in contemplation.\n\nIV. The number of senators, and the duration of their appointment, come\nnext to be considered. In order to form an accurate judgment on both of\nthese points, it will be proper to inquire into the purposes which are\nto be answered by a senate; and in order to ascertain these, it will be\nnecessary to review the inconveniences which a republic must suffer from\nthe want of such an institution.\n\nFirst. It is a misfortune incident to republican government, though in a\nless degree than to other governments, that those who administer it may\nforget their obligations to their constituents, and prove unfaithful\nto their important trust. In this point of view, a senate, as a second\nbranch of the legislative assembly, distinct from, and dividing the\npower with, a first, must be in all cases a salutary check on the\ngovernment. It doubles the security to the people, by requiring the\nconcurrence of two distinct bodies in schemes of usurpation or perfidy,\nwhere the ambition or corruption of one would otherwise be sufficient.\nThis is a precaution founded on such clear principles, and now so well\nunderstood in the United States, that it would be more than superfluous\nto enlarge on it. I will barely remark, that as the improbability of\nsinister combinations will be in proportion to the dissimilarity in the\ngenius of the two bodies, it must be politic to distinguish them from\neach other by every circumstance which will consist with a due harmony\nin all proper measures, and with the genuine principles of republican\ngovernment.\n\nSecond. The necessity of a senate is not less indicated by the\npropensity of all single and numerous assemblies to yield to the impulse\nof sudden and violent passions, and to be seduced by factious leaders\ninto intemperate and pernicious resolutions. Examples on this subject\nmight be cited without number; and from proceedings within the United\nStates, as well as from the history of other nations. But a position\nthat will not be contradicted, need not be proved. All that need be\nremarked is, that a body which is to correct this infirmity ought itself\nto be free from it, and consequently ought to be less numerous. It\nought, moreover, to possess great firmness, and consequently ought to\nhold its authority by a tenure of considerable duration.\n\nThird. Another defect to be supplied by a senate lies in a want of due\nacquaintance with the objects and principles of legislation. It is not\npossible that an assembly of men called for the most part from pursuits\nof a private nature, continued in appointment for a short time, and led\nby no permanent motive to devote the intervals of public occupation to a\nstudy of the laws, the affairs, and the comprehensive interests of\ntheir country, should, if left wholly to themselves, escape a variety of\nimportant errors in the exercise of their legislative trust. It may\nbe affirmed, on the best grounds, that no small share of the present\nembarrassments of America is to be charged on the blunders of our\ngovernments; and that these have proceeded from the heads rather than\nthe hearts of most of the authors of them. What indeed are all the\nrepealing, explaining, and amending laws, which fill and disgrace our\nvoluminous codes, but so many monuments of deficient wisdom; so many\nimpeachments exhibited by each succeeding against each preceding\nsession; so many admonitions to the people, of the value of those aids\nwhich may be expected from a well-constituted senate?\n\nA good government implies two things: first, fidelity to the object of\ngovernment, which is the happiness of the people; secondly, a knowledge\nof the means by which that object can be best attained. Some governments\nare deficient in both these qualities; most governments are deficient\nin the first. I scruple not to assert, that in American governments too\nlittle attention has been paid to the last. The federal Constitution\navoids this error; and what merits particular notice, it provides for\nthe last in a mode which increases the security for the first.\n\nFourth. The mutability in the public councils arising from a rapid\nsuccession of new members, however qualified they may be, points out,\nin the strongest manner, the necessity of some stable institution in the\ngovernment. Every new election in the States is found to change one half\nof the representatives. From this change of men must proceed a change\nof opinions; and from a change of opinions, a change of measures. But a\ncontinual change even of good measures is inconsistent with every rule\nof prudence and every prospect of success. The remark is verified in\nprivate life, and becomes more just, as well as more important, in\nnational transactions.\n\nTo trace the mischievous effects of a mutable government would fill a\nvolume. I will hint a few only, each of which will be perceived to be a\nsource of innumerable others.\n\nIn the first place, it forfeits the respect and confidence of other\nnations, and all the advantages connected with national character. An\nindividual who is observed to be inconstant to his plans, or perhaps to\ncarry on his affairs without any plan at all, is marked at once, by all\nprudent people, as a speedy victim to his own unsteadiness and folly.\nHis more friendly neighbors may pity him, but all will decline\nto connect their fortunes with his; and not a few will seize the\nopportunity of making their fortunes out of his. One nation is to\nanother what one individual is to another; with this melancholy\ndistinction perhaps, that the former, with fewer of the benevolent\nemotions than the latter, are under fewer restraints also from taking\nundue advantage from the indiscretions of each other. Every nation,\nconsequently, whose affairs betray a want of wisdom and stability, may\ncalculate on every loss which can be sustained from the more systematic\npolicy of their wiser neighbors. But the best instruction on this\nsubject is unhappily conveyed to America by the example of her own\nsituation. She finds that she is held in no respect by her friends;\nthat she is the derision of her enemies; and that she is a prey to every\nnation which has an interest in speculating on her fluctuating councils\nand embarrassed affairs.\n\nThe internal effects of a mutable policy are still more calamitous. It\npoisons the blessing of liberty itself. It will be of little avail to\nthe people, that the laws are made by men of their own choice, if the\nlaws be so voluminous that they cannot be read, or so incoherent that\nthey cannot be understood; if they be repealed or revised before they\nare promulgated, or undergo such incessant changes that no man, who\nknows what the law is to-day, can guess what it will be to-morrow. Law\nis defined to be a rule of action; but how can that be a rule, which is\nlittle known, and less fixed?\n\nAnother effect of public instability is the unreasonable advantage it\ngives to the sagacious, the enterprising, and the moneyed few over\nthe industrious and uninformed mass of the people. Every new regulation\nconcerning commerce or revenue, or in any way affecting the value of the\ndifferent species of property, presents a new harvest to those who watch\nthe change, and can trace its consequences; a harvest, reared not\nby themselves, but by the toils and cares of the great body of their\nfellow-citizens. This is a state of things in which it may be said with\nsome truth that laws are made for the FEW, not for the MANY.\n\nIn another point of view, great injury results from an unstable\ngovernment. The want of confidence in the public councils damps every\nuseful undertaking, the success and profit of which may depend on a\ncontinuance of existing arrangements. What prudent merchant will hazard\nhis fortunes in any new branch of commerce when he knows not but that\nhis plans may be rendered unlawful before they can be executed? What\nfarmer or manufacturer will lay himself out for the encouragement given\nto any particular cultivation or establishment, when he can have no\nassurance that his preparatory labors and advances will not render him\na victim to an inconstant government? In a word, no great improvement\nor laudable enterprise can go forward which requires the auspices of a\nsteady system of national policy.\n\nBut the most deplorable effect of all is that diminution of attachment\nand reverence which steals into the hearts of the people, towards\na political system which betrays so many marks of infirmity, and\ndisappoints so many of their flattering hopes. No government, any\nmore than an individual, will long be respected without being truly\nrespectable; nor be truly respectable, without possessing a certain\nportion of order and stability.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 63\n\nThe Senate Continued\n\nFor the Independent Journal. Saturday, March 1, 1788\n\nMADISON\n\nTo the People of the State of New York:\n\nA FIFTH desideratum, illustrating the utility of a senate, is the want\nof a due sense of national character. Without a select and stable\nmember of the government, the esteem of foreign powers will not only be\nforfeited by an unenlightened and variable policy, proceeding from the\ncauses already mentioned, but the national councils will not possess\nthat sensibility to the opinion of the world, which is perhaps not\nless necessary in order to merit, than it is to obtain, its respect and\nconfidence.\n\nAn attention to the judgment of other nations is important to every\ngovernment for two reasons: the one is, that, independently of the\nmerits of any particular plan or measure, it is desirable, on various\naccounts, that it should appear to other nations as the offspring of\na wise and honorable policy; the second is, that in doubtful cases,\nparticularly where the national councils may be warped by some strong\npassion or momentary interest, the presumed or known opinion of the\nimpartial world may be the best guide that can be followed. What has not\nAmerica lost by her want of character with foreign nations; and how\nmany errors and follies would she not have avoided, if the justice and\npropriety of her measures had, in every instance, been previously tried\nby the light in which they would probably appear to the unbiased part of\nmankind?\n\nYet however requisite a sense of national character may be, it is\nevident that it can never be sufficiently possessed by a numerous\nand changeable body. It can only be found in a number so small that a\nsensible degree of the praise and blame of public measures may be the\nportion of each individual; or in an assembly so durably invested with\npublic trust, that the pride and consequence of its members may\nbe sensibly incorporated with the reputation and prosperity of the\ncommunity. The half-yearly representatives of Rhode Island would\nprobably have been little affected in their deliberations on the\niniquitous measures of that State, by arguments drawn from the light in\nwhich such measures would be viewed by foreign nations, or even by the\nsister States; whilst it can scarcely be doubted that if the concurrence\nof a select and stable body had been necessary, a regard to national\ncharacter alone would have prevented the calamities under which that\nmisguided people is now laboring.\n\nI add, as a SIXTH defect the want, in some important cases, of a due\nresponsibility in the government to the people, arising from\nthat frequency of elections which in other cases produces this\nresponsibility. This remark will, perhaps, appear not only new, but\nparadoxical. It must nevertheless be acknowledged, when explained, to be\nas undeniable as it is important.\n\nResponsibility, in order to be reasonable, must be limited to objects\nwithin the power of the responsible party, and in order to be effectual,\nmust relate to operations of that power, of which a ready and proper\njudgment can be formed by the constituents. The objects of government\nmay be divided into two general classes: the one depending on measures\nwhich have singly an immediate and sensible operation; the other\ndepending on a succession of well-chosen and well-connected measures,\nwhich have a gradual and perhaps unobserved operation. The importance of\nthe latter description to the collective and permanent welfare of every\ncountry, needs no explanation. And yet it is evident that an assembly\nelected for so short a term as to be unable to provide more than one\nor two links in a chain of measures, on which the general welfare may\nessentially depend, ought not to be answerable for the final result,\nany more than a steward or tenant, engaged for one year, could be\njustly made to answer for places or improvements which could not be\naccomplished in less than half a dozen years. Nor is it possible for the\npeople to estimate the SHARE of influence which their annual assemblies\nmay respectively have on events resulting from the mixed transactions\nof several years. It is sufficiently difficult to preserve a personal\nresponsibility in the members of a NUMEROUS body, for such acts of\nthe body as have an immediate, detached, and palpable operation on its\nconstituents.\n\nThe proper remedy for this defect must be an additional body in the\nlegislative department, which, having sufficient permanency to provide\nfor such objects as require a continued attention, and a train of\nmeasures, may be justly and effectually answerable for the attainment of\nthose objects.\n\nThus far I have considered the circumstances which point out the\nnecessity of a well-constructed Senate only as they relate to the\nrepresentatives of the people. To a people as little blinded by\nprejudice or corrupted by flattery as those whom I address, I shall not\nscruple to add, that such an institution may be sometimes necessary as a\ndefense to the people against their own temporary errors and delusions.\nAs the cool and deliberate sense of the community ought, in all\ngovernments, and actually will, in all free governments, ultimately\nprevail over the views of its rulers; so there are particular moments in\npublic affairs when the people, stimulated by some irregular passion,\nor some illicit advantage, or misled by the artful misrepresentations\nof interested men, may call for measures which they themselves will\nafterwards be the most ready to lament and condemn. In these critical\nmoments, how salutary will be the interference of some temperate and\nrespectable body of citizens, in order to check the misguided career,\nand to suspend the blow meditated by the people against themselves,\nuntil reason, justice, and truth can regain their authority over the\npublic mind? What bitter anguish would not the people of Athens have\noften escaped if their government had contained so provident a safeguard\nagainst the tyranny of their own passions? Popular liberty might then\nhave escaped the indelible reproach of decreeing to the same citizens\nthe hemlock on one day and statues on the next.\n\nIt may be suggested, that a people spread over an extensive region\ncannot, like the crowded inhabitants of a small district, be subject\nto the infection of violent passions, or to the danger of combining\nin pursuit of unjust measures. I am far from denying that this is a\ndistinction of peculiar importance. I have, on the contrary,\nendeavored in a former paper to show, that it is one of the principal\nrecommendations of a confederated republic. At the same time, this\nadvantage ought not to be considered as superseding the use of auxiliary\nprecautions. It may even be remarked, that the same extended situation,\nwhich will exempt the people of America from some of the dangers\nincident to lesser republics, will expose them to the inconveniency\nof remaining for a longer time under the influence of those\nmisrepresentations which the combined industry of interested men may\nsucceed in distributing among them.\n\nIt adds no small weight to all these considerations, to recollect that\nhistory informs us of no long-lived republic which had not a senate.\nSparta, Rome, and Carthage are, in fact, the only states to whom that\ncharacter can be applied. In each of the two first there was a senate\nfor life. The constitution of the senate in the last is less known.\nCircumstantial evidence makes it probable that it was not different in\nthis particular from the two others. It is at least certain, that it\nhad some quality or other which rendered it an anchor against popular\nfluctuations; and that a smaller council, drawn out of the senate,\nwas appointed not only for life, but filled up vacancies itself. These\nexamples, though as unfit for the imitation, as they are repugnant to\nthe genius, of America, are, notwithstanding, when compared with the\nfugitive and turbulent existence of other ancient republics, very\ninstructive proofs of the necessity of some institution that will blend\nstability with liberty. I am not unaware of the circumstances which\ndistinguish the American from other popular governments, as well\nancient as modern; and which render extreme circumspection necessary, in\nreasoning from the one case to the other. But after allowing due weight\nto this consideration, it may still be maintained, that there are many\npoints of similitude which render these examples not unworthy of our\nattention. Many of the defects, as we have seen, which can only be\nsupplied by a senatorial institution, are common to a numerous assembly\nfrequently elected by the people, and to the people themselves. There\nare others peculiar to the former, which require the control of such an\ninstitution. The people can never wilfully betray their own interests;\nbut they may possibly be betrayed by the representatives of the people;\nand the danger will be evidently greater where the whole legislative\ntrust is lodged in the hands of one body of men, than where the\nconcurrence of separate and dissimilar bodies is required in every\npublic act.\n\nThe difference most relied on, between the American and other republics,\nconsists in the principle of representation; which is the pivot on\nwhich the former move, and which is supposed to have been unknown to the\nlatter, or at least to the ancient part of them. The use which has been\nmade of this difference, in reasonings contained in former papers,\nwill have shown that I am disposed neither to deny its existence nor\nto undervalue its importance. I feel the less restraint, therefore, in\nobserving, that the position concerning the ignorance of the ancient\ngovernments on the subject of representation, is by no means precisely\ntrue in the latitude commonly given to it. Without entering into a\ndisquisition which here would be misplaced, I will refer to a few known\nfacts, in support of what I advance.\n\nIn the most pure democracies of Greece, many of the executive functions\nwere performed, not by the people themselves, but by officers elected by\nthe people, and REPRESENTING the people in their EXECUTIVE capacity.\n\nPrior to the reform of Solon, Athens was governed by nine Archons,\nannually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated\nto them seems to be left in great obscurity. Subsequent to that period,\nwe find an assembly, first of four, and afterwards of six hundred\nmembers, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them\nin their LEGISLATIVE capacity, since they were not only associated with\nthe people in the function of making laws, but had the exclusive right\nof originating legislative propositions to the people. The senate of\nCarthage, also, whatever might be its power, or the duration of its\nappointment, appears to have been ELECTIVE by the suffrages of the\npeople. Similar instances might be traced in most, if not all the\npopular governments of antiquity.\n\nLastly, in Sparta we meet with the Ephori, and in Rome with the\nTribunes; two bodies, small indeed in numbers, but annually ELECTED BY\nTHE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of\nthe people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete\nwere also annually ELECTED BY THE PEOPLE, and have been considered by\nsome authors as an institution analogous to those of Sparta and Rome,\nwith this difference only, that in the election of that representative\nbody the right of suffrage was communicated to a part only of the\npeople.\n\nFrom these facts, to which many others might be added, it is clear that\nthe principle of representation was neither unknown to the ancients nor\nwholly overlooked in their political constitutions. The true distinction\nbetween these and the American governments, lies IN THE TOTAL EXCLUSION\nOF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the\nLATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE\nPEOPLE from the administration of the FORMER. The distinction,\nhowever, thus qualified, must be admitted to leave a most advantageous\nsuperiority in favor of the United States. But to insure to this\nadvantage its full effect, we must be careful not to separate it\nfrom the other advantage, of an extensive territory. For it cannot\nbe believed, that any form of representative government could have\nsucceeded within the narrow limits occupied by the democracies of\nGreece.\n\nIn answer to all these arguments, suggested by reason, illustrated by\nexamples, and enforced by our own experience, the jealous adversary of\nthe Constitution will probably content himself with repeating, that a\nsenate appointed not immediately by the people, and for the term of\nsix years, must gradually acquire a dangerous pre-eminence in the\ngovernment, and finally transform it into a tyrannical aristocracy.\n\nTo this general answer, the general reply ought to be sufficient, that\nliberty may be endangered by the abuses of liberty as well as by the\nabuses of power; that there are numerous instances of the former as\nwell as of the latter; and that the former, rather than the latter,\nare apparently most to be apprehended by the United States. But a more\nparticular reply may be given.\n\nBefore such a revolution can be effected, the Senate, it is to be\nobserved, must in the first place corrupt itself; must next corrupt the\nState legislatures; must then corrupt the House of Representatives; and\nmust finally corrupt the people at large. It is evident that the Senate\nmust be first corrupted before it can attempt an establishment of\ntyranny. Without corrupting the State legislatures, it cannot prosecute\nthe attempt, because the periodical change of members would otherwise\nregenerate the whole body. Without exerting the means of corruption with\nequal success on the House of Representatives, the opposition of that\ncoequal branch of the government would inevitably defeat the attempt;\nand without corrupting the people themselves, a succession of new\nrepresentatives would speedily restore all things to their pristine\norder. Is there any man who can seriously persuade himself that the\nproposed Senate can, by any possible means within the compass of human\naddress, arrive at the object of a lawless ambition, through all these\nobstructions?\n\nIf reason condemns the suspicion, the same sentence is pronounced by\nexperience. The constitution of Maryland furnishes the most apposite\nexample. The Senate of that State is elected, as the federal Senate will\nbe, indirectly by the people, and for a term less by one year only\nthan the federal Senate. It is distinguished, also, by the remarkable\nprerogative of filling up its own vacancies within the term of its\nappointment, and, at the same time, is not under the control of any such\nrotation as is provided for the federal Senate. There are some other\nlesser distinctions, which would expose the former to colorable\nobjections, that do not lie against the latter. If the federal Senate,\ntherefore, really contained the danger which has been so loudly\nproclaimed, some symptoms at least of a like danger ought by this time\nto have been betrayed by the Senate of Maryland, but no such symptoms\nhave appeared. On the contrary, the jealousies at first entertained\nby men of the same description with those who view with terror the\ncorrespondent part of the federal Constitution, have been gradually\nextinguished by the progress of the experiment; and the Maryland\nconstitution is daily deriving, from the salutary operation of this part\nof it, a reputation in which it will probably not be rivalled by that of\nany State in the Union.\n\nBut if anything could silence the jealousies on this subject, it ought\nto be the British example. The Senate there instead of being elected for\na term of six years, and of being unconfined to particular families\nor fortunes, is an hereditary assembly of opulent nobles. The House\nof Representatives, instead of being elected for two years, and by the\nwhole body of the people, is elected for seven years, and, in very\ngreat proportion, by a very small proportion of the people. Here,\nunquestionably, ought to be seen in full display the aristocratic\nusurpations and tyranny which are at some future period to be\nexemplified in the United States. Unfortunately, however, for the\nanti-federal argument, the British history informs us that this\nhereditary assembly has not been able to defend itself against the\ncontinual encroachments of the House of Representatives; and that it no\nsooner lost the support of the monarch, than it was actually crushed by\nthe weight of the popular branch.\n\nAs far as antiquity can instruct us on this subject, its examples\nsupport the reasoning which we have employed. In Sparta, the Ephori, the\nannual representatives of the people, were found an overmatch for the\nsenate for life, continually gained on its authority and finally drew\nall power into their own hands. The Tribunes of Rome, who were the\nrepresentatives of the people, prevailed, it is well known, in almost\nevery contest with the senate for life, and in the end gained the most\ncomplete triumph over it. The fact is the more remarkable, as unanimity\nwas required in every act of the Tribunes, even after their number was\naugmented to ten. It proves the irresistible force possessed by that\nbranch of a free government, which has the people on its side. To these\nexamples might be added that of Carthage, whose senate, according to\nthe testimony of Polybius, instead of drawing all power into its vortex,\nhad, at the commencement of the second Punic War, lost almost the whole\nof its original portion.\n\nBesides the conclusive evidence resulting from this assemblage of facts,\nthat the federal Senate will never be able to transform itself, by\ngradual usurpations, into an independent and aristocratic body, we are\nwarranted in believing, that if such a revolution should ever happen\nfrom causes which the foresight of man cannot guard against, the House\nof Representatives, with the people on their side, will at all times\nbe able to bring back the Constitution to its primitive form and\nprinciples. Against the force of the immediate representatives of\nthe people, nothing will be able to maintain even the constitutional\nauthority of the Senate, but such a display of enlightened policy, and\nattachment to the public good, as will divide with that branch of the\nlegislature the affections and support of the entire body of the people\nthemselves.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 64\n\nThe Powers of the Senate\n\nFrom The Independent Journal. Wednesday, March 5, 1788.\n\nJAY\n\nTo the People of the State of New York:\n\nIT IS a just and not a new observation, that enemies to particular\npersons, and opponents to particular measures, seldom confine their\ncensures to such things only in either as are worthy of blame. Unless on\nthis principle, it is difficult to explain the motives of their conduct,\nwho condemn the proposed Constitution in the aggregate, and treat with\nseverity some of the most unexceptionable articles in it.\n\nThe second section gives power to the President, \"BY AND WITH THE ADVICE\nAND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE\nSENATORS PRESENT CONCUR.\"\n\nThe power of making treaties is an important one, especially as it\nrelates to war, peace, and commerce; and it should not be delegated but\nin such a mode, and with such precautions, as will afford the highest\nsecurity that it will be exercised by men the best qualified for the\npurpose, and in the manner most conducive to the public good. The\nconvention appears to have been attentive to both these points: they\nhave directed the President to be chosen by select bodies of electors,\nto be deputed by the people for that express purpose; and they have\ncommitted the appointment of senators to the State legislatures. This\nmode has, in such cases, vastly the advantage of elections by the people\nin their collective capacity, where the activity of party zeal, taking\nthe advantage of the supineness, the ignorance, and the hopes and fears\nof the unwary and interested, often places men in office by the votes of\na small proportion of the electors.\n\nAs the select assemblies for choosing the President, as well as the\nState legislatures who appoint the senators, will in general be composed\nof the most enlightened and respectable citizens, there is reason to\npresume that their attention and their votes will be directed to those\nmen only who have become the most distinguished by their abilities and\nvirtue, and in whom the people perceive just grounds for confidence.\nThe Constitution manifests very particular attention to this object. By\nexcluding men under thirty-five from the first office, and those under\nthirty from the second, it confines the electors to men of whom the\npeople have had time to form a judgment, and with respect to whom they\nwill not be liable to be deceived by those brilliant appearances of\ngenius and patriotism, which, like transient meteors, sometimes mislead\nas well as dazzle. If the observation be well founded, that wise kings\nwill always be served by able ministers, it is fair to argue, that as an\nassembly of select electors possess, in a greater degree than kings,\nthe means of extensive and accurate information relative to men and\ncharacters, so will their appointments bear at least equal marks of\ndiscretion and discernment. The inference which naturally results from\nthese considerations is this, that the President and senators so chosen\nwill always be of the number of those who best understand our national\ninterests, whether considered in relation to the several States or to\nforeign nations, who are best able to promote those interests, and whose\nreputation for integrity inspires and merits confidence. With such men\nthe power of making treaties may be safely lodged.\n\nAlthough the absolute necessity of system, in the conduct of any\nbusiness, is universally known and acknowledged, yet the high importance\nof it in national affairs has not yet become sufficiently impressed on\nthe public mind. They who wish to commit the power under consideration\nto a popular assembly, composed of members constantly coming and\ngoing in quick succession, seem not to recollect that such a body must\nnecessarily be inadequate to the attainment of those great objects,\nwhich require to be steadily contemplated in all their relations and\ncircumstances, and which can only be approached and achieved by measures\nwhich not only talents, but also exact information, and often much time,\nare necessary to concert and to execute. It was wise, therefore, in the\nconvention to provide, not only that the power of making treaties should\nbe committed to able and honest men, but also that they should continue\nin place a sufficient time to become perfectly acquainted with our\nnational concerns, and to form and introduce a a system for the\nmanagement of them. The duration prescribed is such as will give them\nan opportunity of greatly extending their political information, and\nof rendering their accumulating experience more and more beneficial\nto their country. Nor has the convention discovered less prudence in\nproviding for the frequent elections of senators in such a way as to\nobviate the inconvenience of periodically transferring those great\naffairs entirely to new men; for by leaving a considerable residue\nof the old ones in place, uniformity and order, as well as a constant\nsuccession of official information will be preserved.\n\nThere are a few who will not admit that the affairs of trade and\nnavigation should be regulated by a system cautiously formed and\nsteadily pursued; and that both our treaties and our laws should\ncorrespond with and be made to promote it. It is of much consequence\nthat this correspondence and conformity be carefully maintained; and\nthey who assent to the truth of this position will see and confess that\nit is well provided for by making concurrence of the Senate necessary\nboth to treaties and to laws.\n\nIt seldom happens in the negotiation of treaties, of whatever nature,\nbut that perfect SECRECY and immediate DESPATCH are sometimes requisite.\nThese are cases where the most useful intelligence may be obtained,\nif the persons possessing it can be relieved from apprehensions of\ndiscovery. Those apprehensions will operate on those persons whether\nthey are actuated by mercenary or friendly motives; and there doubtless\nare many of both descriptions, who would rely on the secrecy of the\nPresident, but who would not confide in that of the Senate, and still\nless in that of a large popular Assembly. The convention have done\nwell, therefore, in so disposing of the power of making treaties, that\nalthough the President must, in forming them, act by the advice and\nconsent of the Senate, yet he will be able to manage the business of\nintelligence in such a manner as prudence may suggest.\n\nThey who have turned their attention to the affairs of men, must have\nperceived that there are tides in them; tides very irregular in their\nduration, strength, and direction, and seldom found to run twice exactly\nin the same manner or measure. To discern and to profit by these tides\nin national affairs is the business of those who preside over them; and\nthey who have had much experience on this head inform us, that there\nfrequently are occasions when days, nay, even when hours, are precious.\nThe loss of a battle, the death of a prince, the removal of a minister,\nor other circumstances intervening to change the present posture and\naspect of affairs, may turn the most favorable tide into a course\nopposite to our wishes. As in the field, so in the cabinet, there are\nmoments to be seized as they pass, and they who preside in either should\nbe left in capacity to improve them. So often and so essentially have\nwe heretofore suffered from the want of secrecy and despatch, that the\nConstitution would have been inexcusably defective, if no attention had\nbeen paid to those objects. Those matters which in negotiations usually\nrequire the most secrecy and the most despatch, are those preparatory\nand auxiliary measures which are not otherwise important in a national\nview, than as they tend to facilitate the attainment of the objects of\nthe negotiation. For these, the President will find no difficulty to\nprovide; and should any circumstance occur which requires the advice and\nconsent of the Senate, he may at any time convene them. Thus we see that\nthe Constitution provides that our negotiations for treaties shall\nhave every advantage which can be derived from talents, information,\nintegrity, and deliberate investigations, on the one hand, and from\nsecrecy and despatch on the other.\n\nBut to this plan, as to most others that have ever appeared, objections\nare contrived and urged.\n\nSome are displeased with it, not on account of any errors or defects in\nit, but because, as the treaties, when made, are to have the force\nof laws, they should be made only by men invested with legislative\nauthority. These gentlemen seem not to consider that the judgments of\nour courts, and the commissions constitutionally given by our governor,\nare as valid and as binding on all persons whom they concern, as the\nlaws passed by our legislature. All constitutional acts of power,\nwhether in the executive or in the judicial department, have as much\nlegal validity and obligation as if they proceeded from the legislature;\nand therefore, whatever name be given to the power of making treaties,\nor however obligatory they may be when made, certain it is, that the\npeople may, with much propriety, commit the power to a distinct body\nfrom the legislature, the executive, or the judicial. It surely does\nnot follow, that because they have given the power of making laws to the\nlegislature, that therefore they should likewise give them the power to\ndo every other act of sovereignty by which the citizens are to be bound\nand affected.\n\nOthers, though content that treaties should be made in the mode\nproposed, are averse to their being the SUPREME laws of the land. They\ninsist, and profess to believe, that treaties like acts of assembly,\nshould be repealable at pleasure. This idea seems to be new and peculiar\nto this country, but new errors, as well as new truths, often appear.\nThese gentlemen would do well to reflect that a treaty is only another\nname for a bargain, and that it would be impossible to find a nation\nwho would make any bargain with us, which should be binding on them\nABSOLUTELY, but on us only so long and so far as we may think proper to\nbe bound by it. They who make laws may, without doubt, amend or repeal\nthem; and it will not be disputed that they who make treaties may alter\nor cancel them; but still let us not forget that treaties are made, not\nby only one of the contracting parties, but by both; and consequently,\nthat as the consent of both was essential to their formation at first,\nso must it ever afterwards be to alter or cancel them. The proposed\nConstitution, therefore, has not in the least extended the obligation\nof treaties. They are just as binding, and just as far beyond the lawful\nreach of legislative acts now, as they will be at any future period, or\nunder any form of government.\n\nHowever useful jealousy may be in republics, yet when like bile in\nthe natural, it abounds too much in the body politic, the eyes of both\nbecome very liable to be deceived by the delusive appearances which that\nmalady casts on surrounding objects. From this cause, probably, proceed\nthe fears and apprehensions of some, that the President and Senate may\nmake treaties without an equal eye to the interests of all the States.\nOthers suspect that two thirds will oppress the remaining third, and\nask whether those gentlemen are made sufficiently responsible for their\nconduct; whether, if they act corruptly, they can be punished; and\nif they make disadvantageous treaties, how are we to get rid of those\ntreaties?\n\nAs all the States are equally represented in the Senate, and by men\nthe most able and the most willing to promote the interests of their\nconstituents, they will all have an equal degree of influence in that\nbody, especially while they continue to be careful in appointing proper\npersons, and to insist on their punctual attendance. In proportion as\nthe United States assume a national form and a national character, so\nwill the good of the whole be more and more an object of attention, and\nthe government must be a weak one indeed, if it should forget that the\ngood of the whole can only be promoted by advancing the good of each\nof the parts or members which compose the whole. It will not be in the\npower of the President and Senate to make any treaties by which they and\ntheir families and estates will not be equally bound and affected with\nthe rest of the community; and, having no private interests distinct\nfrom that of the nation, they will be under no temptations to neglect\nthe latter.\n\nAs to corruption, the case is not supposable. He must either have been\nvery unfortunate in his intercourse with the world, or possess a heart\nvery susceptible of such impressions, who can think it probable that\nthe President and two thirds of the Senate will ever be capable of\nsuch unworthy conduct. The idea is too gross and too invidious to be\nentertained. But in such a case, if it should ever happen, the treaty so\nobtained from us would, like all other fraudulent contracts, be null and\nvoid by the law of nations.\n\nWith respect to their responsibility, it is difficult to conceive how\nit could be increased. Every consideration that can influence the\nhuman mind, such as honor, oaths, reputations, conscience, the love\nof country, and family affections and attachments, afford security for\ntheir fidelity. In short, as the Constitution has taken the utmost care\nthat they shall be men of talents and integrity, we have reason to be\npersuaded that the treaties they make will be as advantageous as, all\ncircumstances considered, could be made; and so far as the fear of\npunishment and disgrace can operate, that motive to good behavior is\namply afforded by the article on the subject of impeachments.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 65\n\nThe Powers of the Senate Continued\n\nFrom the New York Packet. Friday, March 7, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE remaining powers which the plan of the convention allots to the\nSenate, in a distinct capacity, are comprised in their participation\nwith the executive in the appointment to offices, and in their judicial\ncharacter as a court for the trial of impeachments. As in the business\nof appointments the executive will be the principal agent, the\nprovisions relating to it will most properly be discussed in the\nexamination of that department. We will, therefore, conclude this head\nwith a view of the judicial character of the Senate.\n\nA well-constituted court for the trial of impeachments is an object not\nmore to be desired than difficult to be obtained in a government wholly\nelective. The subjects of its jurisdiction are those offenses which\nproceed from the misconduct of public men, or, in other words, from the\nabuse or violation of some public trust. They are of a nature which may\nwith peculiar propriety be denominated POLITICAL, as they relate chiefly\nto injuries done immediately to the society itself. The prosecution of\nthem, for this reason, will seldom fail to agitate the passions of the\nwhole community, and to divide it into parties more or less friendly or\ninimical to the accused. In many cases it will connect itself with\nthe pre-existing factions, and will enlist all their animosities,\npartialities, influence, and interest on one side or on the other; and\nin such cases there will always be the greatest danger that the decision\nwill be regulated more by the comparative strength of parties, than by\nthe real demonstrations of innocence or guilt.\n\nThe delicacy and magnitude of a trust which so deeply concerns\nthe political reputation and existence of every man engaged in the\nadministration of public affairs, speak for themselves. The difficulty\nof placing it rightly, in a government resting entirely on the basis\nof periodical elections, will as readily be perceived, when it is\nconsidered that the most conspicuous characters in it will, from that\ncircumstance, be too often the leaders or the tools of the most cunning\nor the most numerous faction, and on this account, can hardly be\nexpected to possess the requisite neutrality towards those whose conduct\nmay be the subject of scrutiny.\n\nThe convention, it appears, thought the Senate the most fit depositary\nof this important trust. Those who can best discern the intrinsic\ndifficulty of the thing, will be least hasty in condemning that opinion,\nand will be most inclined to allow due weight to the arguments which may\nbe supposed to have produced it.\n\nWhat, it may be asked, is the true spirit of the institution itself?\nIs it not designed as a method of NATIONAL INQUEST into the conduct\nof public men? If this be the design of it, who can so properly be\nthe inquisitors for the nation as the representatives of the nation\nthemselves? It is not disputed that the power of originating the\ninquiry, or, in other words, of preferring the impeachment, ought to be\nlodged in the hands of one branch of the legislative body. Will not the\nreasons which indicate the propriety of this arrangement strongly plead\nfor an admission of the other branch of that body to a share of the\ninquiry? The model from which the idea of this institution has been\nborrowed, pointed out that course to the convention. In Great Britain it\nis the province of the House of Commons to prefer the impeachment,\nand of the House of Lords to decide upon it. Several of the State\nconstitutions have followed the example. As well the latter, as the\nformer, seem to have regarded the practice of impeachments as a bridle\nin the hands of the legislative body upon the executive servants of the\ngovernment. Is not this the true light in which it ought to be regarded?\n\nWhere else than in the Senate could have been found a tribunal\nsufficiently dignified, or sufficiently independent? What other body\nwould be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to\npreserve, unawed and uninfluenced, the necessary impartiality between an\nINDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?\n\nCould the Supreme Court have been relied upon as answering this\ndescription? It is much to be doubted, whether the members of that\ntribunal would at all times be endowed with so eminent a portion of\nfortitude, as would be called for in the execution of so difficult a\ntask; and it is still more to be doubted, whether they would possess the\ndegree of credit and authority, which might, on certain occasions, be\nindispensable towards reconciling the people to a decision that\nshould happen to clash with an accusation brought by their immediate\nrepresentatives. A deficiency in the first, would be fatal to the\naccused; in the last, dangerous to the public tranquillity. The hazard\nin both these respects, could only be avoided, if at all, by rendering\nthat tribunal more numerous than would consist with a reasonable\nattention to economy. The necessity of a numerous court for the trial of\nimpeachments, is equally dictated by the nature of the proceeding. This\ncan never be tied down by such strict rules, either in the delineation\nof the offense by the prosecutors, or in the construction of it by the\njudges, as in common cases serve to limit the discretion of courts in\nfavor of personal security. There will be no jury to stand between the\njudges who are to pronounce the sentence of the law, and the party\nwho is to receive or suffer it. The awful discretion which a court of\nimpeachments must necessarily have, to doom to honor or to infamy\nthe most confidential and the most distinguished characters of the\ncommunity, forbids the commitment of the trust to a small number of\npersons.\n\nThese considerations seem alone sufficient to authorize a conclusion,\nthat the Supreme Court would have been an improper substitute for\nthe Senate, as a court of impeachments. There remains a further\nconsideration, which will not a little strengthen this conclusion. It\nis this: The punishment which may be the consequence of conviction upon\nimpeachment, is not to terminate the chastisement of the offender.\nAfter having been sentenced to a perpetual ostracism from the esteem and\nconfidence, and honors and emoluments of his country, he will still\nbe liable to prosecution and punishment in the ordinary course of law.\nWould it be proper that the persons who had disposed of his fame, and\nhis most valuable rights as a citizen in one trial, should, in another\ntrial, for the same offense, be also the disposers of his life and\nhis fortune? Would there not be the greatest reason to apprehend, that\nerror, in the first sentence, would be the parent of error in the second\nsentence? That the strong bias of one decision would be apt to overrule\nthe influence of any new lights which might be brought to vary the\ncomplexion of another decision? Those who know anything of human nature,\nwill not hesitate to answer these questions in the affirmative; and will\nbe at no loss to perceive, that by making the same persons judges in\nboth cases, those who might happen to be the objects of prosecution\nwould, in a great measure, be deprived of the double security intended\nthem by a double trial. The loss of life and estate would often be\nvirtually included in a sentence which, in its terms, imported nothing\nmore than dismission from a present, and disqualification for a future,\noffice. It may be said, that the intervention of a jury, in the second\ninstance, would obviate the danger. But juries are frequently influenced\nby the opinions of judges. They are sometimes induced to find special\nverdicts, which refer the main question to the decision of the court.\nWho would be willing to stake his life and his estate upon the verdict\nof a jury acting under the auspices of judges who had predetermined his\nguilt?\n\nWould it have been an improvement of the plan, to have united the\nSupreme Court with the Senate, in the formation of the court of\nimpeachments? This union would certainly have been attended with several\nadvantages; but would they not have been overbalanced by the signal\ndisadvantage, already stated, arising from the agency of the same judges\nin the double prosecution to which the offender would be liable? To a\ncertain extent, the benefits of that union will be obtained from making\nthe chief justice of the Supreme Court the president of the court of\nimpeachments, as is proposed to be done in the plan of the convention;\nwhile the inconveniences of an entire incorporation of the former into\nthe latter will be substantially avoided. This was perhaps the prudent\nmean. I forbear to remark upon the additional pretext for clamor against\nthe judiciary, which so considerable an augmentation of its authority\nwould have afforded.\n\nWould it have been desirable to have composed the court for the trial of\nimpeachments, of persons wholly distinct from the other departments\nof the government? There are weighty arguments, as well against, as\nin favor of, such a plan. To some minds it will not appear a trivial\nobjection, that it could tend to increase the complexity of the\npolitical machine, and to add a new spring to the government, the\nutility of which would at best be questionable. But an objection which\nwill not be thought by any unworthy of attention, is this: a court\nformed upon such a plan, would either be attended with a heavy\nexpense, or might in practice be subject to a variety of casualties and\ninconveniences. It must either consist of permanent officers, stationary\nat the seat of government, and of course entitled to fixed and regular\nstipends, or of certain officers of the State governments to be called\nupon whenever an impeachment was actually depending. It will not be easy\nto imagine any third mode materially different, which could rationally\nbe proposed. As the court, for reasons already given, ought to be\nnumerous, the first scheme will be reprobated by every man who can\ncompare the extent of the public wants with the means of supplying them.\nThe second will be espoused with caution by those who will seriously\nconsider the difficulty of collecting men dispersed over the whole\nUnion; the injury to the innocent, from the procrastinated determination\nof the charges which might be brought against them; the advantage to the\nguilty, from the opportunities which delay would afford to intrigue\nand corruption; and in some cases the detriment to the State, from the\nprolonged inaction of men whose firm and faithful execution of their\nduty might have exposed them to the persecution of an intemperate or\ndesigning majority in the House of Representatives. Though this\nlatter supposition may seem harsh, and might not be likely often to be\nverified, yet it ought not to be forgotten that the demon of faction\nwill, at certain seasons, extend his sceptre over all numerous bodies of\nmen.\n\nBut though one or the other of the substitutes which have been examined,\nor some other that might be devised, should be thought preferable to\nthe plan in this respect, reported by the convention, it will not follow\nthat the Constitution ought for this reason to be rejected. If mankind\nwere to resolve to agree in no institution of government, until every\npart of it had been adjusted to the most exact standard of perfection,\nsociety would soon become a general scene of anarchy, and the world\na desert. Where is the standard of perfection to be found? Who will\nundertake to unite the discordant opinions of a whole community, in the\nsame judgment of it; and to prevail upon one conceited projector to\nrenounce his INFALLIBLE criterion for the FALLIBLE criterion of his\nmore CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the\nConstitution, they ought to prove, not merely that particular provisions\nin it are not the best which might have been imagined, but that the plan\nupon the whole is bad and pernicious.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 66\n\nObjections to the Power of the Senate To Set as a Court for Impeachments\nFurther Considered.\n\nFrom The Independent Journal. Saturday, March 8, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nA REVIEW of the principal objections that have appeared against the\nproposed court for the trial of impeachments, will not improbably\neradicate the remains of any unfavorable impressions which may still\nexist in regard to this matter.\n\nThe FIRST of these objections is, that the provision in question\nconfounds legislative and judiciary authorities in the same body, in\nviolation of that important and well-established maxim which requires a\nseparation between the different departments of power. The true meaning\nof this maxim has been discussed and ascertained in another place, and\nhas been shown to be entirely compatible with a partial intermixture of\nthose departments for special purposes, preserving them, in the main,\ndistinct and unconnected. This partial intermixture is even, in some\ncases, not only proper but necessary to the mutual defense of the\nseveral members of the government against each other. An absolute or\nqualified negative in the executive upon the acts of the legislative\nbody, is admitted, by the ablest adepts in political science, to be an\nindispensable barrier against the encroachments of the latter upon the\nformer. And it may, perhaps, with no less reason be contended, that the\npowers relating to impeachments are, as before intimated, an essential\ncheck in the hands of that body upon the encroachments of the executive.\nThe division of them between the two branches of the legislature,\nassigning to one the right of accusing, to the other the right of\njudging, avoids the inconvenience of making the same persons both\naccusers and judges; and guards against the danger of persecution, from\nthe prevalency of a factious spirit in either of those branches. As\nthe concurrence of two thirds of the Senate will be requisite to\na condemnation, the security to innocence, from this additional\ncircumstance, will be as complete as itself can desire.\n\nIt is curious to observe, with what vehemence this part of the plan is\nassailed, on the principle here taken notice of, by men who profess to\nadmire, without exception, the constitution of this State; while that\nconstitution makes the Senate, together with the chancellor and judges\nof the Supreme Court, not only a court of impeachments, but the\nhighest judicatory in the State, in all causes, civil and criminal. The\nproportion, in point of numbers, of the chancellor and judges to the\nsenators, is so inconsiderable, that the judiciary authority of New\nYork, in the last resort, may, with truth, be said to reside in its\nSenate. If the plan of the convention be, in this respect, chargeable\nwith a departure from the celebrated maxim which has been so often\nmentioned, and seems to be so little understood, how much more culpable\nmust be the constitution of New York?(1)\n\nA SECOND objection to the Senate, as a court of impeachments, is, that\nit contributes to an undue accumulation of power in that body, tending\nto give to the government a countenance too aristocratic. The Senate, it\nis observed, is to have concurrent authority with the Executive in the\nformation of treaties and in the appointment to offices: if, say the\nobjectors, to these prerogatives is added that of deciding in all\ncases of impeachment, it will give a decided predominancy to senatorial\ninfluence. To an objection so little precise in itself, it is not easy\nto find a very precise answer. Where is the measure or criterion to\nwhich we can appeal, for determining what will give the Senate too much,\ntoo little, or barely the proper degree of influence? Will it not be\nmore safe, as well as more simple, to dismiss such vague and uncertain\ncalculations, to examine each power by itself, and to decide, on general\nprinciples, where it may be deposited with most advantage and least\ninconvenience?\n\nIf we take this course, it will lead to a more intelligible, if not to\na more certain result. The disposition of the power of making treaties,\nwhich has obtained in the plan of the convention, will, then, if I\nmistake not, appear to be fully justified by the considerations stated\nin a former number, and by others which will occur under the next head\nof our inquiries. The expediency of the junction of the Senate with\nthe Executive, in the power of appointing to offices, will, I trust, be\nplaced in a light not less satisfactory, in the disquisitions under the\nsame head. And I flatter myself the observations in my last paper must\nhave gone no inconsiderable way towards proving that it was not easy, if\npracticable, to find a more fit receptacle for the power of determining\nimpeachments, than that which has been chosen. If this be truly the\ncase, the hypothetical dread of the too great weight of the Senate ought\nto be discarded from our reasonings.\n\nBut this hypothesis, such as it is, has already been refuted in the\nremarks applied to the duration in office prescribed for the senators.\nIt was by them shown, as well on the credit of historical examples,\nas from the reason of the thing, that the most POPULAR branch of every\ngovernment, partaking of the republican genius, by being generally the\nfavorite of the people, will be as generally a full match, if not an\novermatch, for every other member of the Government.\n\nBut independent of this most active and operative principle, to secure\nthe equilibrium of the national House of Representatives, the plan of\nthe convention has provided in its favor several important counterpoises\nto the additional authorities to be conferred upon the Senate. The\nexclusive privilege of originating money bills will belong to the\nHouse of Representatives. The same house will possess the sole right of\ninstituting impeachments: is not this a complete counterbalance to that\nof determining them? The same house will be the umpire in all elections\nof the President, which do not unite the suffrages of a majority of\nthe whole number of electors; a case which it cannot be doubted will\nsometimes, if not frequently, happen. The constant possibility of the\nthing must be a fruitful source of influence to that body. The more it\nis contemplated, the more important will appear this ultimate though\ncontingent power, of deciding the competitions of the most illustrious\ncitizens of the Union, for the first office in it. It would not perhaps\nbe rash to predict, that as a mean of influence it will be found to\noutweigh all the peculiar attributes of the Senate.\n\nA THIRD objection to the Senate as a court of impeachments, is drawn\nfrom the agency they are to have in the appointments to office. It is\nimagined that they would be too indulgent judges of the conduct of men,\nin whose official creation they had participated. The principle of this\nobjection would condemn a practice, which is to be seen in all the State\ngovernments, if not in all the governments with which we are acquainted:\nI mean that of rendering those who hold offices during pleasure,\ndependent on the pleasure of those who appoint them. With equal\nplausibility might it be alleged in this case, that the favoritism of\nthe latter would always be an asylum for the misbehavior of the former.\nBut that practice, in contradiction to this principle, proceeds upon\nthe presumption, that the responsibility of those who appoint, for the\nfitness and competency of the persons on whom they bestow their choice,\nand the interest they will have in the respectable and prosperous\nadministration of affairs, will inspire a sufficient disposition to\ndismiss from a share in it all such who, by their conduct, shall have\nproved themselves unworthy of the confidence reposed in them. Though\nfacts may not always correspond with this presumption, yet if it be,\nin the main, just, it must destroy the supposition that the Senate, who\nwill merely sanction the choice of the Executive, should feel a bias,\ntowards the objects of that choice, strong enough to blind them to\nthe evidences of guilt so extraordinary, as to have induced the\nrepresentatives of the nation to become its accusers.\n\nIf any further arguments were necessary to evince the improbability of\nsuch a bias, it might be found in the nature of the agency of the Senate\nin the business of appointments. It will be the office of the President\nto NOMINATE, and, with the advice and consent of the Senate, to APPOINT.\nThere will, of course, be no exertion of CHOICE on the part of the\nSenate. They may defeat one choice of the Executive, and oblige him to\nmake another; but they cannot themselves CHOOSE--they can only ratify\nor reject the choice of the President. They might even entertain a\npreference to some other person, at the very moment they were assenting\nto the one proposed, because there might be no positive ground of\nopposition to him; and they could not be sure, if they withheld their\nassent, that the subsequent nomination would fall upon their own\nfavorite, or upon any other person in their estimation more meritorious\nthan the one rejected. Thus it could hardly happen, that the majority\nof the Senate would feel any other complacency towards the object of an\nappointment than such as the appearances of merit might inspire, and the\nproofs of the want of it destroy.\n\nA FOURTH objection to the Senate in the capacity of a court of\nimpeachments, is derived from its union with the Executive in the\npower of making treaties. This, it has been said, would constitute the\nsenators their own judges, in every case of a corrupt or perfidious\nexecution of that trust. After having combined with the Executive\nin betraying the interests of the nation in a ruinous treaty, what\nprospect, it is asked, would there be of their being made to suffer the\npunishment they would deserve, when they were themselves to decide upon\nthe accusation brought against them for the treachery of which they have\nbeen guilty?\n\nThis objection has been circulated with more earnestness and with\ngreater show of reason than any other which has appeared against this\npart of the plan; and yet I am deceived if it does not rest upon an\nerroneous foundation.\n\nThe security essentially intended by the Constitution against corruption\nand treachery in the formation of treaties, is to be sought for in the\nnumbers and characters of those who are to make them. The JOINT AGENCY\nof the Chief Magistrate of the Union, and of two thirds of the members\nof a body selected by the collective wisdom of the legislatures of the\nseveral States, is designed to be the pledge for the fidelity of\nthe national councils in this particular. The convention might with\npropriety have meditated the punishment of the Executive, for a\ndeviation from the instructions of the Senate, or a want of integrity in\nthe conduct of the negotiations committed to him; they might also have\nhad in view the punishment of a few leading individuals in the Senate,\nwho should have prostituted their influence in that body as the\nmercenary instruments of foreign corruption: but they could not, with\nmore or with equal propriety, have contemplated the impeachment and\npunishment of two thirds of the Senate, consenting to an improper\ntreaty, than of a majority of that or of the other branch of the\nnational legislature, consenting to a pernicious or unconstitutional\nlaw--a principle which, I believe, has never been admitted into\nany government. How, in fact, could a majority in the House of\nRepresentatives impeach themselves? Not better, it is evident, than two\nthirds of the Senate might try themselves. And yet what reason is\nthere, that a majority of the House of Representatives, sacrificing the\ninterests of the society by an unjust and tyrannical act of legislation,\nshould escape with impunity, more than two thirds of the Senate,\nsacrificing the same interests in an injurious treaty with a foreign\npower? The truth is, that in all such cases it is essential to the\nfreedom and to the necessary independence of the deliberations of the\nbody, that the members of it should be exempt from punishment for acts\ndone in a collective capacity; and the security to the society must\ndepend on the care which is taken to confide the trust to proper hands,\nto make it their interest to execute it with fidelity, and to make it\nas difficult as possible for them to combine in any interest opposite to\nthat of the public good.\n\nSo far as might concern the misbehavior of the Executive in perverting\nthe instructions or contravening the views of the Senate, we need not\nbe apprehensive of the want of a disposition in that body to punish the\nabuse of their confidence or to vindicate their own authority. We may\nthus far count upon their pride, if not upon their virtue. And so far\neven as might concern the corruption of leading members, by whose arts\nand influence the majority may have been inveigled into measures\nodious to the community, if the proofs of that corruption should be\nsatisfactory, the usual propensity of human nature will warrant us in\nconcluding that there would be commonly no defect of inclination in\nthe body to divert the public resentment from themselves by a ready\nsacrifice of the authors of their mismanagement and disgrace.\n\nPUBLIUS\n\n1. In that of New Jersey, also, the final judiciary authority is in\na branch of the legislature. In New Hampshire, Massachusetts,\nPennsylvania, and South Carolina, one branch of the legislature is the\ncourt for the trial of impeachments.\n\n\n\n\nFEDERALIST No. 67\n\nThe Executive Department\n\nFrom the New York Packet. Tuesday, March 11, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE constitution of the executive department of the proposed government,\nclaims next our attention.\n\nThere is hardly any part of the system which could have been attended\nwith greater difficulty in the arrangement of it than this; and there\nis, perhaps, none which has been inveighed against with less candor or\ncriticised with less judgment.\n\nHere the writers against the Constitution seem to have taken pains\nto signalize their talent of misrepresentation. Calculating upon the\naversion of the people to monarchy, they have endeavored to enlist\nall their jealousies and apprehensions in opposition to the intended\nPresident of the United States; not merely as the embryo, but as the\nfull-grown progeny, of that detested parent. To establish the pretended\naffinity, they have not scrupled to draw resources even from the regions\nof fiction. The authorities of a magistrate, in few instances greater,\nin some instances less, than those of a governor of New York, have been\nmagnified into more than royal prerogatives. He has been decorated with\nattributes superior in dignity and splendor to those of a king of Great\nBritain. He has been shown to us with the diadem sparkling on his brow\nand the imperial purple flowing in his train. He has been seated on a\nthrone surrounded with minions and mistresses, giving audience to the\nenvoys of foreign potentates, in all the supercilious pomp of majesty.\nThe images of Asiatic despotism and voluptuousness have scarcely been\nwanting to crown the exaggerated scene. We have been taught to tremble\nat the terrific visages of murdering janizaries, and to blush at the\nunveiled mysteries of a future seraglio.\n\nAttempts so extravagant as these to disfigure or, it might rather\nbe said, to metamorphose the object, render it necessary to take an\naccurate view of its real nature and form: in order as well to ascertain\nits true aspect and genuine appearance, as to unmask the disingenuity\nand expose the fallacy of the counterfeit resemblances which have been\nso insidiously, as well as industriously, propagated.\n\nIn the execution of this task, there is no man who would not find it\nan arduous effort either to behold with moderation, or to treat with\nseriousness, the devices, not less weak than wicked, which have been\ncontrived to pervert the public opinion in relation to the subject. They\nso far exceed the usual though unjustifiable licenses of party artifice,\nthat even in a disposition the most candid and tolerant, they must force\nthe sentiments which favor an indulgent construction of the conduct\nof political adversaries to give place to a voluntary and unreserved\nindignation. It is impossible not to bestow the imputation of deliberate\nimposture and deception upon the gross pretense of a similitude between\na king of Great Britain and a magistrate of the character marked out for\nthat of the President of the United States. It is still more impossible\nto withhold that imputation from the rash and barefaced expedients which\nhave been employed to give success to the attempted imposition.\n\nIn one instance, which I cite as a sample of the general spirit, the\ntemerity has proceeded so far as to ascribe to the President of the\nUnited States a power which by the instrument reported is EXPRESSLY\nallotted to the Executives of the individual States. I mean the power of\nfilling casual vacancies in the Senate.\n\nThis bold experiment upon the discernment of his countrymen has been\nhazarded by a writer who (whatever may be his real merit) has had no\ninconsiderable share in the applauses of his party(1); and who, upon\nthis false and unfounded suggestion, has built a series of observations\nequally false and unfounded. Let him now be confronted with the evidence\nof the fact, and let him, if he be able, justify or extenuate the\nshameful outrage he has offered to the dictates of truth and to the\nrules of fair dealing.\n\nThe second clause of the second section of the second article empowers\nthe President of the United States \"to nominate, and by and with the\nadvice and consent of the Senate, to appoint ambassadors, other public\nministers and consuls, judges of the Supreme Court, and all other\nOFFICERS of United States whose appointments are NOT in the Constitution\nOTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW.\"\nImmediately after this clause follows another in these words: \"The\nPresident shall have power to fill up all VACANCIES that may happen\nDURING THE RECESS OF THE SENATE, by granting commissions which shall\nEXPIRE AT THE END OF THEIR NEXT SESSION.\" It is from this last provision\nthat the pretended power of the President to fill vacancies in the\nSenate has been deduced. A slight attention to the connection of the\nclauses, and to the obvious meaning of the terms, will satisfy us that\nthe deduction is not even colorable.\n\nThe first of these two clauses, it is clear, only provides a mode for\nappointing such officers, \"whose appointments are NOT OTHERWISE PROVIDED\nFOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW\";\nof course it cannot extend to the appointments of senators, whose\nappointments are OTHERWISE PROVIDED FOR in the Constitution(2), and\nwho are ESTABLISHED BY THE CONSTITUTION, and will not require a future\nestablishment by law. This position will hardly be contested.\n\nThe last of these two clauses, it is equally clear, cannot be understood\nto comprehend the power of filling vacancies in the Senate, for the\nfollowing reasons: First. The relation in which that clause stands to\nthe other, which declares the general mode of appointing officers of the\nUnited States, denotes it to be nothing more than a supplement to\nthe other, for the purpose of establishing an auxiliary method of\nappointment, in cases to which the general method was inadequate. The\nordinary power of appointment is confined to the President and Senate\nJOINTLY, and can therefore only be exercised during the session of the\nSenate; but as it would have been improper to oblige this body to be\ncontinually in session for the appointment of officers and as vacancies\nmight happen IN THEIR RECESS, which it might be necessary for the\npublic service to fill without delay, the succeeding clause is\nevidently intended to authorize the President, SINGLY, to make temporary\nappointments \"during the recess of the Senate, by granting commissions\nwhich shall expire at the end of their next session.\" Second. If this\nclause is to be considered as supplementary to the one which precedes,\nthe VACANCIES of which it speaks must be construed to relate to the\n\"officers\" described in the preceding one; and this, we have seen,\nexcludes from its description the members of the Senate. Third. The time\nwithin which the power is to operate, \"during the recess of the Senate,\"\nand the duration of the appointments, \"to the end of the next session\"\nof that body, conspire to elucidate the sense of the provision, which,\nif it had been intended to comprehend senators, would naturally have\nreferred the temporary power of filling vacancies to the recess of the\nState legislatures, who are to make the permanent appointments, and\nnot to the recess of the national Senate, who are to have no concern in\nthose appointments; and would have extended the duration in office of\nthe temporary senators to the next session of the legislature of the\nState, in whose representation the vacancies had happened, instead of\nmaking it to expire at the end of the ensuing session of the national\nSenate. The circumstances of the body authorized to make the permanent\nappointments would, of course, have governed the modification of a power\nwhich related to the temporary appointments; and as the national Senate\nis the body, whose situation is alone contemplated in the clause upon\nwhich the suggestion under examination has been founded, the vacancies\nto which it alludes can only be deemed to respect those officers in\nwhose appointment that body has a concurrent agency with the President.\nBut last, the first and second clauses of the third section of the first\narticle, not only obviate all possibility of doubt, but destroy the\npretext of misconception. The former provides, that \"the Senate of the\nUnited States shall be composed of two Senators from each State, chosen\nBY THE LEGISLATURE THEREOF for six years\"; and the latter directs, that,\n\"if vacancies in that body should happen by resignation or otherwise,\nDURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the Executive\nTHEREOF may make temporary appointments until the NEXT MEETING OF THE\nLEGISLATURE, which shall then fill such vacancies.\" Here is an express\npower given, in clear and unambiguous terms, to the State Executives,\nto fill casual vacancies in the Senate, by temporary appointments; which\nnot only invalidates the supposition, that the clause before considered\ncould have been intended to confer that power upon the President of the\nUnited States, but proves that this supposition, destitute as it is even\nof the merit of plausibility, must have originated in an intention\nto deceive the people, too palpable to be obscured by sophistry, too\natrocious to be palliated by hypocrisy.\n\nI have taken the pains to select this instance of misrepresentation, and\nto place it in a clear and strong light, as an unequivocal proof of the\nunwarrantable arts which are practiced to prevent a fair and impartial\njudgment of the real merits of the Constitution submitted to the\nconsideration of the people. Nor have I scrupled, in so flagrant a case,\nto allow myself a severity of animadversion little congenial with the\ngeneral spirit of these papers. I hesitate not to submit it to the\ndecision of any candid and honest adversary of the proposed government,\nwhether language can furnish epithets of too much asperity, for so\nshameless and so prostitute an attempt to impose on the citizens of\nAmerica.\n\nPUBLIUS\n\n1. See CATO, No. V.\n\n2. Article I, section 3, clause 1.\n\n\n\n\nFEDERALIST No. 68\n\nThe Mode of Electing the President\n\nFrom The Independent Journal. Wednesday, March 12, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE mode of appointment of the Chief Magistrate of the United States\nis almost the only part of the system, of any consequence, which has\nescaped without severe censure, or which has received the slightest mark\nof approbation from its opponents. The most plausible of these, who has\nappeared in print, has even deigned to admit that the election of the\nPresident is pretty well guarded.(1) I venture somewhat further, and\nhesitate not to affirm, that if the manner of it be not perfect, it is\nat least excellent. It unites in an eminent degree all the advantages,\nthe union of which was to be wished for.(E1)\n\nIt was desirable that the sense of the people should operate in the\nchoice of the person to whom so important a trust was to be confided.\nThis end will be answered by committing the right of making it, not to\nany preestablished body, but to men chosen by the people for the special\npurpose, and at the particular conjuncture.\n\nIt was equally desirable, that the immediate election should be made by\nmen most capable of analyzing the qualities adapted to the station, and\nacting under circumstances favorable to deliberation, and to a judicious\ncombination of all the reasons and inducements which were proper to\ngovern their choice. A small number of persons, selected by their\nfellow-citizens from the general mass, will be most likely to\npossess the information and discernment requisite to such complicated\ninvestigations.\n\nIt was also peculiarly desirable to afford as little opportunity as\npossible to tumult and disorder. This evil was not least to be dreaded\nin the election of a magistrate, who was to have so important an agency\nin the administration of the government as the President of the United\nStates. But the precautions which have been so happily concerted in the\nsystem under consideration, promise an effectual security against\nthis mischief. The choice of SEVERAL, to form an intermediate body\nof electors, will be much less apt to convulse the community with any\nextraordinary or violent movements, than the choice of ONE who was\nhimself to be the final object of the public wishes. And as the\nelectors, chosen in each State, are to assemble and vote in the State in\nwhich they are chosen, this detached and divided situation will expose\nthem much less to heats and ferments, which might be communicated from\nthem to the people, than if they were all to be convened at one time, in\none place.\n\nNothing was more to be desired than that every practicable obstacle\nshould be opposed to cabal, intrigue, and corruption. These most deadly\nadversaries of republican government might naturally have been expected\nto make their approaches from more than one quarter, but chiefly from\nthe desire in foreign powers to gain an improper ascendant in our\ncouncils. How could they better gratify this, than by raising a creature\nof their own to the chief magistracy of the Union? But the convention\nhave guarded against all danger of this sort, with the most provident\nand judicious attention. They have not made the appointment of the\nPresident to depend on any preexisting bodies of men, who might be\ntampered with beforehand to prostitute their votes; but they have\nreferred it in the first instance to an immediate act of the people of\nAmerica, to be exerted in the choice of persons for the temporary and\nsole purpose of making the appointment. And they have excluded from\neligibility to this trust, all those who from situation might be\nsuspected of too great devotion to the President in office. No senator,\nrepresentative, or other person holding a place of trust or profit under\nthe United States, can be of the numbers of the electors. Thus without\ncorrupting the body of the people, the immediate agents in the election\nwill at least enter upon the task free from any sinister bias. Their\ntransient existence, and their detached situation, already taken notice\nof, afford a satisfactory prospect of their continuing so, to the\nconclusion of it. The business of corruption, when it is to embrace so\nconsiderable a number of men, requires time as well as means. Nor would\nit be found easy suddenly to embark them, dispersed as they would be\nover thirteen States, in any combinations founded upon motives, which\nthough they could not properly be denominated corrupt, might yet be of a\nnature to mislead them from their duty.\n\nAnother and no less important desideratum was, that the Executive should\nbe independent for his continuance in office on all but the people\nthemselves. He might otherwise be tempted to sacrifice his duty to his\ncomplaisance for those whose favor was necessary to the duration of his\nofficial consequence. This advantage will also be secured, by making his\nre-election to depend on a special body of representatives, deputed by\nthe society for the single purpose of making the important choice.\n\nAll these advantages will happily combine in the plan devised by the\nconvention; which is, that the people of each State shall choose a\nnumber of persons as electors, equal to the number of senators and\nrepresentatives of such State in the national government, who shall\nassemble within the State, and vote for some fit person as President.\nTheir votes, thus given, are to be transmitted to the seat of the\nnational government, and the person who may happen to have a majority\nof the whole number of votes will be the President. But as a majority of\nthe votes might not always happen to centre in one man, and as it\nmight be unsafe to permit less than a majority to be conclusive, it is\nprovided that, in such a contingency, the House of Representatives shall\nselect out of the candidates who shall have the five highest number\nof votes, the man who in their opinion may be best qualified for the\noffice.\n\nThe process of election affords a moral certainty, that the office of\nPresident will never fall to the lot of any man who is not in an eminent\ndegree endowed with the requisite qualifications. Talents for low\nintrigue, and the little arts of popularity, may alone suffice to\nelevate a man to the first honors in a single State; but it will require\nother talents, and a different kind of merit, to establish him in\nthe esteem and confidence of the whole Union, or of so considerable a\nportion of it as would be necessary to make him a successful candidate\nfor the distinguished office of President of the United States. It will\nnot be too strong to say, that there will be a constant probability\nof seeing the station filled by characters pre-eminent for ability and\nvirtue. And this will be thought no inconsiderable recommendation of\nthe Constitution, by those who are able to estimate the share which the\nexecutive in every government must necessarily have in its good or ill\nadministration. Though we cannot acquiesce in the political heresy of\nthe poet who says:\n\n\"For forms of government let fools contest--That which is best\nadministered is best,\"--yet we may safely pronounce, that the true test\nof a good government is its aptitude and tendency to produce a good\nadministration.\n\nThe Vice-President is to be chosen in the same manner with the\nPresident; with this difference, that the Senate is to do, in respect\nto the former, what is to be done by the House of Representatives, in\nrespect to the latter.\n\nThe appointment of an extraordinary person, as Vice-President, has been\nobjected to as superfluous, if not mischievous. It has been alleged,\nthat it would have been preferable to have authorized the Senate to\nelect out of their own body an officer answering that description. But\ntwo considerations seem to justify the ideas of the convention in\nthis respect. One is, that to secure at all times the possibility of\na definite resolution of the body, it is necessary that the President\nshould have only a casting vote. And to take the senator of any State\nfrom his seat as senator, to place him in that of President of the\nSenate, would be to exchange, in regard to the State from which he came,\na constant for a contingent vote. The other consideration is, that\nas the Vice-President may occasionally become a substitute for the\nPresident, in the supreme executive magistracy, all the reasons which\nrecommend the mode of election prescribed for the one, apply with great\nif not with equal force to the manner of appointing the other. It is\nremarkable that in this, as in most other instances, the objection which\nis made would lie against the constitution of this State. We have a\nLieutenant-Governor, chosen by the people at large, who presides in\nthe Senate, and is the constitutional substitute for the Governor, in\ncasualties similar to those which would authorize the Vice-President to\nexercise the authorities and discharge the duties of the President.\n\nPUBLIUS\n\n1. Vide federal farmer.\n\nE1. Some editions substitute \"desired\" for \"wished for\".\n\n\n\n\nFEDERALIST No. 69\n\nThe Real Character of the Executive\n\nFrom the New York Packet. Friday, March 14, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nI PROCEED now to trace the real characters of the proposed Executive,\nas they are marked out in the plan of the convention. This will serve to\nplace in a strong light the unfairness of the representations which have\nbeen made in regard to it.\n\nThe first thing which strikes our attention is, that the executive\nauthority, with few exceptions, is to be vested in a single magistrate.\nThis will scarcely, however, be considered as a point upon which any\ncomparison can be grounded; for if, in this particular, there be\na resemblance to the king of Great Britain, there is not less a\nresemblance to the Grand Seignior, to the khan of Tartary, to the Man of\nthe Seven Mountains, or to the governor of New York.\n\nThat magistrate is to be elected for four years; and is to be\nre-eligible as often as the people of the United States shall think\nhim worthy of their confidence. In these circumstances there is a\ntotal dissimilitude between him and a king of Great Britain, who is an\nhereditary monarch, possessing the crown as a patrimony descendible\nto his heirs forever; but there is a close analogy between him and a\ngovernor of New York, who is elected for three years, and is re-eligible\nwithout limitation or intermission. If we consider how much less time\nwould be requisite for establishing a dangerous influence in a single\nState, than for establishing a like influence throughout the United\nStates, we must conclude that a duration of four years for the Chief\nMagistrate of the Union is a degree of permanency far less to be dreaded\nin that office, than a duration of three years for a corresponding\noffice in a single State.\n\nThe President of the United States would be liable to be impeached,\ntried, and, upon conviction of treason, bribery, or other high crimes\nor misdemeanors, removed from office; and would afterwards be liable to\nprosecution and punishment in the ordinary course of law. The person\nof the king of Great Britain is sacred and inviolable; there is no\nconstitutional tribunal to which he is amenable; no punishment to\nwhich he can be subjected without involving the crisis of a national\nrevolution. In this delicate and important circumstance of personal\nresponsibility, the President of Confederated America would stand upon\nno better ground than a governor of New York, and upon worse ground than\nthe governors of Maryland and Delaware.\n\nThe President of the United States is to have power to return a bill,\nwhich shall have passed the two branches of the legislature, for\nreconsideration; and the bill so returned is to become a law, if, upon\nthat reconsideration, it be approved by two thirds of both houses. The\nking of Great Britain, on his part, has an absolute negative upon the\nacts of the two houses of Parliament. The disuse of that power for a\nconsiderable time past does not affect the reality of its existence;\nand is to be ascribed wholly to the crown's having found the means of\nsubstituting influence to authority, or the art of gaining a majority\nin one or the other of the two houses, to the necessity of exerting a\nprerogative which could seldom be exerted without hazarding some degree\nof national agitation. The qualified negative of the President differs\nwidely from this absolute negative of the British sovereign; and tallies\nexactly with the revisionary authority of the council of revision of\nthis State, of which the governor is a constituent part. In this respect\nthe power of the President would exceed that of the governor of New\nYork, because the former would possess, singly, what the latter shares\nwith the chancellor and judges; but it would be precisely the same with\nthat of the governor of Massachusetts, whose constitution, as to this\narticle, seems to have been the original from which the convention have\ncopied.\n\nThe President is to be the \"commander-in-chief of the army and navy of\nthe United States, and of the militia of the several States, when called\ninto the actual service of the United States. He is to have power to\ngrant reprieves and pardons for offenses against the United States,\nexcept in cases of impeachment; to recommend to the consideration of\nCongress such measures as he shall judge necessary and expedient; to\nconvene, on extraordinary occasions, both houses of the legislature, or\neither of them, and, in case of disagreement between them with respect\nto the time of adjournment, to adjourn them to such time as he shall\nthink proper; to take care that the laws be faithfully executed; and\nto commission all officers of the United States.\" In most of these\nparticulars, the power of the President will resemble equally that of\nthe king of Great Britain and of the governor of New York. The most\nmaterial points of difference are these:--First. The President will have\nonly the occasional command of such part of the militia of the nation\nas by legislative provision may be called into the actual service of the\nUnion. The king of Great Britain and the governor of New York have at\nall times the entire command of all the militia within their several\njurisdictions. In this article, therefore, the power of the President\nwould be inferior to that of either the monarch or the governor. Second.\nThe President is to be commander-in-chief of the army and navy of the\nUnited States. In this respect his authority would be nominally the same\nwith that of the king of Great Britain, but in substance much inferior\nto it. It would amount to nothing more than the supreme command and\ndirection of the military and naval forces, as first General and admiral\nof the Confederacy; while that of the British king extends to the\ndeclaring of war and to the raising and regulating of fleets and\narmies--all which, by the Constitution under consideration, would\nappertain to the legislature.(1) The governor of New York, on the other\nhand, is by the constitution of the State vested only with the command\nof its militia and navy. But the constitutions of several of the States\nexpressly declare their governors to be commanders-in-chief, as well of\nthe army as navy; and it may well be a question, whether those of New\nHampshire and Massachusetts, in particular, do not, in this instance,\nconfer larger powers upon their respective governors, than could be\nclaimed by a President of the United States. Third. The power of the\nPresident, in respect to pardons, would extend to all cases, except\nthose of impeachment. The governor of New York may pardon in all cases,\neven in those of impeachment, except for treason and murder. Is not the\npower of the governor, in this article, on a calculation of political\nconsequences, greater than that of the President? All conspiracies and\nplots against the government, which have not been matured into\nactual treason, may be screened from punishment of every kind, by the\ninterposition of the prerogative of pardoning. If a governor of New\nYork, therefore, should be at the head of any such conspiracy, until\nthe design had been ripened into actual hostility he could insure his\naccomplices and adherents an entire impunity. A President of the Union,\non the other hand, though he may even pardon treason, when prosecuted\nin the ordinary course of law, could shelter no offender, in any degree,\nfrom the effects of impeachment and conviction. Would not the prospect\nof a total indemnity for all the preliminary steps be a greater\ntemptation to undertake and persevere in an enterprise against the\npublic liberty, than the mere prospect of an exemption from death and\nconfiscation, if the final execution of the design, upon an actual\nappeal to arms, should miscarry? Would this last expectation have any\ninfluence at all, when the probability was computed, that the person\nwho was to afford that exemption might himself be involved in the\nconsequences of the measure, and might be incapacitated by his agency\nin it from affording the desired impunity? The better to judge of\nthis matter, it will be necessary to recollect, that, by the proposed\nConstitution, the offense of treason is limited \"to levying war upon\nthe United States, and adhering to their enemies, giving them aid and\ncomfort\"; and that by the laws of New York it is confined within similar\nbounds. Fourth. The President can only adjourn the national legislature\nin the single case of disagreement about the time of adjournment.\nThe British monarch may prorogue or even dissolve the Parliament. The\ngovernor of New York may also prorogue the legislature of this State for\na limited time; a power which, in certain situations, may be employed to\nvery important purposes.\n\nThe President is to have power, with the advice and consent of the\nSenate, to make treaties, provided two thirds of the senators\npresent concur. The king of Great Britain is the sole and absolute\nrepresentative of the nation in all foreign transactions. He can of\nhis own accord make treaties of peace, commerce, alliance, and of every\nother description. It has been insinuated, that his authority in this\nrespect is not conclusive, and that his conventions with foreign powers\nare subject to the revision, and stand in need of the ratification, of\nParliament. But I believe this doctrine was never heard of, until it was\nbroached upon the present occasion. Every jurist(2) of that kingdom,\nand every other man acquainted with its Constitution, knows, as an\nestablished fact, that the prerogative of making treaties exists in the\ncrown in its utmost plentitude; and that the compacts entered into\nby the royal authority have the most complete legal validity and\nperfection, independent of any other sanction. The Parliament, it is\ntrue, is sometimes seen employing itself in altering the existing laws\nto conform them to the stipulations in a new treaty; and this may have\npossibly given birth to the imagination, that its co-operation\nwas necessary to the obligatory efficacy of the treaty. But this\nparliamentary interposition proceeds from a different cause: from the\nnecessity of adjusting a most artificial and intricate system of revenue\nand commercial laws, to the changes made in them by the operation of the\ntreaty; and of adapting new provisions and precautions to the new state\nof things, to keep the machine from running into disorder. In this\nrespect, therefore, there is no comparison between the intended power of\nthe President and the actual power of the British sovereign. The one\ncan perform alone what the other can do only with the concurrence of a\nbranch of the legislature. It must be admitted, that, in this instance,\nthe power of the federal Executive would exceed that of any State\nExecutive. But this arises naturally from the sovereign power which\nrelates to treaties. If the Confederacy were to be dissolved, it would\nbecome a question, whether the Executives of the several States were not\nsolely invested with that delicate and important prerogative.\n\nThe President is also to be authorized to receive ambassadors and other\npublic ministers. This, though it has been a rich theme of declamation,\nis more a matter of dignity than of authority. It is a circumstance\nwhich will be without consequence in the administration of the\ngovernment; and it was far more convenient that it should be arranged\nin this manner, than that there should be a necessity of convening the\nlegislature, or one of its branches, upon every arrival of a foreign\nminister, though it were merely to take the place of a departed\npredecessor.\n\nThe President is to nominate, and, with the advice and consent of the\nSenate, to appoint ambassadors and other public ministers, judges of\nthe Supreme Court, and in general all officers of the United States\nestablished by law, and whose appointments are not otherwise provided\nfor by the Constitution. The king of Great Britain is emphatically and\ntruly styled the fountain of honor. He not only appoints to all offices,\nbut can create offices. He can confer titles of nobility at pleasure;\nand has the disposal of an immense number of church preferments. There\nis evidently a great inferiority in the power of the President, in this\nparticular, to that of the British king; nor is it equal to that of\nthe governor of New York, if we are to interpret the meaning of the\nconstitution of the State by the practice which has obtained under it.\nThe power of appointment is with us lodged in a council, composed of\nthe governor and four members of the Senate, chosen by the Assembly. The\ngovernor claims, and has frequently exercised, the right of nomination,\nand is entitled to a casting vote in the appointment. If he really has\nthe right of nominating, his authority is in this respect equal to that\nof the President, and exceeds it in the article of the casting vote. In\nthe national government, if the Senate should be divided, no appointment\ncould be made; in the government of New York, if the council should\nbe divided, the governor can turn the scale, and confirm his own\nnomination.(3) If we compare the publicity which must necessarily attend\nthe mode of appointment by the President and an entire branch of the\nnational legislature, with the privacy in the mode of appointment by the\ngovernor of New York, closeted in a secret apartment with at most\nfour, and frequently with only two persons; and if we at the same time\nconsider how much more easy it must be to influence the small number of\nwhich a council of appointment consists, than the considerable number of\nwhich the national Senate would consist, we cannot hesitate to pronounce\nthat the power of the chief magistrate of this State, in the disposition\nof offices, must, in practice, be greatly superior to that of the Chief\nMagistrate of the Union.\n\nHence it appears that, except as to the concurrent authority of the\nPresident in the article of treaties, it would be difficult to determine\nwhether that magistrate would, in the aggregate, possess more or\nless power than the Governor of New York. And it appears yet more\nunequivocally, that there is no pretense for the parallel which has been\nattempted between him and the king of Great Britain. But to render the\ncontrast in this respect still more striking, it may be of use to throw\nthe principal circumstances of dissimilitude into a closer group.\n\nThe President of the United States would be an officer elected by the\npeople for four years; the king of Great Britain is a perpetual and\nhereditary prince. The one would be amenable to personal punishment\nand disgrace; the person of the other is sacred and inviolable. The one\nwould have a qualified negative upon the acts of the legislative body;\nthe other has an absolute negative. The one would have a right to\ncommand the military and naval forces of the nation; the other, in\naddition to this right, possesses that of declaring war, and of raising\nand regulating fleets and armies by his own authority. The one would\nhave a concurrent power with a branch of the legislature in the\nformation of treaties; the other is the sole possessor of the power\nof making treaties. The one would have a like concurrent authority in\nappointing to offices; the other is the sole author of all appointments.\nThe one can confer no privileges whatever; the other can make denizens\nof aliens, noblemen of commoners; can erect corporations with all the\nrights incident to corporate bodies. The one can prescribe no rules\nconcerning the commerce or currency of the nation; the other is in\nseveral respects the arbiter of commerce, and in this capacity can\nestablish markets and fairs, can regulate weights and measures, can lay\nembargoes for a limited time, can coin money, can authorize or prohibit\nthe circulation of foreign coin. The one has no particle of spiritual\njurisdiction; the other is the supreme head and governor of the national\nchurch! What answer shall we give to those who would persuade us that\nthings so unlike resemble each other? The same that ought to be given to\nthose who tell us that a government, the whole power of which would be\nin the hands of the elective and periodical servants of the people, is\nan aristocracy, a monarchy, and a despotism.\n\nPUBLIUS\n\n1. A writer in a Pennsylvania paper, under the signature of TAMONY,\nhas asserted that the king of Great Britain owes his prerogative as\ncommander-in-chief to an annual mutiny bill. The truth is, on the\ncontrary, that his prerogative, in this respect, is immemorial, and\nwas only disputed, \"contrary to all reason and precedent,\" as Blackstone\nvol. i., page 262, expresses it, by the Long Parliament of Charles I.\nbut by the statute the 13th of Charles II., chap. 6, it was declared to\nbe in the king alone, for that the sole supreme government and command\nof the militia within his Majesty's realms and dominions, and of all\nforces by sea and land, and of all forts and places of strength,\nEVER WAS AND IS the undoubted right of his Majesty and his royal\npredecessors, kings and queens of England, and that both or either house\nof Parliament cannot nor ought to pretend to the same.\n\n2. Vide Blackstone's Commentaries, Vol I., p. 257.\n\n3. Candor, however, demands an acknowledgment that I do not think the\nclaim of the governor to a right of nomination well founded. Yet it is\nalways justifiable to reason from the practice of a government, till its\npropriety has been constitutionally questioned. And independent of this\nclaim, when we take into view the other considerations, and pursue them\nthrough all their consequences, we shall be inclined to draw much the\nsame conclusion.\n\n\n\n\nFEDERALIST No. 70\n\nThe Executive Department Further Considered\n\nFrom The Independent Journal. Saturday, March 15, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHERE is an idea, which is not without its advocates, that a vigorous\nExecutive is inconsistent with the genius of republican government. The\nenlightened well-wishers to this species of government must at least\nhope that the supposition is destitute of foundation; since they\ncan never admit its truth, without at the same time admitting the\ncondemnation of their own principles. Energy in the Executive is a\nleading character in the definition of good government. It is essential\nto the protection of the community against foreign attacks; it is\nnot less essential to the steady administration of the laws; to\nthe protection of property against those irregular and high-handed\ncombinations which sometimes interrupt the ordinary course of justice;\nto the security of liberty against the enterprises and assaults of\nambition, of faction, and of anarchy. Every man the least conversant in\nRoman story, knows how often that republic was obliged to take refuge\nin the absolute power of a single man, under the formidable title of\nDictator, as well against the intrigues of ambitious individuals who\naspired to the tyranny, and the seditions of whole classes of the\ncommunity whose conduct threatened the existence of all government, as\nagainst the invasions of external enemies who menaced the conquest and\ndestruction of Rome.\n\nThere can be no need, however, to multiply arguments or examples on this\nhead. A feeble Executive implies a feeble execution of the government.\nA feeble execution is but another phrase for a bad execution; and a\ngovernment ill executed, whatever it may be in theory, must be, in\npractice, a bad government.\n\nTaking it for granted, therefore, that all men of sense will agree in\nthe necessity of an energetic Executive, it will only remain to inquire,\nwhat are the ingredients which constitute this energy? How far can they\nbe combined with those other ingredients which constitute safety in the\nrepublican sense? And how far does this combination characterize the\nplan which has been reported by the convention?\n\nThe ingredients which constitute energy in the Executive are, first,\nunity; secondly, duration; thirdly, an adequate provision for its\nsupport; fourthly, competent powers.\n\nThe ingredients which constitute safety in the republican sense are,\nfirst, a due dependence on the people, secondly, a due responsibility.\n\nThose politicians and statesmen who have been the most celebrated for\nthe soundness of their principles and for the justice of their views,\nhave declared in favor of a single Executive and a numerous legislature.\nThey have with great propriety, considered energy as the most necessary\nqualification of the former, and have regarded this as most applicable\nto power in a single hand, while they have, with equal propriety,\nconsidered the latter as best adapted to deliberation and wisdom, and\nbest calculated to conciliate the confidence of the people and to secure\ntheir privileges and interests.\n\nThat unity is conducive to energy will not be disputed. Decision,\nactivity, secrecy, and despatch will generally characterize the\nproceedings of one man in a much more eminent degree than the\nproceedings of any greater number; and in proportion as the number is\nincreased, these qualities will be diminished.\n\nThis unity may be destroyed in two ways: either by vesting the power in\ntwo or more magistrates of equal dignity and authority; or by vesting it\nostensibly in one man, subject, in whole or in part, to the control and\nco-operation of others, in the capacity of counsellors to him. Of the\nfirst, the two Consuls of Rome may serve as an example; of the last, we\nshall find examples in the constitutions of several of the States. New\nYork and New Jersey, if I recollect right, are the only States which\nhave intrusted the executive authority wholly to single men.(1) Both\nthese methods of destroying the unity of the Executive have their\npartisans; but the votaries of an executive council are the most\nnumerous. They are both liable, if not to equal, to similar objections,\nand may in most lights be examined in conjunction.\n\nThe experience of other nations will afford little instruction on this\nhead. As far, however, as it teaches any thing, it teaches us not to be\nenamoured of plurality in the Executive. We have seen that the Achaeans,\non an experiment of two Praetors, were induced to abolish one. The Roman\nhistory records many instances of mischiefs to the republic from the\ndissensions between the Consuls, and between the military Tribunes, who\nwere at times substituted for the Consuls. But it gives us no specimens\nof any peculiar advantages derived to the state from the circumstance\nof the plurality of those magistrates. That the dissensions between them\nwere not more frequent or more fatal, is a matter of astonishment, until\nwe advert to the singular position in which the republic was almost\ncontinually placed, and to the prudent policy pointed out by the\ncircumstances of the state, and pursued by the Consuls, of making a\ndivision of the government between them. The patricians engaged in a\nperpetual struggle with the plebeians for the preservation of their\nancient authorities and dignities; the Consuls, who were generally\nchosen out of the former body, were commonly united by the personal\ninterest they had in the defense of the privileges of their order. In\naddition to this motive of union, after the arms of the republic had\nconsiderably expanded the bounds of its empire, it became an established\ncustom with the Consuls to divide the administration between themselves\nby lot--one of them remaining at Rome to govern the city and its\nenvirons, the other taking the command in the more distant provinces.\nThis expedient must, no doubt, have had great influence in preventing\nthose collisions and rivalships which might otherwise have embroiled the\npeace of the republic.\n\nBut quitting the dim light of historical research, attaching ourselves\npurely to the dictates of reason and good sense, we shall discover much\ngreater cause to reject than to approve the idea of plurality in the\nExecutive, under any modification whatever.\n\nWherever two or more persons are engaged in any common enterprise or\npursuit, there is always danger of difference of opinion. If it be a\npublic trust or office, in which they are clothed with equal dignity\nand authority, there is peculiar danger of personal emulation and even\nanimosity. From either, and especially from all these causes, the most\nbitter dissensions are apt to spring. Whenever these happen, they lessen\nthe respectability, weaken the authority, and distract the plans and\noperation of those whom they divide. If they should unfortunately assail\nthe supreme executive magistracy of a country, consisting of a plurality\nof persons, they might impede or frustrate the most important measures\nof the government, in the most critical emergencies of the state.\nAnd what is still worse, they might split the community into the\nmost violent and irreconcilable factions, adhering differently to the\ndifferent individuals who composed the magistracy.\n\nMen often oppose a thing, merely because they have had no agency in\nplanning it, or because it may have been planned by those whom\nthey dislike. But if they have been consulted, and have happened\nto disapprove, opposition then becomes, in their estimation, an\nindispensable duty of self-love. They seem to think themselves bound in\nhonor, and by all the motives of personal infallibility, to defeat the\nsuccess of what has been resolved upon contrary to their sentiments. Men\nof upright, benevolent tempers have too many opportunities of remarking,\nwith horror, to what desperate lengths this disposition is sometimes\ncarried, and how often the great interests of society are sacrificed\nto the vanity, to the conceit, and to the obstinacy of individuals, who\nhave credit enough to make their passions and their caprices interesting\nto mankind. Perhaps the question now before the public may, in its\nconsequences, afford melancholy proofs of the effects of this despicable\nfrailty, or rather detestable vice, in the human character.\n\nUpon the principles of a free government, inconveniences from the source\njust mentioned must necessarily be submitted to in the formation of the\nlegislature; but it is unnecessary, and therefore unwise, to introduce\nthem into the constitution of the Executive. It is here too that they\nmay be most pernicious. In the legislature, promptitude of decision\nis oftener an evil than a benefit. The differences of opinion, and the\njarrings of parties in that department of the government, though they\nmay sometimes obstruct salutary plans, yet often promote deliberation\nand circumspection, and serve to check excesses in the majority. When\na resolution too is once taken, the opposition must be at an end. That\nresolution is a law, and resistance to it punishable. But no favorable\ncircumstances palliate or atone for the disadvantages of dissension in\nthe executive department. Here, they are pure and unmixed. There is no\npoint at which they cease to operate. They serve to embarrass and weaken\nthe execution of the plan or measure to which they relate, from the\nfirst step to the final conclusion of it. They constantly counteract\nthose qualities in the Executive which are the most necessary\ningredients in its composition--vigor and expedition, and this without\nany counterbalancing good. In the conduct of war, in which the energy of\nthe Executive is the bulwark of the national security, every thing would\nbe to be apprehended from its plurality.\n\nIt must be confessed that these observations apply with principal weight\nto the first case supposed--that is, to a plurality of magistrates of\nequal dignity and authority a scheme, the advocates for which are not\nlikely to form a numerous sect; but they apply, though not with\nequal, yet with considerable weight to the project of a council, whose\nconcurrence is made constitutionally necessary to the operations of the\nostensible Executive. An artful cabal in that council would be able to\ndistract and to enervate the whole system of administration. If no such\ncabal should exist, the mere diversity of views and opinions would alone\nbe sufficient to tincture the exercise of the executive authority with a\nspirit of habitual feebleness and dilatoriness.\n\n(But one of the weightiest objections to a plurality in the Executive,\nand which lies as much against the last as the first plan, is, that it\ntends to conceal faults and destroy responsibility. Responsibility is of\ntwo kinds--to censure and to punishment. The first is the more important\nof the two, especially in an elective office. Man, in public trust, will\nmuch oftener act in such a manner as to render him unworthy of being any\nlonger trusted, than in such a manner as to make him obnoxious to\nlegal punishment. But the multiplication of the Executive adds to the\ndifficulty of detection in either case. It often becomes impossible,\namidst mutual accusations, to determine on whom the blame or the\npunishment of a pernicious measure, or series of pernicious measures,\nought really to fall. It is shifted from one to another with so much\ndexterity, and under such plausible appearances, that the public opinion\nis left in suspense about the real author. The circumstances which may\nhave led to any national miscarriage or misfortune are sometimes so\ncomplicated that, where there are a number of actors who may have had\ndifferent degrees and kinds of agency, though we may clearly see upon\nthe whole that there has been mismanagement, yet it may be impracticable\nto pronounce to whose account the evil which may have been incurred is\ntruly chargeable.)(E1)\n\n(But one of the weightiest objections to a plurality in the Executive,\nand which lies as much against the last as the first plan, is, that it\ntends to conceal faults and destroy responsibility.\n\nResponsibility is of two kinds--to censure and to punishment. The first\nis the more important of the two, especially in an elective office. Man,\nin public trust, will much oftener act in such a manner as to render him\nunworthy of being any longer trusted, than in such a manner as to\nmake him obnoxious to legal punishment. But the multiplication of the\nExecutive adds to the difficulty of detection in either case. It often\nbecomes impossible, amidst mutual accusations, to determine on whom the\nblame or the punishment of a pernicious measure, or series of pernicious\nmeasures, ought really to fall. It is shifted from one to another with\nso much dexterity, and under such plausible appearances, that the public\nopinion is left in suspense about the real author. The circumstances\nwhich may have led to any national miscarriage or misfortune are\nsometimes so complicated that, where there are a number of actors\nwho may have had different degrees and kinds of agency, though we may\nclearly see upon the whole that there has been mismanagement, yet it may\nbe impracticable to pronounce to whose account the evil which may have\nbeen incurred is truly chargeable.)(E1)\n\n\"I was overruled by my council. The council were so divided in their\nopinions that it was impossible to obtain any better resolution on the\npoint.\" These and similar pretexts are constantly at hand, whether true\nor false. And who is there that will either take the trouble or\nincur the odium, of a strict scrutiny into the secret springs of the\ntransaction? Should there be found a citizen zealous enough to undertake\nthe unpromising task, if there happen to be collusion between the\nparties concerned, how easy it is to clothe the circumstances with so\nmuch ambiguity, as to render it uncertain what was the precise conduct\nof any of those parties?\n\nIn the single instance in which the governor of this State is coupled\nwith a council--that is, in the appointment to offices, we have seen\nthe mischiefs of it in the view now under consideration. Scandalous\nappointments to important offices have been made. Some cases, indeed,\nhave been so flagrant that ALL PARTIES have agreed in the impropriety\nof the thing. When inquiry has been made, the blame has been laid by the\ngovernor on the members of the council, who, on their part, have charged\nit upon his nomination; while the people remain altogether at a loss\nto determine, by whose influence their interests have been committed\nto hands so unqualified and so manifestly improper. In tenderness to\nindividuals, I forbear to descend to particulars.\n\nIt is evident from these considerations, that the plurality of the\nExecutive tends to deprive the people of the two greatest securities\nthey can have for the faithful exercise of any delegated power, first,\nthe restraints of public opinion, which lose their efficacy, as well on\naccount of the division of the censure attendant on bad measures among a\nnumber, as on account of the uncertainty on whom it ought to fall; and,\nsecond, the opportunity of discovering with facility and clearness the\nmisconduct of the persons they trust, in order either to their removal\nfrom office or to their actual punishment in cases which admit of it.\n\nIn England, the king is a perpetual magistrate; and it is a maxim which\nhas obtained for the sake of the public peace, that he is unaccountable\nfor his administration, and his person sacred. Nothing, therefore, can\nbe wiser in that kingdom, than to annex to the king a constitutional\ncouncil, who may be responsible to the nation for the advice they give.\nWithout this, there would be no responsibility whatever in the executive\ndepartment an idea inadmissible in a free government. But even there\nthe king is not bound by the resolutions of his council, though they are\nanswerable for the advice they give. He is the absolute master of his\nown conduct in the exercise of his office, and may observe or disregard\nthe counsel given to him at his sole discretion.\n\nBut in a republic, where every magistrate ought to be personally\nresponsible for his behavior in office the reason which in the British\nConstitution dictates the propriety of a council, not only ceases to\napply, but turns against the institution. In the monarchy of Great\nBritain, it furnishes a substitute for the prohibited responsibility of\nthe chief magistrate, which serves in some degree as a hostage to the\nnational justice for his good behavior. In the American republic, it\nwould serve to destroy, or would greatly diminish, the intended and\nnecessary responsibility of the Chief Magistrate himself.\n\nThe idea of a council to the Executive, which has so generally obtained\nin the State constitutions, has been derived from that maxim of\nrepublican jealousy which considers power as safer in the hands of a\nnumber of men than of a single man. If the maxim should be admitted to\nbe applicable to the case, I should contend that the advantage on that\nside would not counterbalance the numerous disadvantages on the opposite\nside. But I do not think the rule at all applicable to the executive\npower. I clearly concur in opinion, in this particular, with a\nwriter whom the celebrated Junius pronounces to be \"deep, solid, and\ningenious,\" that \"the executive power is more easily confined when it\nis ONE\";(2) that it is far more safe there should be a single object for\nthe jealousy and watchfulness of the people; and, in a word, that all\nmultiplication of the Executive is rather dangerous than friendly to\nliberty.\n\nA little consideration will satisfy us, that the species of security\nsought for in the multiplication of the Executive, is unattainable.\nNumbers must be so great as to render combination difficult, or they\nare rather a source of danger than of security. The united credit and\ninfluence of several individuals must be more formidable to liberty,\nthan the credit and influence of either of them separately. When power,\ntherefore, is placed in the hands of so small a number of men, as to\nadmit of their interests and views being easily combined in a common\nenterprise, by an artful leader, it becomes more liable to abuse, and\nmore dangerous when abused, than if it be lodged in the hands of one\nman; who, from the very circumstance of his being alone, will be more\nnarrowly watched and more readily suspected, and who cannot unite so\ngreat a mass of influence as when he is associated with others. The\nDecemvirs of Rome, whose name denotes their number,(3) were more to be\ndreaded in their usurpation than any ONE of them would have been. No\nperson would think of proposing an Executive much more numerous than\nthat body; from six to a dozen have been suggested for the number of\nthe council. The extreme of these numbers, is not too great for an easy\ncombination; and from such a combination America would have more to\nfear, than from the ambition of any single individual. A council to a\nmagistrate, who is himself responsible for what he does, are generally\nnothing better than a clog upon his good intentions, are often the\ninstruments and accomplices of his bad and are almost always a cloak to\nhis faults.\n\nI forbear to dwell upon the subject of expense; though it be evident\nthat if the council should be numerous enough to answer the principal\nend aimed at by the institution, the salaries of the members, who must\nbe drawn from their homes to reside at the seat of government, would\nform an item in the catalogue of public expenditures too serious to be\nincurred for an object of equivocal utility. I will only add that, prior\nto the appearance of the Constitution, I rarely met with an intelligent\nman from any of the States, who did not admit, as the result of\nexperience, that the UNITY of the executive of this State was one of the\nbest of the distinguishing features of our constitution.\n\nPUBLIUS\n\n1. New York has no council except for the single purpose of appointing\nto offices; New Jersey has a council whom the governor may consult. But\nI think, from the terms of the constitution, their resolutions do not\nbind him.\n\n2. De Lolme.\n\n3. Ten.\n\nE1. Two versions of these paragraphs appear in different editions.\n\n\n\n\nFEDERALIST No. 71\n\nThe Duration in Office of the Executive\n\nFrom the New York Packet. Tuesday, March 18, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nDURATION in office has been mentioned as the second requisite to the\nenergy of the Executive authority. This has relation to two objects: to\nthe personal firmness of the executive magistrate, in the employment\nof his constitutional powers; and to the stability of the system of\nadministration which may have been adopted under his auspices. With\nregard to the first, it must be evident, that the longer the duration in\noffice, the greater will be the probability of obtaining so important an\nadvantage. It is a general principle of human nature, that a man will\nbe interested in whatever he possesses, in proportion to the firmness or\nprecariousness of the tenure by which he holds it; will be less attached\nto what he holds by a momentary or uncertain title, than to what he\nenjoys by a durable or certain title; and, of course, will be willing to\nrisk more for the sake of the one, than for the sake of the other. This\nremark is not less applicable to a political privilege, or honor, or\ntrust, than to any article of ordinary property. The inference from\nit is, that a man acting in the capacity of chief magistrate, under a\nconsciousness that in a very short time he MUST lay down his office,\nwill be apt to feel himself too little interested in it to hazard any\nmaterial censure or perplexity, from the independent exertion of his\npowers, or from encountering the ill-humors, however transient, which\nmay happen to prevail, either in a considerable part of the society\nitself, or even in a predominant faction in the legislative body. If the\ncase should only be, that he MIGHT lay it down, unless continued by a\nnew choice, and if he should be desirous of being continued, his wishes,\nconspiring with his fears, would tend still more powerfully to corrupt\nhis integrity, or debase his fortitude. In either case, feebleness and\nirresolution must be the characteristics of the station.\n\nThere are some who would be inclined to regard the servile pliancy of\nthe Executive to a prevailing current, either in the community or in\nthe legislature, as its best recommendation. But such men entertain\nvery crude notions, as well of the purposes for which government was\ninstituted, as of the true means by which the public happiness may be\npromoted. The republican principle demands that the deliberate sense of\nthe community should govern the conduct of those to whom they intrust\nthe management of their affairs; but it does not require an unqualified\ncomplaisance to every sudden breeze of passion, or to every transient\nimpulse which the people may receive from the arts of men, who flatter\ntheir prejudices to betray their interests. It is a just observation,\nthat the people commonly INTEND the PUBLIC GOOD. This often applies to\ntheir very errors. But their good sense would despise the adulator\nwho should pretend that they always REASON RIGHT about the MEANS of\npromoting it. They know from experience that they sometimes err; and the\nwonder is that they so seldom err as they do, beset, as they continually\nare, by the wiles of parasites and sycophants, by the snares of the\nambitious, the avaricious, the desperate, by the artifices of men who\npossess their confidence more than they deserve it, and of those who\nseek to possess rather than to deserve it. When occasions present\nthemselves, in which the interests of the people are at variance\nwith their inclinations, it is the duty of the persons whom they have\nappointed to be the guardians of those interests, to withstand the\ntemporary delusion, in order to give them time and opportunity for more\ncool and sedate reflection. Instances might be cited in which a conduct\nof this kind has saved the people from very fatal consequences of their\nown mistakes, and has procured lasting monuments of their gratitude\nto the men who had courage and magnanimity enough to serve them at the\nperil of their displeasure.\n\nBut however inclined we might be to insist upon an unbounded\ncomplaisance in the Executive to the inclinations of the people, we can\nwith no propriety contend for a like complaisance to the humors of the\nlegislature. The latter may sometimes stand in opposition to the\nformer, and at other times the people may be entirely neutral. In either\nsupposition, it is certainly desirable that the Executive should be in a\nsituation to dare to act his own opinion with vigor and decision.\n\nThe same rule which teaches the propriety of a partition between the\nvarious branches of power, teaches us likewise that this partition ought\nto be so contrived as to render the one independent of the other.\nTo what purpose separate the executive or the judiciary from the\nlegislative, if both the executive and the judiciary are so constituted\nas to be at the absolute devotion of the legislative? Such a separation\nmust be merely nominal, and incapable of producing the ends for which\nit was established. It is one thing to be subordinate to the laws, and\nanother to be dependent on the legislative body. The first comports\nwith, the last violates, the fundamental principles of good government;\nand, whatever may be the forms of the Constitution, unites all power\nin the same hands. The tendency of the legislative authority to absorb\nevery other, has been fully displayed and illustrated by examples in\nsome preceding numbers. In governments purely republican, this tendency\nis almost irresistible. The representatives of the people, in a popular\nassembly, seem sometimes to fancy that they are the people themselves,\nand betray strong symptoms of impatience and disgust at the least sign\nof opposition from any other quarter; as if the exercise of its rights,\nby either the executive or judiciary, were a breach of their privilege\nand an outrage to their dignity. They often appear disposed to exert an\nimperious control over the other departments; and as they commonly have\nthe people on their side, they always act with such momentum as to make\nit very difficult for the other members of the government to maintain\nthe balance of the Constitution.\n\nIt may perhaps be asked, how the shortness of the duration in office can\naffect the independence of the Executive on the legislature, unless the\none were possessed of the power of appointing or displacing the other.\nOne answer to this inquiry may be drawn from the principle already\nremarked that is, from the slender interest a man is apt to take in\na short-lived advantage, and the little inducement it affords him to\nexpose himself, on account of it, to any considerable inconvenience\nor hazard. Another answer, perhaps more obvious, though not more\nconclusive, will result from the consideration of the influence of the\nlegislative body over the people; which might be employed to prevent\nthe re-election of a man who, by an upright resistance to any sinister\nproject of that body, should have made himself obnoxious to its\nresentment.\n\nIt may be asked also, whether a duration of four years would answer the\nend proposed; and if it would not, whether a less period, which would\nat least be recommended by greater security against ambitious designs,\nwould not, for that reason, be preferable to a longer period, which was,\nat the same time, too short for the purpose of inspiring the desired\nfirmness and independence of the magistrate.\n\nIt cannot be affirmed, that a duration of four years, or any other\nlimited duration, would completely answer the end proposed; but it would\ncontribute towards it in a degree which would have a material\ninfluence upon the spirit and character of the government. Between the\ncommencement and termination of such a period, there would always be a\nconsiderable interval, in which the prospect of annihilation would be\nsufficiently remote, not to have an improper effect upon the conduct\nof a man indued with a tolerable portion of fortitude; and in which he\nmight reasonably promise himself, that there would be time enough before\nit arrived, to make the community sensible of the propriety of the\nmeasures he might incline to pursue. Though it be probable that, as\nhe approached the moment when the public were, by a new election, to\nsignify their sense of his conduct, his confidence, and with it his\nfirmness, would decline; yet both the one and the other would derive\nsupport from the opportunities which his previous continuance in the\nstation had afforded him, of establishing himself in the esteem and\ngood-will of his constituents. He might, then, hazard with safety, in\nproportion to the proofs he had given of his wisdom and integrity,\nand to the title he had acquired to the respect and attachment of his\nfellow-citizens. As, on the one hand, a duration of four years will\ncontribute to the firmness of the Executive in a sufficient degree to\nrender it a very valuable ingredient in the composition; so, on the\nother, it is not enough to justify any alarm for the public liberty. If\na British House of Commons, from the most feeble beginnings, FROM THE\nMERE POWER OF ASSENTING OR DISAGREEING TO THE IMPOSITION OF A NEW TAX,\nhave, by rapid strides, reduced the prerogatives of the crown and\nthe privileges of the nobility within the limits they conceived to be\ncompatible with the principles of a free government, while they raised\nthemselves to the rank and consequence of a coequal branch of the\nlegislature; if they have been able, in one instance, to abolish\nboth the royalty and the aristocracy, and to overturn all the ancient\nestablishments, as well in the Church as State; if they have been able,\non a recent occasion, to make the monarch tremble at the prospect of\nan innovation(1) attempted by them, what would be to be feared from\nan elective magistrate of four years' duration, with the confined\nauthorities of a President of the United States? What, but that he might\nbe unequal to the task which the Constitution assigns him? I shall only\nadd, that if his duration be such as to leave a doubt of his firmness,\nthat doubt is inconsistent with a jealousy of his encroachments.\n\nPUBLIUS\n\n1. This was the case with respect to Mr. Fox's India bill, which was\ncarried in the House of Commons, and rejected in the House of Lords, to\nthe entire satisfaction, as it is said, of the people.\n\n\n\n\nFEDERALIST No. 72\n\nThe Same Subject Continued, and Re-Eligibility of the Executive\nConsidered.\n\nFrom The Independent Journal. Wednesday, March 19, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE administration of government, in its largest sense, comprehends all\nthe operations of the body politic, whether legislative, executive,\nor judiciary; but in its most usual, and perhaps its most precise\nsignification. it is limited to executive details, and falls peculiarly\nwithin the province of the executive department. The actual conduct of\nforeign negotiations, the preparatory plans of finance, the application\nand disbursement of the public moneys in conformity to the general\nappropriations of the legislature, the arrangement of the army and navy,\nthe directions of the operations of war--these, and other matters of a\nlike nature, constitute what seems to be most properly understood by the\nadministration of government. The persons, therefore, to whose immediate\nmanagement these different matters are committed, ought to be considered\nas the assistants or deputies of the chief magistrate, and on this\naccount, they ought to derive their offices from his appointment,\nat least from his nomination, and ought to be subject to his\nsuperintendence. This view of the subject will at once suggest to us the\nintimate connection between the duration of the executive magistrate in\noffice and the stability of the system of administration. To reverse and\nundo what has been done by a predecessor, is very often considered by a\nsuccessor as the best proof he can give of his own capacity and desert;\nand in addition to this propensity, where the alteration has been\nthe result of public choice, the person substituted is warranted in\nsupposing that the dismission of his predecessor has proceeded from a\ndislike to his measures; and that the less he resembles him, the more\nhe will recommend himself to the favor of his constituents. These\nconsiderations, and the influence of personal confidences and\nattachments, would be likely to induce every new President to promote\na change of men to fill the subordinate stations; and these causes\ntogether could not fail to occasion a disgraceful and ruinous mutability\nin the administration of the government.\n\nWith a positive duration of considerable extent, I connect the\ncircumstance of re-eligibility. The first is necessary to give to the\nofficer himself the inclination and the resolution to act his part well,\nand to the community time and leisure to observe the tendency of his\nmeasures, and thence to form an experimental estimate of their merits.\nThe last is necessary to enable the people, when they see reason to\napprove of his conduct, to continue him in his station, in order to\nprolong the utility of his talents and virtues, and to secure to\nthe government the advantage of permanency in a wise system of\nadministration.\n\nNothing appears more plausible at first sight, nor more ill-founded upon\nclose inspection, than a scheme which in relation to the present point\nhas had some respectable advocates--I mean that of continuing the chief\nmagistrate in office for a certain time, and then excluding him from it,\neither for a limited period or forever after. This exclusion, whether\ntemporary or perpetual, would have nearly the same effects, and these\neffects would be for the most part rather pernicious than salutary.\n\nOne ill effect of the exclusion would be a diminution of the inducements\nto good behavior. There are few men who would not feel much less zeal in\nthe discharge of a duty when they were conscious that the advantages\nof the station with which it was connected must be relinquished at a\ndeterminate period, than when they were permitted to entertain a hope of\nobtaining, by meriting, a continuance of them. This position will not be\ndisputed so long as it is admitted that the desire of reward is one of\nthe strongest incentives of human conduct; or that the best security for\nthe fidelity of mankind is to make their interests coincide with their\nduty. Even the love of fame, the ruling passion of the noblest minds,\nwhich would prompt a man to plan and undertake extensive and arduous\nenterprises for the public benefit, requiring considerable time to\nmature and perfect them, if he could flatter himself with the prospect\nof being allowed to finish what he had begun, would, on the contrary,\ndeter him from the undertaking, when he foresaw that he must quit\nthe scene before he could accomplish the work, and must commit that,\ntogether with his own reputation, to hands which might be unequal or\nunfriendly to the task. The most to be expected from the generality\nof men, in such a situation, is the negative merit of not doing harm,\ninstead of the positive merit of doing good.\n\nAnother ill effect of the exclusion would be the temptation to sordid\nviews, to peculation, and, in some instances, to usurpation. An\navaricious man, who might happen to fill the office, looking forward to\na time when he must at all events yield up the emoluments he enjoyed,\nwould feel a propensity, not easy to be resisted by such a man, to make\nthe best use of the opportunity he enjoyed while it lasted, and might\nnot scruple to have recourse to the most corrupt expedients to make the\nharvest as abundant as it was transitory; though the same man, probably,\nwith a different prospect before him, might content himself with the\nregular perquisites of his situation, and might even be unwilling to\nrisk the consequences of an abuse of his opportunities. His avarice\nmight be a guard upon his avarice. Add to this that the same man might\nbe vain or ambitious, as well as avaricious. And if he could expect to\nprolong his honors by his good conduct, he might hesitate to sacrifice\nhis appetite for them to his appetite for gain. But with the prospect\nbefore him of approaching an inevitable annihilation, his avarice\nwould be likely to get the victory over his caution, his vanity, or his\nambition.\n\nAn ambitious man, too, when he found himself seated on the summit of his\ncountry's honors, when he looked forward to the time at which he must\ndescend from the exalted eminence for ever, and reflected that no\nexertion of merit on his part could save him from the unwelcome reverse;\nsuch a man, in such a situation, would be much more violently tempted to\nembrace a favorable conjuncture for attempting the prolongation of\nhis power, at every personal hazard, than if he had the probability of\nanswering the same end by doing his duty.\n\nWould it promote the peace of the community, or the stability of the\ngovernment to have half a dozen men who had had credit enough to be\nraised to the seat of the supreme magistracy, wandering among the\npeople like discontented ghosts, and sighing for a place which they were\ndestined never more to possess?\n\nA third ill effect of the exclusion would be, the depriving the\ncommunity of the advantage of the experience gained by the chief\nmagistrate in the exercise of his office. That experience is the parent\nof wisdom, is an adage the truth of which is recognized by the wisest as\nwell as the simplest of mankind. What more desirable or more essential\nthan this quality in the governors of nations? Where more desirable or\nmore essential than in the first magistrate of a nation? Can it be\nwise to put this desirable and essential quality under the ban of\nthe Constitution, and to declare that the moment it is acquired, its\npossessor shall be compelled to abandon the station in which it was\nacquired, and to which it is adapted? This, nevertheless, is the precise\nimport of all those regulations which exclude men from serving their\ncountry, by the choice of their fellowcitizens, after they have by a\ncourse of service fitted themselves for doing it with a greater degree\nof utility.\n\nA fourth ill effect of the exclusion would be the banishing men from\nstations in which, in certain emergencies of the state, their presence\nmight be of the greatest moment to the public interest or safety. There\nis no nation which has not, at one period or another, experienced an\nabsolute necessity of the services of particular men in particular\nsituations; perhaps it would not be too strong to say, to the\npreservation of its political existence. How unwise, therefore, must be\nevery such self-denying ordinance as serves to prohibit a nation\nfrom making use of its own citizens in the manner best suited to\nits exigencies and circumstances! Without supposing the personal\nessentiality of the man, it is evident that a change of the chief\nmagistrate, at the breaking out of a war, or at any similar crisis, for\nanother, even of equal merit, would at all times be detrimental to the\ncommunity, inasmuch as it would substitute inexperience to experience,\nand would tend to unhinge and set afloat the already settled train of\nthe administration.\n\nA fifth ill effect of the exclusion would be, that it would operate as\na constitutional interdiction of stability in the administration. By\nnecessitating a change of men, in the first office of the nation, it\nwould necessitate a mutability of measures. It is not generally to be\nexpected, that men will vary and measures remain uniform. The contrary\nis the usual course of things. And we need not be apprehensive that\nthere will be too much stability, while there is even the option of\nchanging; nor need we desire to prohibit the people from continuing\ntheir confidence where they think it may be safely placed, and where,\nby constancy on their part, they may obviate the fatal inconveniences of\nfluctuating councils and a variable policy.\n\nThese are some of the disadvantages which would flow from the principle\nof exclusion. They apply most forcibly to the scheme of a perpetual\nexclusion; but when we consider that even a partial exclusion would\nalways render the readmission of the person a remote and precarious\nobject, the observations which have been made will apply nearly as fully\nto one case as to the other.\n\nWhat are the advantages promised to counterbalance these disadvantages?\nThey are represented to be: 1st, greater independence in the magistrate;\n2d, greater security to the people. Unless the exclusion be perpetual,\nthere will be no pretense to infer the first advantage. But even in that\ncase, may he have no object beyond his present station, to which he may\nsacrifice his independence? May he have no connections, no friends, for\nwhom he may sacrifice it? May he not be less willing by a firm conduct,\nto make personal enemies, when he acts under the impression that a time\nis fast approaching, on the arrival of which he not only MAY, but\nMUST, be exposed to their resentments, upon an equal, perhaps upon an\ninferior, footing? It is not an easy point to determine whether his\nindependence would be most promoted or impaired by such an arrangement.\n\nAs to the second supposed advantage, there is still greater reason to\nentertain doubts concerning it. If the exclusion were to be perpetual,\na man of irregular ambition, of whom alone there could be reason in any\ncase to entertain apprehension, would, with infinite reluctance, yield\nto the necessity of taking his leave forever of a post in which his\npassion for power and pre-eminence had acquired the force of habit. And\nif he had been fortunate or adroit enough to conciliate the good-will\nof the people, he might induce them to consider as a very odious\nand unjustifiable restraint upon themselves, a provision which was\ncalculated to debar them of the right of giving a fresh proof of their\nattachment to a favorite. There may be conceived circumstances in which\nthis disgust of the people, seconding the thwarted ambition of such\na favorite, might occasion greater danger to liberty, than could ever\nreasonably be dreaded from the possibility of a perpetuation in office,\nby the voluntary suffrages of the community, exercising a constitutional\nprivilege.\n\nThere is an excess of refinement in the idea of disabling the people to\ncontinue in office men who had entitled themselves, in their opinion,\nto approbation and confidence; the advantages of which are at best\nspeculative and equivocal, and are overbalanced by disadvantages far\nmore certain and decisive.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 73\n\nThe Provision For The Support of the Executive, and the Veto Power\n\nFrom the New York Packet. Friday, March 21, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE third ingredient towards constituting the vigor of the executive\nauthority, is an adequate provision for its support. It is evident\nthat, without proper attention to this article, the separation of the\nexecutive from the legislative department would be merely nominal and\nnugatory. The legislature, with a discretionary power over the salary\nand emoluments of the Chief Magistrate, could render him as obsequious\nto their will as they might think proper to make him. They might, in\nmost cases, either reduce him by famine, or tempt him by largesses,\nto surrender at discretion his judgment to their inclinations. These\nexpressions, taken in all the latitude of the terms, would no doubt\nconvey more than is intended. There are men who could neither be\ndistressed nor won into a sacrifice of their duty; but this stern virtue\nis the growth of few soils; and in the main it will be found that\na power over a man's support is a power over his will. If it were\nnecessary to confirm so plain a truth by facts, examples would not be\nwanting, even in this country, of the intimidation or seduction of the\nExecutive by the terrors or allurements of the pecuniary arrangements of\nthe legislative body.\n\nIt is not easy, therefore, to commend too highly the judicious attention\nwhich has been paid to this subject in the proposed Constitution. It is\nthere provided that \"The President of the United States shall, at stated\ntimes, receive for his services a compensation which shall neither be\nincreased nor diminished during the period for which he shall have been\nelected; and he shall not receive within that period any other emolument\nfrom the United States, or any of them.\" It is impossible to imagine\nany provision which would have been more eligible than this. The\nlegislature, on the appointment of a President, is once for all to\ndeclare what shall be the compensation for his services during the time\nfor which he shall have been elected. This done, they will have no power\nto alter it, either by increase or diminution, till a new period\nof service by a new election commences. They can neither weaken his\nfortitude by operating on his necessities, nor corrupt his integrity\nby appealing to his avarice. Neither the Union, nor any of its members,\nwill be at liberty to give, nor will he be at liberty to receive, any\nother emolument than that which may have been determined by the first\nact. He can, of course, have no pecuniary inducement to renounce or\ndesert the independence intended for him by the Constitution.\n\nThe last of the requisites to energy, which have been enumerated, are\ncompetent powers. Let us proceed to consider those which are proposed to\nbe vested in the President of the United States.\n\nThe first thing that offers itself to our observation, is the qualified\nnegative of the President upon the acts or resolutions of the two houses\nof the legislature; or, in other words, his power of returning all bills\nwith objections, to have the effect of preventing their becoming laws,\nunless they should afterwards be ratified by two thirds of each of the\ncomponent members of the legislative body.\n\nThe propensity of the legislative department to intrude upon the rights,\nand to absorb the powers, of the other departments, has been already\nsuggested and repeated; the insufficiency of a mere parchment\ndelineation of the boundaries of each, has also been remarked upon; and\nthe necessity of furnishing each with constitutional arms for its own\ndefense, has been inferred and proved. From these clear and indubitable\nprinciples results the propriety of a negative, either absolute or\nqualified, in the Executive, upon the acts of the legislative branches.\nWithout the one or the other, the former would be absolutely unable\nto defend himself against the depredations of the latter. He might\ngradually be stripped of his authorities by successive resolutions,\nor annihilated by a single vote. And in the one mode or the other, the\nlegislative and executive powers might speedily come to be blended in\nthe same hands. If even no propensity had ever discovered itself in the\nlegislative body to invade the rights of the Executive, the rules of\njust reasoning and theoretic propriety would of themselves teach us,\nthat the one ought not to be left to the mercy of the other, but ought\nto possess a constitutional and effectual power of self-defense.\n\nBut the power in question has a further use. It not only serves as a\nshield to the Executive, but it furnishes an additional security against\nthe enaction of improper laws. It establishes a salutary check upon the\nlegislative body, calculated to guard the community against the effects\nof faction, precipitancy, or of any impulse unfriendly to the public\ngood, which may happen to influence a majority of that body.\n\nThe propriety of a negative has, upon some occasions, been combated\nby an observation, that it was not to be presumed a single man would\npossess more virtue and wisdom than a number of men; and that unless\nthis presumption should be entertained, it would be improper to give the\nexecutive magistrate any species of control over the legislative body.\n\nBut this observation, when examined, will appear rather specious than\nsolid. The propriety of the thing does not turn upon the supposition\nof superior wisdom or virtue in the Executive, but upon the supposition\nthat the legislature will not be infallible; that the love of power may\nsometimes betray it into a disposition to encroach upon the rights of\nother members of the government; that a spirit of faction may sometimes\npervert its deliberations; that impressions of the moment may sometimes\nhurry it into measures which itself, on maturer reflexion, would\ncondemn. The primary inducement to conferring the power in question upon\nthe Executive is, to enable him to defend himself; the secondary one is\nto increase the chances in favor of the community against the passing\nof bad laws, through haste, inadvertence, or design. The oftener the\nmeasure is brought under examination, the greater the diversity in the\nsituations of those who are to examine it, the less must be the danger\nof those errors which flow from want of due deliberation, or of those\nmissteps which proceed from the contagion of some common passion or\ninterest. It is far less probable, that culpable views of any kind\nshould infect all the parts of the government at the same moment and in\nrelation to the same object, than that they should by turns govern and\nmislead every one of them.\n\nIt may perhaps be said that the power of preventing bad laws includes\nthat of preventing good ones; and may be used to the one purpose as well\nas to the other. But this objection will have little weight with\nthose who can properly estimate the mischiefs of that inconstancy and\nmutability in the laws, which form the greatest blemish in the character\nand genius of our governments. They will consider every institution\ncalculated to restrain the excess of law-making, and to keep things in\nthe same state in which they happen to be at any given period, as much\nmore likely to do good than harm; because it is favorable to greater\nstability in the system of legislation. The injury which may possibly\nbe done by defeating a few good laws, will be amply compensated by the\nadvantage of preventing a number of bad ones.\n\nNor is this all. The superior weight and influence of the legislative\nbody in a free government, and the hazard to the Executive in a trial\nof strength with that body, afford a satisfactory security that the\nnegative would generally be employed with great caution; and there\nwould oftener be room for a charge of timidity than of rashness in the\nexercise of it. A king of Great Britain, with all his train of sovereign\nattributes, and with all the influence he draws from a thousand\nsources, would, at this day, hesitate to put a negative upon the joint\nresolutions of the two houses of Parliament. He would not fail to\nexert the utmost resources of that influence to strangle a measure\ndisagreeable to him, in its progress to the throne, to avoid being\nreduced to the dilemma of permitting it to take effect, or of risking\nthe displeasure of the nation by an opposition to the sense of the\nlegislative body. Nor is it probable, that he would ultimately venture\nto exert his prerogatives, but in a case of manifest propriety, or\nextreme necessity. All well-informed men in that kingdom will accede\nto the justness of this remark. A very considerable period has elapsed\nsince the negative of the crown has been exercised.\n\nIf a magistrate so powerful and so well fortified as a British monarch,\nwould have scruples about the exercise of the power under consideration,\nhow much greater caution may be reasonably expected in a President of\nthe United States, clothed for the short period of four years with the\nexecutive authority of a government wholly and purely republican?\n\nIt is evident that there would be greater danger of his not using his\npower when necessary, than of his using it too often, or too much. An\nargument, indeed, against its expediency, has been drawn from this very\nsource. It has been represented, on this account, as a power odious in\nappearance, useless in practice. But it will not follow, that because it\nmight be rarely exercised, it would never be exercised. In the case\nfor which it is chiefly designed, that of an immediate attack upon the\nconstitutional rights of the Executive, or in a case in which the public\ngood was evidently and palpably sacrificed, a man of tolerable firmness\nwould avail himself of his constitutional means of defense, and would\nlisten to the admonitions of duty and responsibility. In the former\nsupposition, his fortitude would be stimulated by his immediate interest\nin the power of his office; in the latter, by the probability of the\nsanction of his constituents, who, though they would naturally incline\nto the legislative body in a doubtful case, would hardly suffer their\npartiality to delude them in a very plain case. I speak now with an eye\nto a magistrate possessing only a common share of firmness. There are\nmen who, under any circumstances, will have the courage to do their duty\nat every hazard.\n\nBut the convention have pursued a mean in this business, which will\nboth facilitate the exercise of the power vested in this respect in the\nexecutive magistrate, and make its efficacy to depend on the sense of\na considerable part of the legislative body. Instead of an absolute\nnegative, it is proposed to give the Executive the qualified negative\nalready described. This is a power which would be much more readily\nexercised than the other. A man who might be afraid to defeat a law by\nhis single VETO, might not scruple to return it for reconsideration;\nsubject to being finally rejected only in the event of more than one\nthird of each house concurring in the sufficiency of his objections.\nHe would be encouraged by the reflection, that if his opposition should\nprevail, it would embark in it a very respectable proportion of the\nlegislative body, whose influence would be united with his in supporting\nthe propriety of his conduct in the public opinion. A direct and\ncategorical negative has something in the appearance of it more harsh,\nand more apt to irritate, than the mere suggestion of argumentative\nobjections to be approved or disapproved by those to whom they are\naddressed. In proportion as it would be less apt to offend, it would be\nmore apt to be exercised; and for this very reason, it may in practice\nbe found more effectual. It is to be hoped that it will not often happen\nthat improper views will govern so large a proportion as two thirds of\nboth branches of the legislature at the same time; and this, too, in\nspite of the counterposing weight of the Executive. It is at any rate\nfar less probable that this should be the case, than that such views\nshould taint the resolutions and conduct of a bare majority. A power of\nthis nature in the Executive, will often have a silent and unperceived,\nthough forcible, operation. When men, engaged in unjustifiable pursuits,\nare aware that obstructions may come from a quarter which they cannot\ncontrol, they will often be restrained by the bare apprehension of\nopposition, from doing what they would with eagerness rush into, if no\nsuch external impediments were to be feared.\n\nThis qualified negative, as has been elsewhere remarked, is in this\nState vested in a council, consisting of the governor, with the\nchancellor and judges of the Supreme Court, or any two of them. It has\nbeen freely employed upon a variety of occasions, and frequently with\nsuccess. And its utility has become so apparent, that persons who,\nin compiling the Constitution, were violent opposers of it, have from\nexperience become its declared admirers.(1)\n\nI have in another place remarked, that the convention, in the formation\nof this part of their plan, had departed from the model of the\nconstitution of this State, in favor of that of Massachusetts. Two\nstrong reasons may be imagined for this preference. One is that the\njudges, who are to be the interpreters of the law, might receive an\nimproper bias, from having given a previous opinion in their revisionary\ncapacities; the other is that by being often associated with the\nExecutive, they might be induced to embark too far in the political\nviews of that magistrate, and thus a dangerous combination might by\ndegrees be cemented between the executive and judiciary departments. It\nis impossible to keep the judges too distinct from every other avocation\nthan that of expounding the laws. It is peculiarly dangerous to\nplace them in a situation to be either corrupted or influenced by the\nExecutive.\n\nPUBLIUS\n\n1. Mr. Abraham Yates, a warm opponent of the plan of the convention is\nof this number.\n\n\n\n\nFEDERALIST No. 74\n\nThe Command of the Military and Naval Forces, and the Pardoning Power of\nthe Executive.\n\nFrom the New York Packet. Tuesday, March 25, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE President of the United States is to be \"commander-in-chief of the\narmy and navy of the United States, and of the militia of the several\nStates when called into the actual service of the United States.\" The\npropriety of this provision is so evident in itself, and it is, at the\nsame time, so consonant to the precedents of the State constitutions in\ngeneral, that little need be said to explain or enforce it. Even those\nof them which have, in other respects, coupled the chief magistrate with\na council, have for the most part concentrated the military authority in\nhim alone. Of all the cares or concerns of government, the direction\nof war most peculiarly demands those qualities which distinguish the\nexercise of power by a single hand. The direction of war implies\nthe direction of the common strength; and the power of directing and\nemploying the common strength, forms a usual and essential part in the\ndefinition of the executive authority.\n\n\"The President may require the opinion, in writing, of the principal\nofficer in each of the executive departments, upon any subject relating\nto the duties of their respective officers.\" This I consider as a mere\nredundancy in the plan, as the right for which it provides would result\nof itself from the office.\n\nHe is also to be authorized to grant \"reprieves and pardons for offenses\nagainst the United States, except in cases of impeachment.\" Humanity\nand good policy conspire to dictate, that the benign prerogative of\npardoning should be as little as possible fettered or embarrassed. The\ncriminal code of every country partakes so much of necessary severity,\nthat without an easy access to exceptions in favor of unfortunate guilt,\njustice would wear a countenance too sanguinary and cruel. As the sense\nof responsibility is always strongest, in proportion as it is undivided,\nit may be inferred that a single man would be most ready to attend to\nthe force of those motives which might plead for a mitigation of the\nrigor of the law, and least apt to yield to considerations which were\ncalculated to shelter a fit object of its vengeance. The reflection that\nthe fate of a fellow-creature depended on his sole fiat, would naturally\ninspire scrupulousness and caution; the dread of being accused of\nweakness or connivance, would beget equal circumspection, though of a\ndifferent kind. On the other hand, as men generally derive confidence\nfrom their numbers, they might often encourage each other in an act of\nobduracy, and might be less sensible to the apprehension of suspicion or\ncensure for an injudicious or affected clemency. On these accounts, one\nman appears to be a more eligible dispenser of the mercy of government,\nthan a body of men.\n\nThe expediency of vesting the power of pardoning in the President\nhas, if I mistake not, been only contested in relation to the crime of\ntreason. This, it has been urged, ought to have depended upon the assent\nof one, or both, of the branches of the legislative body. I shall not\ndeny that there are strong reasons to be assigned for requiring in this\nparticular the concurrence of that body, or of a part of it. As treason\nis a crime levelled at the immediate being of the society, when the laws\nhave once ascertained the guilt of the offender, there seems a fitness\nin referring the expediency of an act of mercy towards him to the\njudgment of the legislature. And this ought the rather to be the case,\nas the supposition of the connivance of the Chief Magistrate ought not\nto be entirely excluded. But there are also strong objections to such\na plan. It is not to be doubted, that a single man of prudence and good\nsense is better fitted, in delicate conjunctures, to balance the motives\nwhich may plead for and against the remission of the punishment, than\nany numerous body whatever. It deserves particular attention, that\ntreason will often be connected with seditions which embrace a large\nproportion of the community; as lately happened in Massachusetts. In\nevery such case, we might expect to see the representation of the people\ntainted with the same spirit which had given birth to the offense. And\nwhen parties were pretty equally matched, the secret sympathy of the\nfriends and favorers of the condemned person, availing itself of the\ngood-nature and weakness of others, might frequently bestow impunity\nwhere the terror of an example was necessary. On the other hand,\nwhen the sedition had proceeded from causes which had inflamed the\nresentments of the major party, they might often be found obstinate and\ninexorable, when policy demanded a conduct of forbearance and clemency.\nBut the principal argument for reposing the power of pardoning in this\ncase to the Chief Magistrate is this: in seasons of insurrection or\nrebellion, there are often critical moments, when a well-timed offer of\npardon to the insurgents or rebels may restore the tranquillity of the\ncommonwealth; and which, if suffered to pass unimproved, it may never\nbe possible afterwards to recall. The dilatory process of convening the\nlegislature, or one of its branches, for the purpose of obtaining its\nsanction to the measure, would frequently be the occasion of letting\nslip the golden opportunity. The loss of a week, a day, an hour, may\nsometimes be fatal. If it should be observed, that a discretionary\npower, with a view to such contingencies, might be occasionally\nconferred upon the President, it may be answered in the first place,\nthat it is questionable, whether, in a limited Constitution, that\npower could be delegated by law; and in the second place, that it would\ngenerally be impolitic beforehand to take any step which might hold out\nthe prospect of impunity. A proceeding of this kind, out of the usual\ncourse, would be likely to be construed into an argument of timidity or\nof weakness, and would have a tendency to embolden guilt.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 75\n\nThe Treaty-Making Power of the Executive\n\nFor the Independent Journal. Wednesday, March 26, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE President is to have power, \"by and with the advice and consent\nof the Senate, to make treaties, provided two thirds of the senators\npresent concur.\" Though this provision has been assailed, on different\ngrounds, with no small degree of vehemence, I scruple not to declare\nmy firm persuasion, that it is one of the best digested and most\nunexceptionable parts of the plan. One ground of objection is the trite\ntopic of the intermixture of powers; some contending that the President\nought alone to possess the power of making treaties; others, that it\nought to have been exclusively deposited in the Senate. Another source\nof objection is derived from the small number of persons by whom a\ntreaty may be made. Of those who espouse this objection, a part are of\nopinion that the House of Representatives ought to have been associated\nin the business, while another part seem to think that nothing more was\nnecessary than to have substituted two thirds of all the members of the\nSenate, to two thirds of the members present. As I flatter myself the\nobservations made in a preceding number upon this part of the plan must\nhave sufficed to place it, to a discerning eye, in a very favorable\nlight, I shall here content myself with offering only some supplementary\nremarks, principally with a view to the objections which have been just\nstated.\n\nWith regard to the intermixture of powers, I shall rely upon the\nexplanations already given in other places, of the true sense of\nthe rule upon which that objection is founded; and shall take it for\ngranted, as an inference from them, that the union of the Executive with\nthe Senate, in the article of treaties, is no infringement of that rule.\nI venture to add, that the particular nature of the power of making\ntreaties indicates a peculiar propriety in that union. Though several\nwriters on the subject of government place that power in the class of\nexecutive authorities, yet this is evidently an arbitrary disposition;\nfor if we attend carefully to its operation, it will be found to partake\nmore of the legislative than of the executive character, though it does\nnot seem strictly to fall within the definition of either of them. The\nessence of the legislative authority is to enact laws, or, in other\nwords, to prescribe rules for the regulation of the society; while the\nexecution of the laws, and the employment of the common strength, either\nfor this purpose or for the common defense, seem to comprise all the\nfunctions of the executive magistrate. The power of making treaties\nis, plainly, neither the one nor the other. It relates neither to the\nexecution of the subsisting laws, nor to the enaction of new ones;\nand still less to an exertion of the common strength. Its objects are\nCONTRACTS with foreign nations, which have the force of law, but derive\nit from the obligations of good faith. They are not rules prescribed\nby the sovereign to the subject, but agreements between sovereign and\nsovereign. The power in question seems therefore to form a distinct\ndepartment, and to belong, properly, neither to the legislative nor to\nthe executive. The qualities elsewhere detailed as indispensable in the\nmanagement of foreign negotiations, point out the Executive as the most\nfit agent in those transactions; while the vast importance of the\ntrust, and the operation of treaties as laws, plead strongly for the\nparticipation of the whole or a portion of the legislative body in the\noffice of making them.\n\nHowever proper or safe it may be in governments where the executive\nmagistrate is an hereditary monarch, to commit to him the entire power\nof making treaties, it would be utterly unsafe and improper to intrust\nthat power to an elective magistrate of four years' duration. It has\nbeen remarked, upon another occasion, and the remark is unquestionably\njust, that an hereditary monarch, though often the oppressor of his\npeople, has personally too much stake in the government to be in any\nmaterial danger of being corrupted by foreign powers. But a man raised\nfrom the station of a private citizen to the rank of chief magistrate,\npossessed of a moderate or slender fortune, and looking forward to a\nperiod not very remote when he may probably be obliged to return to the\nstation from which he was taken, might sometimes be under temptations to\nsacrifice his duty to his interest, which it would require superlative\nvirtue to withstand. An avaricious man might be tempted to betray the\ninterests of the state to the acquisition of wealth. An ambitious man\nmight make his own aggrandizement, by the aid of a foreign power, the\nprice of his treachery to his constituents. The history of human conduct\ndoes not warrant that exalted opinion of human virtue which would make\nit wise in a nation to commit interests of so delicate and momentous a\nkind, as those which concern its intercourse with the rest of the world,\nto the sole disposal of a magistrate created and circumstanced as would\nbe a President of the United States.\n\nTo have intrusted the power of making treaties to the Senate alone,\nwould have been to relinquish the benefits of the constitutional agency\nof the President in the conduct of foreign negotiations. It is true that\nthe Senate would, in that case, have the option of employing him in this\ncapacity, but they would also have the option of letting it alone, and\npique or cabal might induce the latter rather than the former. Besides\nthis, the ministerial servant of the Senate could not be expected to\nenjoy the confidence and respect of foreign powers in the same degree\nwith the constitutional representatives of the nation, and, of course,\nwould not be able to act with an equal degree of weight or efficacy.\nWhile the Union would, from this cause, lose a considerable advantage\nin the management of its external concerns, the people would lose the\nadditional security which would result from the co-operation of the\nExecutive. Though it would be imprudent to confide in him solely so\nimportant a trust, yet it cannot be doubted that his participation would\nmaterially add to the safety of the society. It must indeed be clear to\na demonstration that the joint possession of the power in question, by\nthe President and Senate, would afford a greater prospect of security,\nthan the separate possession of it by either of them. And whoever has\nmaturely weighed the circumstances which must concur in the appointment\nof a President, will be satisfied that the office will always bid fair\nto be filled by men of such characters as to render their concurrence in\nthe formation of treaties peculiarly desirable, as well on the score of\nwisdom, as on that of integrity.\n\nThe remarks made in a former number, which have been alluded to in\nanother part of this paper, will apply with conclusive force against the\nadmission of the House of Representatives to a share in the formation\nof treaties. The fluctuating and, taking its future increase into the\naccount, the multitudinous composition of that body, forbid us to expect\nin it those qualities which are essential to the proper execution of\nsuch a trust. Accurate and comprehensive knowledge of foreign politics;\na steady and systematic adherence to the same views; a nice and uniform\nsensibility to national character; decision, secrecy, and despatch, are\nincompatible with the genius of a body so variable and so numerous. The\nvery complication of the business, by introducing a necessity of the\nconcurrence of so many different bodies, would of itself afford a\nsolid objection. The greater frequency of the calls upon the House of\nRepresentatives, and the greater length of time which it would often be\nnecessary to keep them together when convened, to obtain their sanction\nin the progressive stages of a treaty, would be a source of so great\ninconvenience and expense as alone ought to condemn the project.\n\nThe only objection which remains to be canvassed, is that which would\nsubstitute the proportion of two thirds of all the members composing the\nsenatorial body, to that of two thirds of the members present. It has\nbeen shown, under the second head of our inquiries, that all provisions\nwhich require more than the majority of any body to its resolutions,\nhave a direct tendency to embarrass the operations of the government,\nand an indirect one to subject the sense of the majority to that of the\nminority. This consideration seems sufficient to determine our opinion,\nthat the convention have gone as far in the endeavor to secure the\nadvantage of numbers in the formation of treaties as could have been\nreconciled either with the activity of the public councils or with a\nreasonable regard to the major sense of the community. If two thirds of\nthe whole number of members had been required, it would, in many cases,\nfrom the non-attendance of a part, amount in practice to a necessity\nof unanimity. And the history of every political establishment in which\nthis principle has prevailed, is a history of impotence, perplexity, and\ndisorder. Proofs of this position might be adduced from the examples of\nthe Roman Tribuneship, the Polish Diet, and the States-General of\nthe Netherlands, did not an example at home render foreign precedents\nunnecessary.\n\nTo require a fixed proportion of the whole body would not, in all\nprobability, contribute to the advantages of a numerous agency, better\nthen merely to require a proportion of the attending members. The\nformer, by making a determinate number at all times requisite to a\nresolution, diminishes the motives to punctual attendance. The latter,\nby making the capacity of the body to depend on a proportion which\nmay be varied by the absence or presence of a single member, has the\ncontrary effect. And as, by promoting punctuality, it tends to keep\nthe body complete, there is great likelihood that its resolutions would\ngenerally be dictated by as great a number in this case as in the other;\nwhile there would be much fewer occasions of delay. It ought not to be\nforgotten that, under the existing Confederation, two members may, and\nusually do, represent a State; whence it happens that Congress, who now\nare solely invested with all the powers of the Union, rarely consist of\na greater number of persons than would compose the intended Senate. If\nwe add to this, that as the members vote by States, and that where there\nis only a single member present from a State, his vote is lost, it will\njustify a supposition that the active voices in the Senate, where the\nmembers are to vote individually, would rarely fall short in number of\nthe active voices in the existing Congress. When, in addition to these\nconsiderations, we take into view the co-operation of the President,\nwe shall not hesitate to infer that the people of America would\nhave greater security against an improper use of the power of making\ntreaties, under the new Constitution, than they now enjoy under the\nConfederation. And when we proceed still one step further, and look\nforward to the probable augmentation of the Senate, by the erection of\nnew States, we shall not only perceive ample ground of confidence in the\nsufficiency of the members to whose agency that power will be intrusted,\nbut we shall probably be led to conclude that a body more numerous than\nthe Senate would be likely to become, would be very little fit for the\nproper discharge of the trust.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 76\n\nThe Appointing Power of the Executive\n\nFrom the New York Packet. Tuesday, April 1, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE President is \"to nominate, and, by and with the advice and consent\nof the Senate, to appoint ambassadors, other public ministers and\nconsuls, judges of the Supreme Court, and all other officers of the\nUnited States whose appointments are not otherwise provided for in the\nConstitution. But the Congress may by law vest the appointment of such\ninferior officers as they think proper, in the President alone, or in\nthe courts of law, or in the heads of departments. The President shall\nhave power to fill up all vacancies which may happen during the recess\nof the Senate, by granting commissions which shall expire at the end of\ntheir next session.\"\n\nIt has been observed in a former paper, that \"the true test of a\ngood government is its aptitude and tendency to produce a good\nadministration.\" If the justness of this observation be admitted, the\nmode of appointing the officers of the United States contained in the\nforegoing clauses, must, when examined, be allowed to be entitled\nto particular commendation. It is not easy to conceive a plan better\ncalculated than this to promote a judicious choice of men for filling\nthe offices of the Union; and it will not need proof, that on this point\nmust essentially depend the character of its administration.\n\nIt will be agreed on all hands, that the power of appointment, in\nordinary cases, ought to be modified in one of three ways. It ought\neither to be vested in a single man, or in a select assembly of a\nmoderate number; or in a single man, with the concurrence of such an\nassembly. The exercise of it by the people at large will be readily\nadmitted to be impracticable; as waiving every other consideration,\nit would leave them little time to do anything else. When, therefore,\nmention is made in the subsequent reasonings of an assembly or body\nof men, what is said must be understood to relate to a select body or\nassembly, of the description already given. The people collectively,\nfrom their number and from their dispersed situation, cannot be\nregulated in their movements by that systematic spirit of cabal and\nintrigue, which will be urged as the chief objections to reposing the\npower in question in a body of men.\n\nThose who have themselves reflected upon the subject, or who have\nattended to the observations made in other parts of these papers, in\nrelation to the appointment of the President, will, I presume, agree to\nthe position, that there would always be great probability of having the\nplace supplied by a man of abilities, at least respectable. Premising\nthis, I proceed to lay it down as a rule, that one man of discernment is\nbetter fitted to analyze and estimate the peculiar qualities adapted\nto particular offices, than a body of men of equal or perhaps even of\nsuperior discernment.\n\nThe sole and undivided responsibility of one man will naturally beget a\nlivelier sense of duty and a more exact regard to reputation. He will,\non this account, feel himself under stronger obligations, and more\ninterested to investigate with care the qualities requisite to the\nstations to be filled, and to prefer with impartiality the persons who\nmay have the fairest pretensions to them. He will have fewer personal\nattachments to gratify, than a body of men who may each be supposed to\nhave an equal number; and will be so much the less liable to be misled\nby the sentiments of friendship and of affection. A single well-directed\nman, by a single understanding, cannot be distracted and warped by that\ndiversity of views, feelings, and interests, which frequently distract\nand warp the resolutions of a collective body. There is nothing so apt\nto agitate the passions of mankind as personal considerations whether\nthey relate to ourselves or to others, who are to be the objects of\nour choice or preference. Hence, in every exercise of the power of\nappointing to offices, by an assembly of men, we must expect to see\na full display of all the private and party likings and dislikes,\npartialities and antipathies, attachments and animosities, which are\nfelt by those who compose the assembly. The choice which may at any time\nhappen to be made under such circumstances, will of course be the\nresult either of a victory gained by one party over the other, or of a\ncompromise between the parties. In either case, the intrinsic merit\nof the candidate will be too often out of sight. In the first, the\nqualifications best adapted to uniting the suffrages of the party, will\nbe more considered than those which fit the person for the station.\nIn the last, the coalition will commonly turn upon some interested\nequivalent: \"Give us the man we wish for this office, and you shall\nhave the one you wish for that.\" This will be the usual condition of the\nbargain. And it will rarely happen that the advancement of the public\nservice will be the primary object either of party victories or of party\nnegotiations.\n\nThe truth of the principles here advanced seems to have been felt by the\nmost intelligent of those who have found fault with the provision made,\nin this respect, by the convention. They contend that the President\nought solely to have been authorized to make the appointments under the\nfederal government. But it is easy to show, that every advantage to be\nexpected from such an arrangement would, in substance, be derived from\nthe power of nomination, which is proposed to be conferred upon him;\nwhile several disadvantages which might attend the absolute power of\nappointment in the hands of that officer would be avoided. In the act\nof nomination, his judgment alone would be exercised; and as it would\nbe his sole duty to point out the man who, with the approbation of the\nSenate, should fill an office, his responsibility would be as complete\nas if he were to make the final appointment. There can, in this view, be\nno difference between nominating and appointing. The same motives which\nwould influence a proper discharge of his duty in one case, would exist\nin the other. And as no man could be appointed but on his previous\nnomination, every man who might be appointed would be, in fact, his\nchoice.\n\nBut might not his nomination be overruled? I grant it might, yet this\ncould only be to make place for another nomination by himself. The\nperson ultimately appointed must be the object of his preference, though\nperhaps not in the first degree. It is also not very probable that his\nnomination would often be overruled. The Senate could not be tempted, by\nthe preference they might feel to another, to reject the one proposed;\nbecause they could not assure themselves, that the person they\nmight wish would be brought forward by a second or by any subsequent\nnomination. They could not even be certain, that a future nomination\nwould present a candidate in any degree more acceptable to them; and as\ntheir dissent might cast a kind of stigma upon the individual rejected,\nand might have the appearance of a reflection upon the judgment of the\nchief magistrate, it is not likely that their sanction would often\nbe refused, where there were not special and strong reasons for the\nrefusal.\n\nTo what purpose then require the co-operation of the Senate? I answer,\nthat the necessity of their concurrence would have a powerful, though,\nin general, a silent operation. It would be an excellent check upon a\nspirit of favoritism in the President, and would tend greatly to prevent\nthe appointment of unfit characters from State prejudice, from family\nconnection, from personal attachment, or from a view to popularity. In\naddition to this, it would be an efficacious source of stability in the\nadministration.\n\nIt will readily be comprehended, that a man who had himself the sole\ndisposition of offices, would be governed much more by his private\ninclinations and interests, than when he was bound to submit the\npropriety of his choice to the discussion and determination of a\ndifferent and independent body, and that body an entire branch of the\nlegislature. The possibility of rejection would be a strong motive to\ncare in proposing. The danger to his own reputation, and, in the case\nof an elective magistrate, to his political existence, from betraying\na spirit of favoritism, or an unbecoming pursuit of popularity, to the\nobservation of a body whose opinion would have great weight in forming\nthat of the public, could not fail to operate as a barrier to the one\nand to the other. He would be both ashamed and afraid to bring forward,\nfor the most distinguished or lucrative stations, candidates who had\nno other merit than that of coming from the same State to which he\nparticularly belonged, or of being in some way or other personally\nallied to him, or of possessing the necessary insignificance and pliancy\nto render them the obsequious instruments of his pleasure.\n\nTo this reasoning it has been objected that the President, by the\ninfluence of the power of nomination, may secure the complaisance of\nthe Senate to his views. This supposition of universal venalty in\nhuman nature is little less an error in political reasoning, than the\nsupposition of universal rectitude. The institution of delegated power\nimplies, that there is a portion of virtue and honor among mankind,\nwhich may be a reasonable foundation of confidence; and experience\njustifies the theory. It has been found to exist in the most corrupt\nperiods of the most corrupt governments. The venalty of the British\nHouse of Commons has been long a topic of accusation against that body,\nin the country to which they belong as well as in this; and it cannot be\ndoubted that the charge is, to a considerable extent, well founded. But\nit is as little to be doubted, that there is always a large proportion\nof the body, which consists of independent and public-spirited men, who\nhave an influential weight in the councils of the nation. Hence it is\n(the present reign not excepted) that the sense of that body is often\nseen to control the inclinations of the monarch, both with regard to men\nand to measures. Though it might therefore be allowable to suppose\nthat the Executive might occasionally influence some individuals in\nthe Senate, yet the supposition, that he could in general purchase\nthe integrity of the whole body, would be forced and improbable. A man\ndisposed to view human nature as it is, without either flattering\nits virtues or exaggerating its vices, will see sufficient ground of\nconfidence in the probity of the Senate, to rest satisfied, not only\nthat it will be impracticable to the Executive to corrupt or seduce a\nmajority of its members, but that the necessity of its co-operation,\nin the business of appointments, will be a considerable and salutary\nrestraint upon the conduct of that magistrate. Nor is the integrity\nof the Senate the only reliance. The Constitution has provided some\nimportant guards against the danger of executive influence upon the\nlegislative body: it declares that \"No senator or representative shall\nduring the time for which he was elected, be appointed to any civil\noffice under the United States, which shall have been created, or the\nemoluments whereof shall have been increased, during such time; and no\nperson, holding any office under the United States, shall be a member of\neither house during his continuance in office.\"\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 77\n\nThe Appointing Power Continued and Other Powers of the Executive\nConsidered.\n\nFrom The Independent Journal. Wednesday, April 2, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIT HAS been mentioned as one of the advantages to be expected from the\nco-operation of the Senate, in the business of appointments, that it\nwould contribute to the stability of the administration. The consent of\nthat body would be necessary to displace as well as to appoint. A change\nof the Chief Magistrate, therefore, would not occasion so violent or\nso general a revolution in the officers of the government as might be\nexpected, if he were the sole disposer of offices. Where a man in any\nstation had given satisfactory evidence of his fitness for it, a new\nPresident would be restrained from attempting a change in favor of a\nperson more agreeable to him, by the apprehension that a discountenance\nof the Senate might frustrate the attempt, and bring some degree of\ndiscredit upon himself. Those who can best estimate the value of a\nsteady administration, will be most disposed to prize a provision which\nconnects the official existence of public men with the approbation or\ndisapprobation of that body which, from the greater permanency of its\nown composition, will in all probability be less subject to inconstancy\nthan any other member of the government.\n\nTo this union of the Senate with the President, in the article of\nappointments, it has in some cases been suggested that it would serve\nto give the President an undue influence over the Senate, and in others\nthat it would have an opposite tendency--a strong proof that neither\nsuggestion is true.\n\nTo state the first in its proper form, is to refute it. It amounts to\nthis: the President would have an improper influence over the Senate,\nbecause the Senate would have the power of restraining him. This is an\nabsurdity in terms. It cannot admit of a doubt that the entire power\nof appointment would enable him much more effectually to establish a\ndangerous empire over that body, than a mere power of nomination subject\nto their control.\n\nLet us take a view of the converse of the proposition: \"the Senate would\ninfluence the Executive.\" As I have had occasion to remark in several\nother instances, the indistinctness of the objection forbids a precise\nanswer. In what manner is this influence to be exerted? In relation to\nwhat objects? The power of influencing a person, in the sense in which\nit is here used, must imply a power of conferring a benefit upon him.\nHow could the Senate confer a benefit upon the President by the manner\nof employing their right of negative upon his nominations? If it be\nsaid they might sometimes gratify him by an acquiescence in a favorite\nchoice, when public motives might dictate a different conduct, I answer,\nthat the instances in which the President could be personally interested\nin the result, would be too few to admit of his being materially\naffected by the compliances of the Senate. The POWER which can originate\nthe disposition of honors and emoluments, is more likely to attract than\nto be attracted by the POWER which can merely obstruct their course. If\nby influencing the President be meant restraining him, this is precisely\nwhat must have been intended. And it has been shown that the restraint\nwould be salutary, at the same time that it would not be such as to\ndestroy a single advantage to be looked for from the uncontrolled agency\nof that Magistrate. The right of nomination would produce all the (good,\nwithout the ill.)(E1) (good of that of appointment, and would in a great\nmeasure avoid its evils.)(E1)\n\nUpon a comparison of the plan for the appointment of the officers of the\nproposed government with that which is established by the constitution\nof this State, a decided preference must be given to the former. In that\nplan the power of nomination is unequivocally vested in the Executive.\nAnd as there would be a necessity for submitting each nomination to\nthe judgment of an entire branch of the legislature, the circumstances\nattending an appointment, from the mode of conducting it, would\nnaturally become matters of notoriety; and the public would be at no\nloss to determine what part had been performed by the different actors.\nThe blame of a bad nomination would fall upon the President singly and\nabsolutely. The censure of rejecting a good one would lie entirely at\nthe door of the Senate; aggravated by the consideration of their having\ncounteracted the good intentions of the Executive. If an ill appointment\nshould be made, the Executive for nominating, and the Senate for\napproving, would participate, though in different degrees, in the\nopprobrium and disgrace.\n\nThe reverse of all this characterizes the manner of appointment in\nthis State. The council of appointment consists of from three to five\npersons, of whom the governor is always one. This small body, shut up\nin a private apartment, impenetrable to the public eye, proceed to the\nexecution of the trust committed to them. It is known that the governor\nclaims the right of nomination, upon the strength of some ambiguous\nexpressions in the constitution; but it is not known to what extent,\nor in what manner he exercises it; nor upon what occasions he is\ncontradicted or opposed. The censure of a bad appointment, on account of\nthe uncertainty of its author, and for want of a determinate object, has\nneither poignancy nor duration. And while an unbounded field for cabal\nand intrigue lies open, all idea of responsibility is lost. The most\nthat the public can know, is that the governor claims the right of\nnomination; that two out of the inconsiderable number of four men\ncan too often be managed without much difficulty; that if some of the\nmembers of a particular council should happen to be of an uncomplying\ncharacter, it is frequently not impossible to get rid of their\nopposition by regulating the times of meeting in such a manner as to\nrender their attendance inconvenient; and that from whatever cause it\nmay proceed, a great number of very improper appointments are from time\nto time made. Whether a governor of this State avails himself of the\nascendant he must necessarily have, in this delicate and important part\nof the administration, to prefer to offices men who are best qualified\nfor them, or whether he prostitutes that advantage to the advancement of\npersons whose chief merit is their implicit devotion to his will, and to\nthe support of a despicable and dangerous system of personal influence,\nare questions which, unfortunately for the community, can only be the\nsubjects of speculation and conjecture.\n\nEvery mere council of appointment, however constituted, will be a\nconclave, in which cabal and intrigue will have their full scope. Their\nnumber, without an unwarrantable increase of expense, cannot be large\nenough to preclude a facility of combination. And as each member will\nhave his friends and connections to provide for, the desire of mutual\ngratification will beget a scandalous bartering of votes and bargaining\nfor places. The private attachments of one man might easily be\nsatisfied; but to satisfy the private attachments of a dozen, or of\ntwenty men, would occasion a monopoly of all the principal employments\nof the government in a few families, and would lead more directly to an\naristocracy or an oligarchy than any measure that could be contrived.\nIf, to avoid an accumulation of offices, there was to be a frequent\nchange in the persons who were to compose the council, this would\ninvolve the mischiefs of a mutable administration in their full extent.\nSuch a council would also be more liable to executive influence than\nthe Senate, because they would be fewer in number, and would act less\nimmediately under the public inspection. Such a council, in fine, as\na substitute for the plan of the convention, would be productive of an\nincrease of expense, a multiplication of the evils which spring from\nfavoritism and intrigue in the distribution of public honors, a decrease\nof stability in the administration of the government, and a diminution\nof the security against an undue influence of the Executive. And yet\nsuch a council has been warmly contended for as an essential amendment\nin the proposed Constitution.\n\nI could not with propriety conclude my observations on the subject of\nappointments without taking notice of a scheme for which there have\nappeared some, though but few advocates; I mean that of uniting the\nHouse of Representatives in the power of making them. I shall, however,\ndo little more than mention it, as I cannot imagine that it is likely to\ngain the countenance of any considerable part of the community. A body\nso fluctuating and at the same time so numerous, can never be deemed\nproper for the exercise of that power. Its unfitness will appear\nmanifest to all, when it is recollected that in half a century it may\nconsist of three or four hundred persons. All the advantages of the\nstability, both of the Executive and of the Senate, would be defeated by\nthis union, and infinite delays and embarrassments would be occasioned.\nThe example of most of the States in their local constitutions\nencourages us to reprobate the idea.\n\nThe only remaining powers of the Executive are comprehended in giving\ninformation to Congress of the state of the Union; in recommending\nto their consideration such measures as he shall judge expedient; in\nconvening them, or either branch, upon extraordinary occasions; in\nadjourning them when they cannot themselves agree upon the time of\nadjournment; in receiving ambassadors and other public ministers; in\nfaithfully executing the laws; and in commissioning all the officers of\nthe United States.\n\nExcept some cavils about the power of convening either house of the\nlegislature, and that of receiving ambassadors, no objection has been\nmade to this class of authorities; nor could they possibly admit of\nany. It required, indeed, an insatiable avidity for censure to invent\nexceptions to the parts which have been excepted to. In regard to the\npower of convening either house of the legislature, I shall barely\nremark, that in respect to the Senate at least, we can readily discover\na good reason for it. AS this body has a concurrent power with the\nExecutive in the article of treaties, it might often be necessary\nto call it together with a view to this object, when it would be\nunnecessary and improper to convene the House of Representatives. As to\nthe reception of ambassadors, what I have said in a former paper will\nfurnish a sufficient answer.\n\nWe have now completed a survey of the structure and powers of the\nexecutive department, which, I have endeavored to show, combines, as far\nas republican principles will admit, all the requisites to energy. The\nremaining inquiry is: Does it also combine the requisites to safety,\nin a republican sense--a due dependence on the people, a due\nresponsibility? The answer to this question has been anticipated in\nthe investigation of its other characteristics, and is satisfactorily\ndeducible from these circumstances; from the election of the President\nonce in four years by persons immediately chosen by the people for that\npurpose; and from his being at all times liable to impeachment, trial,\ndismission from office, incapacity to serve in any other, and to\nforfeiture of life and estate by subsequent prosecution in the common\ncourse of law. But these precautions, great as they are, are not the\nonly ones which the plan of the convention has provided in favor of\nthe public security. In the only instances in which the abuse of the\nexecutive authority was materially to be feared, the Chief Magistrate of\nthe United States would, by that plan, be subjected to the control of\na branch of the legislative body. What more could be desired by an\nenlightened and reasonable people?\n\nPUBLIUS\n\nE1. These two alternate endings of this sentence appear in different\neditions.\n\n\n\n\nFEDERALIST No. 78\n\nThe Judiciary Department\n\nFrom McLEAN'S Edition, New York. Wednesday, May 28, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nWE PROCEED now to an examination of the judiciary department of the\nproposed government.\n\nIn unfolding the defects of the existing Confederation, the utility and\nnecessity of a federal judicature have been clearly pointed out. It is\nthe less necessary to recapitulate the considerations there urged, as\nthe propriety of the institution in the abstract is not disputed; the\nonly questions which have been raised being relative to the manner of\nconstituting it, and to its extent. To these points, therefore, our\nobservations shall be confined.\n\nThe manner of constituting it seems to embrace these several objects:\n1st. The mode of appointing the judges. 2d. The tenure by which they\nare to hold their places. 3d. The partition of the judiciary authority\nbetween different courts, and their relations to each other.\n\nFirst. As to the mode of appointing the judges; this is the same with\nthat of appointing the officers of the Union in general, and has been so\nfully discussed in the two last numbers, that nothing can be said here\nwhich would not be useless repetition.\n\nSecond. As to the tenure by which the judges are to hold their places;\nthis chiefly concerns their duration in office; the provisions for their\nsupport; the precautions for their responsibility.\n\nAccording to the plan of the convention, all judges who may be appointed\nby the United States are to hold their offices during good behavior;\nwhich is conformable to the most approved of the State constitutions and\namong the rest, to that of this State. Its propriety having been drawn\ninto question by the adversaries of that plan, is no light symptom\nof the rage for objection, which disorders their imaginations and\njudgments. The standard of good behavior for the continuance in office\nof the judicial magistracy, is certainly one of the most valuable of the\nmodern improvements in the practice of government. In a monarchy it is\nan excellent barrier to the despotism of the prince; in a republic it is\na no less excellent barrier to the encroachments and oppressions of the\nrepresentative body. And it is the best expedient which can be\ndevised in any government, to secure a steady, upright, and impartial\nadministration of the laws.\n\nWhoever attentively considers the different departments of power must\nperceive, that, in a government in which they are separated from each\nother, the judiciary, from the nature of its functions, will always be\nthe least dangerous to the political rights of the Constitution; because\nit will be least in a capacity to annoy or injure them. The Executive\nnot only dispenses the honors, but holds the sword of the community.\nThe legislature not only commands the purse, but prescribes the rules\nby which the duties and rights of every citizen are to be regulated. The\njudiciary, on the contrary, has no influence over either the sword or\nthe purse; no direction either of the strength or of the wealth of the\nsociety; and can take no active resolution whatever. It may truly be\nsaid to have neither FORCE nor WILL, but merely judgment; and must\nultimately depend upon the aid of the executive arm even for the\nefficacy of its judgments.\n\nThis simple view of the matter suggests several important consequences.\nIt proves incontestably, that the judiciary is beyond comparison the\nweakest of the three departments of power(1); that it can never attack\nwith success either of the other two; and that all possible care is\nrequisite to enable it to defend itself against their attacks. It\nequally proves, that though individual oppression may now and then\nproceed from the courts of justice, the general liberty of the people\ncan never be endangered from that quarter; I mean so long as the\njudiciary remains truly distinct from both the legislature and the\nExecutive. For I agree, that \"there is no liberty, if the power of\njudging be not separated from the legislative and executive powers.\"(2)\nAnd it proves, in the last place, that as liberty can have nothing to\nfear from the judiciary alone, but would have every thing to fear from\nits union with either of the other departments; that as all the effects\nof such a union must ensue from a dependence of the former on the\nlatter, notwithstanding a nominal and apparent separation; that as, from\nthe natural feebleness of the judiciary, it is in continual jeopardy of\nbeing overpowered, awed, or influenced by its co-ordinate branches; and\nthat as nothing can contribute so much to its firmness and independence\nas permanency in office, this quality may therefore be justly regarded\nas an indispensable ingredient in its constitution, and, in a great\nmeasure, as the citadel of the public justice and the public security.\n\nThe complete independence of the courts of justice is peculiarly\nessential in a limited Constitution. By a limited Constitution, I\nunderstand one which contains certain specified exceptions to the\nlegislative authority; such, for instance, as that it shall pass no\nbills of attainder, no ex post facto laws, and the like. Limitations\nof this kind can be preserved in practice no other way than through the\nmedium of courts of justice, whose duty it must be to declare all acts\ncontrary to the manifest tenor of the Constitution void. Without this,\nall the reservations of particular rights or privileges would amount to\nnothing.\n\nSome perplexity respecting the rights of the courts to pronounce\nlegislative acts void, because contrary to the Constitution, has arisen\nfrom an imagination that the doctrine would imply a superiority of the\njudiciary to the legislative power. It is urged that the authority which\ncan declare the acts of another void, must necessarily be superior to\nthe one whose acts may be declared void. As this doctrine is of great\nimportance in all the American constitutions, a brief discussion of the\nground on which it rests cannot be unacceptable.\n\nThere is no position which depends on clearer principles, than that\nevery act of a delegated authority, contrary to the tenor of the\ncommission under which it is exercised, is void. No legislative act,\ntherefore, contrary to the Constitution, can be valid. To deny this,\nwould be to affirm, that the deputy is greater than his principal; that\nthe servant is above his master; that the representatives of the people\nare superior to the people themselves; that men acting by virtue of\npowers, may do not only what their powers do not authorize, but what\nthey forbid.\n\nIf it be said that the legislative body are themselves the\nconstitutional judges of their own powers, and that the construction\nthey put upon them is conclusive upon the other departments, it may be\nanswered, that this cannot be the natural presumption, where it is not\nto be collected from any particular provisions in the Constitution. It\nis not otherwise to be supposed, that the Constitution could intend to\nenable the representatives of the people to substitute their will to\nthat of their constituents. It is far more rational to suppose, that the\ncourts were designed to be an intermediate body between the people and\nthe legislature, in order, among other things, to keep the latter within\nthe limits assigned to their authority. The interpretation of the laws\nis the proper and peculiar province of the courts. A constitution is,\nin fact, and must be regarded by the judges, as a fundamental law.\nIt therefore belongs to them to ascertain its meaning, as well as the\nmeaning of any particular act proceeding from the legislative body. If\nthere should happen to be an irreconcilable variance between the two,\nthat which has the superior obligation and validity ought, of course, to\nbe preferred; or, in other words, the Constitution ought to be preferred\nto the statute, the intention of the people to the intention of their\nagents.\n\nNor does this conclusion by any means suppose a superiority of the\njudicial to the legislative power. It only supposes that the power\nof the people is superior to both; and that where the will of the\nlegislature, declared in its statutes, stands in opposition to that\nof the people, declared in the Constitution, the judges ought to be\ngoverned by the latter rather than the former. They ought to regulate\ntheir decisions by the fundamental laws, rather than by those which are\nnot fundamental.\n\nThis exercise of judicial discretion, in determining between two\ncontradictory laws, is exemplified in a familiar instance. It not\nuncommonly happens, that there are two statutes existing at one time,\nclashing in whole or in part with each other, and neither of them\ncontaining any repealing clause or expression. In such a case, it is the\nprovince of the courts to liquidate and fix their meaning and operation.\nSo far as they can, by any fair construction, be reconciled to each\nother, reason and law conspire to dictate that this should be done;\nwhere this is impracticable, it becomes a matter of necessity to give\neffect to one, in exclusion of the other. The rule which has obtained in\nthe courts for determining their relative validity is, that the last in\norder of time shall be preferred to the first. But this is a mere rule\nof construction, not derived from any positive law, but from the nature\nand reason of the thing. It is a rule not enjoined upon the courts by\nlegislative provision, but adopted by themselves, as consonant to truth\nand propriety, for the direction of their conduct as interpreters of the\nlaw. They thought it reasonable, that between the interfering acts of an\nEQUAL authority, that which was the last indication of its will should\nhave the preference.\n\nBut in regard to the interfering acts of a superior and subordinate\nauthority, of an original and derivative power, the nature and reason of\nthe thing indicate the converse of that rule as proper to be followed.\nThey teach us that the prior act of a superior ought to be preferred to\nthe subsequent act of an inferior and subordinate authority; and that\naccordingly, whenever a particular statute contravenes the Constitution,\nit will be the duty of the judicial tribunals to adhere to the latter\nand disregard the former.\n\nIt can be of no weight to say that the courts, on the pretense of a\nrepugnancy, may substitute their own pleasure to the constitutional\nintentions of the legislature. This might as well happen in the case\nof two contradictory statutes; or it might as well happen in every\nadjudication upon any single statute. The courts must declare the sense\nof the law; and if they should be disposed to exercise WILL instead of\nJUDGMENT, the consequence would equally be the substitution of their\npleasure to that of the legislative body. The observation, if it prove\nany thing, would prove that there ought to be no judges distinct from\nthat body.\n\nIf, then, the courts of justice are to be considered as the bulwarks\nof a limited Constitution against legislative encroachments, this\nconsideration will afford a strong argument for the permanent tenure of\njudicial offices, since nothing will contribute so much as this to that\nindependent spirit in the judges which must be essential to the faithful\nperformance of so arduous a duty.\n\nThis independence of the judges is equally requisite to guard the\nConstitution and the rights of individuals from the effects of those ill\nhumors, which the arts of designing men, or the influence of particular\nconjunctures, sometimes disseminate among the people themselves, and\nwhich, though they speedily give place to better information, and more\ndeliberate reflection, have a tendency, in the meantime, to occasion\ndangerous innovations in the government, and serious oppressions of the\nminor party in the community. Though I trust the friends of the proposed\nConstitution will never concur with its enemies,(3) in questioning that\nfundamental principle of republican government, which admits the right\nof the people to alter or abolish the established Constitution, whenever\nthey find it inconsistent with their happiness, yet it is not to be\ninferred from this principle, that the representatives of the people,\nwhenever a momentary inclination happens to lay hold of a majority of\ntheir constituents, incompatible with the provisions in the existing\nConstitution, would, on that account, be justifiable in a violation of\nthose provisions; or that the courts would be under a greater obligation\nto connive at infractions in this shape, than when they had proceeded\nwholly from the cabals of the representative body. Until the people\nhave, by some solemn and authoritative act, annulled or changed the\nestablished form, it is binding upon themselves collectively, as well\nas individually; and no presumption, or even knowledge, of their\nsentiments, can warrant their representatives in a departure from it,\nprior to such an act. But it is easy to see, that it would require an\nuncommon portion of fortitude in the judges to do their duty as faithful\nguardians of the Constitution, where legislative invasions of it had\nbeen instigated by the major voice of the community.\n\nBut it is not with a view to infractions of the Constitution only, that\nthe independence of the judges may be an essential safeguard against the\neffects of occasional ill humors in the society. These sometimes extend\nno farther than to the injury of the private rights of particular\nclasses of citizens, by unjust and partial laws. Here also the firmness\nof the judicial magistracy is of vast importance in mitigating the\nseverity and confining the operation of such laws. It not only serves\nto moderate the immediate mischiefs of those which may have been passed,\nbut it operates as a check upon the legislative body in passing them;\nwho, perceiving that obstacles to the success of iniquitous intention\nare to be expected from the scruples of the courts, are in a manner\ncompelled, by the very motives of the injustice they meditate, to\nqualify their attempts. This is a circumstance calculated to have more\ninfluence upon the character of our governments, than but few may be\naware of. The benefits of the integrity and moderation of the judiciary\nhave already been felt in more States than one; and though they may have\ndispleased those whose sinister expectations they may have disappointed,\nthey must have commanded the esteem and applause of all the virtuous\nand disinterested. Considerate men, of every description, ought to prize\nwhatever will tend to beget or fortify that temper in the courts: as no\nman can be sure that he may not be to-morrow the victim of a spirit of\ninjustice, by which he may be a gainer to-day. And every man must\nnow feel, that the inevitable tendency of such a spirit is to sap the\nfoundations of public and private confidence, and to introduce in its\nstead universal distrust and distress.\n\nThat inflexible and uniform adherence to the rights of the Constitution,\nand of individuals, which we perceive to be indispensable in the courts\nof justice, can certainly not be expected from judges who hold their\noffices by a temporary commission. Periodical appointments, however\nregulated, or by whomsoever made, would, in some way or other, be\nfatal to their necessary independence. If the power of making them was\ncommitted either to the Executive or legislature, there would be danger\nof an improper complaisance to the branch which possessed it; if to\nboth, there would be an unwillingness to hazard the displeasure of\neither; if to the people, or to persons chosen by them for the special\npurpose, there would be too great a disposition to consult popularity,\nto justify a reliance that nothing would be consulted but the\nConstitution and the laws.\n\nThere is yet a further and a weightier reason for the permanency of\nthe judicial offices, which is deducible from the nature of the\nqualifications they require. It has been frequently remarked, with great\npropriety, that a voluminous code of laws is one of the inconveniences\nnecessarily connected with the advantages of a free government. To avoid\nan arbitrary discretion in the courts, it is indispensable that they\nshould be bound down by strict rules and precedents, which serve to\ndefine and point out their duty in every particular case that comes\nbefore them; and it will readily be conceived from the variety of\ncontroversies which grow out of the folly and wickedness of mankind,\nthat the records of those precedents must unavoidably swell to a very\nconsiderable bulk, and must demand long and laborious study to acquire a\ncompetent knowledge of them. Hence it is, that there can be but few men\nin the society who will have sufficient skill in the laws to qualify\nthem for the stations of judges. And making the proper deductions for\nthe ordinary depravity of human nature, the number must be still smaller\nof those who unite the requisite integrity with the requisite knowledge.\nThese considerations apprise us, that the government can have no great\noption between fit character; and that a temporary duration in office,\nwhich would naturally discourage such characters from quitting a\nlucrative line of practice to accept a seat on the bench, would have a\ntendency to throw the administration of justice into hands less able,\nand less well qualified, to conduct it with utility and dignity. In\nthe present circumstances of this country, and in those in which it is\nlikely to be for a long time to come, the disadvantages on this score\nwould be greater than they may at first sight appear; but it must be\nconfessed, that they are far inferior to those which present themselves\nunder the other aspects of the subject.\n\nUpon the whole, there can be no room to doubt that the convention acted\nwisely in copying from the models of those constitutions which have\nestablished good behavior as the tenure of their judicial offices, in\npoint of duration; and that so far from being blamable on this account,\ntheir plan would have been inexcusably defective, if it had wanted this\nimportant feature of good government. The experience of Great Britain\naffords an illustrious comment on the excellence of the institution.\n\nPUBLIUS\n\n1. The celebrated Montesquieu, speaking of them, says: \"Of the three\npowers above mentioned, the judiciary is next to nothing.\"--Spirit of\nLaws. Vol. I, page 186.\n\n2. Idem, page 181.\n\n3. Vide Protest of the Minority of the Convention of Pennsylvania,\nMartin's Speech, etc.\n\n\n\n\nFEDERALIST No. 79\n\nThe Judiciary Continued\n\nFrom MCLEAN's Edition, New York. Wednesday, May 28, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nNEXT to permanency in office, nothing can contribute more to the\nindependence of the judges than a fixed provision for their support. The\nremark made in relation to the President is equally applicable here.\nIn the general course of human nature, a power over a man's subsistence\namounts to a power over his will. And we can never hope to see\nrealized in practice, the complete separation of the judicial from the\nlegislative power, in any system which leaves the former dependent\nfor pecuniary resources on the occasional grants of the latter. The\nenlightened friends to good government in every State, have seen cause\nto lament the want of precise and explicit precautions in the State\nconstitutions on this head. Some of these indeed have declared that\npermanent(1) salaries should be established for the judges; but the\nexperiment has in some instances shown that such expressions are not\nsufficiently definite to preclude legislative evasions. Something still\nmore positive and unequivocal has been evinced to be requisite. The plan\nof the convention accordingly has provided that the judges of the United\nStates \"shall at stated times receive for their services a compensation\nwhich shall not be diminished during their continuance in office.\"\n\nThis, all circumstances considered, is the most eligible provision\nthat could have been devised. It will readily be understood that the\nfluctuations in the value of money and in the state of society rendered\na fixed rate of compensation in the Constitution inadmissible. What\nmight be extravagant to-day, might in half a century become penurious\nand inadequate. It was therefore necessary to leave it to the discretion\nof the legislature to vary its provisions in conformity to the\nvariations in circumstances, yet under such restrictions as to put it\nout of the power of that body to change the condition of the individual\nfor the worse. A man may then be sure of the ground upon which he\nstands, and can never be deterred from his duty by the apprehension of\nbeing placed in a less eligible situation. The clause which has been\nquoted combines both advantages. The salaries of judicial officers may\nfrom time to time be altered, as occasion shall require, yet so as\nnever to lessen the allowance with which any particular judge comes into\noffice, in respect to him. It will be observed that a difference has\nbeen made by the convention between the compensation of the President\nand of the judges, That of the former can neither be increased nor\ndiminished; that of the latter can only not be diminished. This probably\narose from the difference in the duration of the respective offices.\nAs the President is to be elected for no more than four years, it can\nrarely happen that an adequate salary, fixed at the commencement of that\nperiod, will not continue to be such to its end. But with regard to the\njudges, who, if they behave properly, will be secured in their places\nfor life, it may well happen, especially in the early stages of the\ngovernment, that a stipend, which would be very sufficient at their\nfirst appointment, would become too small in the progress of their\nservice.\n\nThis provision for the support of the judges bears every mark of\nprudence and efficacy; and it may be safely affirmed that, together with\nthe permanent tenure of their offices, it affords a better prospect of\ntheir independence than is discoverable in the constitutions of any of\nthe States in regard to their own judges.\n\nThe precautions for their responsibility are comprised in the article\nrespecting impeachments. They are liable to be impeached for malconduct\nby the House of Representatives, and tried by the Senate; and, if\nconvicted, may be dismissed from office, and disqualified for holding\nany other. This is the only provision on the point which is consistent\nwith the necessary independence of the judicial character, and is the\nonly one which we find in our own Constitution in respect to our own\njudges.\n\nThe want of a provision for removing the judges on account of inability\nhas been a subject of complaint. But all considerate men will be\nsensible that such a provision would either not be practiced upon\nor would be more liable to abuse than calculated to answer any good\npurpose. The mensuration of the faculties of the mind has, I believe,\nno place in the catalogue of known arts. An attempt to fix the boundary\nbetween the regions of ability and inability, would much oftener give\nscope to personal and party attachments and enmities than advance the\ninterests of justice or the public good. The result, except in the case\nof insanity, must for the most part be arbitrary; and insanity, without\nany formal or express provision, may be safely pronounced to be a\nvirtual disqualification.\n\nThe constitution of New York, to avoid investigations that must forever\nbe vague and dangerous, has taken a particular age as the criterion of\ninability. No man can be a judge beyond sixty. I believe there are few\nat present who do not disapprove of this provision. There is no station,\nin relation to which it is less proper than to that of a judge. The\ndeliberating and comparing faculties generally preserve their strength\nmuch beyond that period in men who survive it; and when, in addition to\nthis circumstance, we consider how few there are who outlive the season\nof intellectual vigor, and how improbable it is that any considerable\nportion of the bench, whether more or less numerous, should be in such\na situation at the same time, we shall be ready to conclude that\nlimitations of this sort have little to recommend them. In a republic,\nwhere fortunes are not affluent, and pensions not expedient, the\ndismission of men from stations in which they have served their country\nlong and usefully, on which they depend for subsistence, and from which\nit will be too late to resort to any other occupation for a livelihood,\nought to have some better apology to humanity than is to be found in the\nimaginary danger of a superannuated bench.\n\nPUBLIUS\n\n1. Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13.\n\n\n\n\nFEDERALIST No. 80\n\nThe Powers of the Judiciary\n\nFrom McLEAN's Edition, New York. Wednesday, May 28, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTO JUDGE with accuracy of the proper extent of the federal judicature,\nit will be necessary to consider, in the first place, what are its\nproper objects.\n\nIt seems scarcely to admit of controversy, that the judiciary authority\nof the Union ought to extend to these several descriptions of cases:\n1st, to all those which arise out of the laws of the United States,\npassed in pursuance of their just and constitutional powers of\nlegislation; 2d, to all those which concern the execution of the\nprovisions expressly contained in the articles of Union; 3d, to all\nthose in which the United States are a party; 4th, to all those which\ninvolve the PEACE of the CONFEDERACY, whether they relate to the\nintercourse between the United States and foreign nations, or to that\nbetween the States themselves; 5th, to all those which originate on the\nhigh seas, and are of admiralty or maritime jurisdiction; and, lastly,\nto all those in which the State tribunals cannot be supposed to be\nimpartial and unbiased.\n\nThe first point depends upon this obvious consideration, that there\nought always to be a constitutional method of giving efficacy to\nconstitutional provisions. What, for instance, would avail restrictions\non the authority of the State legislatures, without some constitutional\nmode of enforcing the observance of them? The States, by the plan of the\nconvention, are prohibited from doing a variety of things, some of which\nare incompatible with the interests of the Union, and others with the\nprinciples of good government. The imposition of duties on imported\narticles, and the emission of paper money, are specimens of each\nkind. No man of sense will believe, that such prohibitions would be\nscrupulously regarded, without some effectual power in the government to\nrestrain or correct the infractions of them. This power must either be a\ndirect negative on the State laws, or an authority in the federal courts\nto overrule such as might be in manifest contravention of the articles\nof Union. There is no third course that I can imagine. The latter\nappears to have been thought by the convention preferable to the former,\nand, I presume, will be most agreeable to the States.\n\nAs to the second point, it is impossible, by any argument or comment,\nto make it clearer than it is in itself. If there are such things as\npolitical axioms, the propriety of the judicial power of a government\nbeing coextensive with its legislative, may be ranked among the number.\nThe mere necessity of uniformity in the interpretation of the national\nlaws, decides the question. Thirteen independent courts of final\njurisdiction over the same causes, arising upon the same laws, is a\nhydra in government, from which nothing but contradiction and confusion\ncan proceed.\n\nStill less need be said in regard to the third point. Controversies\nbetween the nation and its members or citizens, can only be properly\nreferred to the national tribunals. Any other plan would be contrary to\nreason, to precedent, and to decorum.\n\nThe fourth point rests on this plain proposition, that the peace of the\nWHOLE ought not to be left at the disposal of a PART. The Union will\nundoubtedly be answerable to foreign powers for the conduct of\nits members. And the responsibility for an injury ought ever to\nbe accompanied with the faculty of preventing it. As the denial or\nperversion of justice by the sentences of courts, as well as in any\nother manner, is with reason classed among the just causes of war, it\nwill follow that the federal judiciary ought to have cognizance of all\ncauses in which the citizens of other countries are concerned. This is\nnot less essential to the preservation of the public faith, than to\nthe security of the public tranquillity. A distinction may perhaps be\nimagined between cases arising upon treaties and the laws of nations and\nthose which may stand merely on the footing of the municipal law. The\nformer kind may be supposed proper for the federal jurisdiction, the\nlatter for that of the States. But it is at least problematical, whether\nan unjust sentence against a foreigner, where the subject of controversy\nwas wholly relative to the lex loci, would not, if unredressed, be\nan aggression upon his sovereign, as well as one which violated the\nstipulations of a treaty or the general law of nations. And a still\ngreater objection to the distinction would result from the immense\ndifficulty, if not impossibility, of a practical discrimination\nbetween the cases of one complexion and those of the other. So great\na proportion of the cases in which foreigners are parties, involve\nnational questions, that it is by far most safe and most expedient to\nrefer all those in which they are concerned to the national tribunals.\n\nThe power of determining causes between two States, between one State\nand the citizens of another, and between the citizens of different\nStates, is perhaps not less essential to the peace of the Union than\nthat which has been just examined. History gives us a horrid picture of\nthe dissensions and private wars which distracted and desolated Germany\nprior to the institution of the Imperial Chamber by Maximilian, towards\nthe close of the fifteenth century; and informs us, at the same time,\nof the vast influence of that institution in appeasing the disorders and\nestablishing the tranquillity of the empire. This was a court invested\nwith authority to decide finally all differences among the members of\nthe Germanic body.\n\nA method of terminating territorial disputes between the States, under\nthe authority of the federal head, was not unattended to, even in the\nimperfect system by which they have been hitherto held together. But\nthere are many other sources, besides interfering claims of boundary,\nfrom which bickerings and animosities may spring up among the members of\nthe Union. To some of these we have been witnesses in the course of our\npast experience. It will readily be conjectured that I allude to the\nfraudulent laws which have been passed in too many of the States. And\nthough the proposed Constitution establishes particular guards against\nthe repetition of those instances which have heretofore made their\nappearance, yet it is warrantable to apprehend that the spirit which\nproduced them will assume new shapes, that could not be foreseen nor\nspecifically provided against. Whatever practices may have a tendency\nto disturb the harmony between the States, are proper objects of federal\nsuperintendence and control.\n\nIt may be esteemed the basis of the Union, that \"the citizens of each\nState shall be entitled to all the privileges and immunities of citizens\nof the several States.\" And if it be a just principle that every\ngovernment ought to possess the means of executing its own provisions\nby its own authority, it will follow, that in order to the inviolable\nmaintenance of that equality of privileges and immunities to which the\ncitizens of the Union will be entitled, the national judiciary ought to\npreside in all cases in which one State or its citizens are opposed\nto another State or its citizens. To secure the full effect of so\nfundamental a provision against all evasion and subterfuge, it is\nnecessary that its construction should be committed to that tribunal\nwhich, having no local attachments, will be likely to be impartial\nbetween the different States and their citizens, and which, owing its\nofficial existence to the Union, will never be likely to feel any bias\ninauspicious to the principles on which it is founded.\n\nThe fifth point will demand little animadversion. The most bigoted\nidolizers of State authority have not thus far shown a disposition to\ndeny the national judiciary the cognizances of maritime causes. These\nso generally depend on the laws of nations, and so commonly affect the\nrights of foreigners, that they fall within the considerations which are\nrelative to the public peace. The most important part of them are, by\nthe present Confederation, submitted to federal jurisdiction.\n\nThe reasonableness of the agency of the national courts in cases in\nwhich the State tribunals cannot be supposed to be impartial, speaks for\nitself. No man ought certainly to be a judge in his own cause, or in\nany cause in respect to which he has the least interest or bias. This\nprinciple has no inconsiderable weight in designating the federal courts\nas the proper tribunals for the determination of controversies between\ndifferent States and their citizens. And it ought to have the same\noperation in regard to some cases between citizens of the same State.\nClaims to land under grants of different States, founded upon adverse\npretensions of boundary, are of this description. The courts of neither\nof the granting States could be expected to be unbiased. The laws may\nhave even prejudged the question, and tied the courts down to decisions\nin favor of the grants of the State to which they belonged. And even\nwhere this had not been done, it would be natural that the judges,\nas men, should feel a strong predilection to the claims of their own\ngovernment.\n\nHaving thus laid down and discussed the principles which ought to\nregulate the constitution of the federal judiciary, we will proceed to\ntest, by these principles, the particular powers of which, according to\nthe plan of the convention, it is to be composed. It is to comprehend\n\"all cases in law and equity arising under the Constitution, the laws\nof the United States, and treaties made, or which shall be made, under\ntheir authority; to all cases affecting ambassadors, other public\nministers, and consuls; to all cases of admiralty and maritime\njurisdiction; to controversies to which the United States shall be a\nparty; to controversies between two or more States; between a State and\ncitizens of another State; between citizens of different States; between\ncitizens of the same State claiming lands and grants of different\nStates; and between a State or the citizens thereof and foreign states,\ncitizens, and subjects.\" This constitutes the entire mass of the\njudicial authority of the Union. Let us now review it in detail. It is,\nthen, to extend:\n\nFirst. To all cases in law and equity, arising under the Constitution\nand the laws of the United States. This corresponds with the two\nfirst classes of causes, which have been enumerated, as proper for the\njurisdiction of the United States. It has been asked, what is meant\nby \"cases arising under the Constitution,\" in contradiction from those\n\"arising under the laws of the United States\"? The difference has been\nalready explained. All the restrictions upon the authority of the State\nlegislatures furnish examples of it. They are not, for instance, to emit\npaper money; but the interdiction results from the Constitution, and\nwill have no connection with any law of the United States. Should paper\nmoney, notwithstanding, be emited, the controversies concerning it would\nbe cases arising under the Constitution and not the laws of the United\nStates, in the ordinary signification of the terms. This may serve as a\nsample of the whole.\n\nIt has also been asked, what need of the word \"equity\". What equitable\ncauses can grow out of the Constitution and laws of the United States?\nThere is hardly a subject of litigation between individuals, which may\nnot involve those ingredients of fraud, accident, trust, or hardship,\nwhich would render the matter an object of equitable rather than of\nlegal jurisdiction, as the distinction is known and established in\nseveral of the States. It is the peculiar province, for instance, of a\ncourt of equity to relieve against what are called hard bargains: these\nare contracts in which, though there may have been no direct fraud or\ndeceit, sufficient to invalidate them in a court of law, yet there\nmay have been some undue and unconscionable advantage taken of the\nnecessities or misfortunes of one of the parties, which a court\nof equity would not tolerate. In such cases, where foreigners were\nconcerned on either side, it would be impossible for the federal\njudicatories to do justice without an equitable as well as a legal\njurisdiction. Agreements to convey lands claimed under the grants of\ndifferent States, may afford another example of the necessity of an\nequitable jurisdiction in the federal courts. This reasoning may not be\nso palpable in those States where the formal and technical distinction\nbetween LAW and EQUITY is not maintained, as in this State, where it is\nexemplified by every day's practice.\n\nThe judiciary authority of the Union is to extend:\n\nSecond. To treaties made, or which shall be made, under the authority of\nthe United States, and to all cases affecting ambassadors, other\npublic ministers, and consuls. These belong to the fourth class of\nthe enumerated cases, as they have an evident connection with the\npreservation of the national peace.\n\nThird. To cases of admiralty and maritime jurisdiction. These form,\naltogether, the fifth of the enumerated classes of causes proper for the\ncognizance of the national courts.\n\nFourth. To controversies to which the United States shall be a party.\nThese constitute the third of those classes.\n\nFifth. To controversies between two or more States; between a State and\ncitizens of another State; between citizens of different States. These\nbelong to the fourth of those classes, and partake, in some measure, of\nthe nature of the last.\n\nSixth. To cases between the citizens of the same State, claiming lands\nunder grants of different States. These fall within the last class,\nand are the only instances in which the proposed Constitution directly\ncontemplates the cognizance of disputes between the citizens of the same\nState.\n\nSeventh. To cases between a State and the citizens thereof, and foreign\nStates, citizens, or subjects. These have been already explained to\nbelong to the fourth of the enumerated classes, and have been shown\nto be, in a peculiar manner, the proper subjects of the national\njudicature.\n\nFrom this review of the particular powers of the federal judiciary, as\nmarked out in the Constitution, it appears that they are all conformable\nto the principles which ought to have governed the structure of that\ndepartment, and which were necessary to the perfection of the system.\nIf some partial inconveniences should appear to be connected with the\nincorporation of any of them into the plan, it ought to be recollected\nthat the national legislature will have ample authority to make such\nexceptions, and to prescribe such regulations as will be calculated to\nobviate or remove these inconveniences. The possibility of particular\nmischiefs can never be viewed, by a wellinformed mind, as a solid\nobjection to a general principle, which is calculated to avoid general\nmischiefs and to obtain general advantages.\n\nPUBLIUS\n\n\n\n\nFEDERALIST No. 81\n\nThe Judiciary Continued, and the Distribution of the Judicial Authority.\n\nFrom McLEAN's Edition, New York. Wednesday, May 28, 1788.\n\nHAMILTON\n\nTo the People of the State of New York:\n\nLET US now return to the partition of the judiciary authority between\ndifferent courts, and their relations to each other.\n\n\"The judicial power of the United States is\" (by the plan of the\nconvention) \"to be vested in one Supreme Court, and in such inferior\ncourts as the Congress may, from time to time, ordain and establish.\"(1)\n\nThat there ought to be one court of supreme and final jurisdiction, is a\nproposition which is not likely to be contested. The reasons for it have\nbeen assigned in another place, and are too obvious to need repetition.\nThe only question that seems to have been raised concerning it, is,\nwhether it ought to be a distinct body or a branch of the legislature.\nThe same contradiction is observable in regard to this matter which has\nbeen remarked in several other cases. The very men who object to\nthe Senate as a court of impeachments, on the ground of an improper\nintermixture of powers, advocate, by implication at least, the propriety\nof vesting the ultimate decision of all causes, in the whole or in a\npart of the legislative body.\n\nThe arguments, or rather suggestions, upon which this charge is founded,\nare to this effect: \"The authority of the proposed Supreme Court of the\nUnited States, which is to be a separate and independent body, will be\nsuperior to that of the legislature. The power of construing the laws\naccording to the spirit of the Constitution, will enable that court to\nmould them into whatever shape it may think proper; especially as\nits decisions will not be in any manner subject to the revision or\ncorrection of the legislative body. This is as unprecedented as it is\ndangerous. In Britain, the judicial power, in the last resort, resides in\nthe House of Lords, which is a branch of the legislature; and this part\nof the British government has been imitated in the State constitutions\nin general. The Parliament of Great Britain, and the legislatures of\nthe several States, can at any time rectify, by law, the exceptionable\ndecisions of their respective courts. But the errors and usurpations\nof the Supreme Court of the United States will be uncontrollable\nand remediless.\" This, upon examination, will be found to be made up\naltogether of false reasoning upon misconceived fact.\n\nIn the first place, there is not a syllable in the plan under\nconsideration which directly empowers the national courts to construe\nthe laws according to the spirit of the Constitution, or which gives\nthem any greater latitude in this respect than may be claimed by the\ncourts of every State. I admit, however, that the Constitution ought to\nbe the standard of construction for the laws, and that wherever there is\nan evident opposition, the laws ought to give place to the Constitution.\nBut this doctrine is not deducible from any circumstance peculiar to\nthe plan of the convention, but from the general theory of a limited\nConstitution; and as far as it is true, is equally applicable to\nmost, if not to all the State governments. There can be no objection,\ntherefore, on this account, to the federal judicature which will not lie\nagainst the local judicatures in general, and which will not serve to\ncondemn every constitution that attempts to set bounds to legislative\ndiscretion.\n\nBut perhaps the force of the objection may be thought to consist in the\nparticular organization of the Supreme Court; in its being composed of\na distinct body of magistrates, instead of being one of the branches of\nthe legislature, as in the government of Great Britain and that of the\nState. To insist upon this point, the authors of the objection must\nrenounce the meaning they have labored to annex to the celebrated\nmaxim, requiring a separation of the departments of power. It shall,\nnevertheless, be conceded to them, agreeably to the interpretation given\nto that maxim in the course of these papers, that it is not violated by\nvesting the ultimate power of judging in a PART of the legislative body.\nBut though this be not an absolute violation of that excellent rule,\nyet it verges so nearly upon it, as on this account alone to be less\neligible than the mode preferred by the convention. From a body which\nhad even a partial agency in passing bad laws, we could rarely expect\na disposition to temper and moderate them in the application. The\nsame spirit which had operated in making them, would be too apt in\ninterpreting them; still less could it be expected that men who had\ninfringed the Constitution in the character of legislators, would be\ndisposed to repair the breach in the character of judges. Nor is this\nall. Every reason which recommends the tenure of good behavior for\njudicial offices, militates against placing the judiciary power, in\nthe last resort, in a body composed of men chosen for a limited period.\nThere is an absurdity in referring the determination of causes, in the\nfirst instance, to judges of permanent standing; in the last, to those\nof a temporary and mutable constitution. And there is a still greater\nabsurdity in subjecting the decisions of men, selected for their\nknowledge of the laws, acquired by long and laborious study, to the\nrevision and control of men who, for want of the same advantage, cannot\nbut be deficient in that knowledge. The members of the legislature will\nrarely be chosen with a view to those qualifications which fit men for\nthe stations of judges; and as, on this account, there will be great\nreason to apprehend all the ill consequences of defective information,\nso, on account of the natural propensity of such bodies to party\ndivisions, there will be no less reason to fear that the pestilential\nbreath of faction may poison the fountains of justice. The habit of\nbeing continually marshalled on opposite sides will be too apt to stifle\nthe voice both of law and of equity.\n\nThese considerations teach us to applaud the wisdom of those States who\nhave committed the judicial power, in the last resort, not to a part of\nthe legislature, but to distinct and independent bodies of men. Contrary\nto the supposition of those who have represented the plan of the\nconvention, in this respect, as novel and unprecedented, it is but a\ncopy of the constitutions of New Hampshire, Massachusetts, Pennsylvania,\nDelaware, Maryland, Virginia, North Carolina, South Carolina, and\nGeorgia; and the preference which has been given to those models is\nhighly to be commended.\n\nIt is not true, in the second place, that the Parliament of Great\nBritain, or the legislatures of the particular States, can rectify the\nexceptionable decisions of their respective courts, in any other sense\nthan might be done by a future legislature of the United States. The\ntheory, neither of the British, nor the State constitutions, authorizes\nthe revisal of a judicial sentence by a legislative act. Nor is there\nany thing in the proposed Constitution, more than in either of them,\nby which it is forbidden. In the former, as well as in the latter, the\nimpropriety of the thing, on the general principles of law and reason,\nis the sole obstacle. A legislature, without exceeding its province,\ncannot reverse a determination once made in a particular case; though it\nmay prescribe a new rule for future cases. This is the principle, and it\napplies in all its consequences, exactly in the same manner and extent,\nto the State governments, as to the national government now under\nconsideration. Not the least difference can be pointed out in any view\nof the subject.\n\nIt may in the last place be observed that the supposed danger of\njudiciary encroachments on the legislative authority, which has been\nupon many occasions reiterated, is in reality a phantom. Particular\nmisconstructions and contraventions of the will of the legislature may\nnow and then happen; but they can never be so extensive as to amount to\nan inconvenience, or in any sensible degree to affect the order of the\npolitical system. This may be inferred with certainty, from the general\nnature of the judicial power, from the objects to which it relates, from\nthe manner in which it is exercised, from its comparative weakness, and\nfrom its total incapacity to support its usurpations by force. And the\ninference is greatly fortified by the consideration of the important\nconstitutional check which the power of instituting impeachments in one\npart of the legislative body, and of determining upon them in the other,\nwould give to that body upon the members of the judicial department.\nThis is alone a complete security. There never can be danger that the\njudges, by a series of deliberate usurpations on the authority of the\nlegislature, would hazard the united resentment of the body intrusted\nwith it, while this body was possessed of the means of punishing their\npresumption, by degrading them from their stations. While this ought to\nremove all apprehensions on the subject, it affords, at the same time,\na cogent argument for constituting the Senate a court for the trial of\nimpeachments.\n\nHaving now examined, and, I trust, removed the objections to the\ndistinct and independent organization of the Supreme Court, I proceed to\nconsider the propriety of the power of constituting inferior courts,(2)\nand the relations which will subsist between these and the former.\n\nThe power of constituting inferior courts is evidently calculated to\nobviate the necessity of having recourse to the Supreme Court in every\ncase of federal cognizance. It is intended to enable the national\ngovernment to institute or authorize, in each State or district of the\nUnited States, a tribunal competent to the determination of matters of\nnational jurisdiction within its limits.\n\nBut why, it is asked, might not the same purpose have been accomplished\nby the instrumentality of the State courts? This admits of different\nanswers. Though the fitness and competency of those courts should\nbe allowed in the utmost latitude, yet the substance of the power in\nquestion may still be regarded as a necessary part of the plan, if it\nwere only to empower the national legislature to commit to them the\ncognizance of causes arising out of the national Constitution. To confer\nthe power of determining such causes upon the existing courts of the\nseveral States, would perhaps be as much \"to constitute tribunals,\" as\nto create new courts with the like power. But ought not a more direct\nand explicit provision to have been made in favor of the State courts?\nThere are, in my opinion, substantial reasons against such a provision:\nthe most discerning cannot foresee how far the prevalency of a\nlocal spirit may be found to disqualify the local tribunals for the\njurisdiction of national causes; whilst every man may discover, that\ncourts constituted like those of some of the States would be improper\nchannels of the judicial authority of the Union. State judges, holding\ntheir offices during pleasure, or from year to year, will be too\nlittle independent to be relied upon for an inflexible execution of the\nnational laws. And if there was a necessity for confiding the original\ncognizance of causes arising under those laws to them there would be\na correspondent necessity for leaving the door of appeal as wide as\npossible. In proportion to the grounds of confidence in, or distrust\nof, the subordinate tribunals, ought to be the facility or difficulty\nof appeals. And well satisfied as I am of the propriety of the appellate\njurisdiction, in the several classes of causes to which it is extended\nby the plan of the convention. I should consider every thing calculated\nto give, in practice, an unrestrained course to appeals, as a source of\npublic and private inconvenience.\n\nI am not sure, but that it will be found highly expedient and useful,\nto divide the United States into four or five or half a dozen districts;\nand to institute a federal court in each district, in lieu of one in\nevery State. The judges of these courts, with the aid of the State\njudges, may hold circuits for the trial of causes in the several parts\nof the respective districts. Justice through them may be administered\nwith ease and despatch; and appeals may be safely circumscribed within a\nnarrow compass. This plan appears to me at present the most eligible of\nany that could be adopted; and in order to it, it is necessary that the\npower of constituting inferior courts should exist in the full extent in\nwhich it is to be found in the proposed Constitution.\n\nThese reasons seem sufficient to satisfy a candid mind, that the want\nof such a power would have been a great defect in the plan. Let us\nnow examine in what manner the judicial authority is to be distributed\nbetween the supreme and the inferior courts of the Union.\n\nThe Supreme Court is to be invested with original jurisdiction, only \"in\ncases affecting ambassadors, other public ministers, and consuls, and\nthose in which A STATE shall be a party.\" Public ministers of every\nclass are the immediate representatives of their sovereigns. All\nquestions in which they are concerned are so directly connected with\nthe public peace, that, as well for the preservation of this, as out of\nrespect to the sovereignties they represent, it is both expedient and\nproper that such questions should be submitted in the first instance\nto the highest judicatory of the nation. Though consuls have not in\nstrictness a diplomatic character, yet as they are the public agents\nof the nations to which they belong, the same observation is in a great\nmeasure applicable to them. In cases in which a State might happen to be\na party, it would ill suit its dignity to be turned over to an inferior\ntribunal.\n\nThough it may rather be a digression from the immediate subject of this\npaper, I shall take occasion to mention here a supposition which has\nexcited some alarm upon very mistaken grounds. It has been suggested\nthat an assignment of the public securities of one State to the citizens\nof another, would enable them to prosecute that State in the federal\ncourts for the amount of those securities; a suggestion which the\nfollowing considerations prove to be without foundation.\n\nIt is inherent in the nature of sovereignty not to be amenable to the\nsuit of an individual without its consent. This is the general sense,\nand the general practice of mankind; and the exemption, as one of the\nattributes of sovereignty, is now enjoyed by the government of every\nState in the Union. Unless, therefore, there is a surrender of this\nimmunity in the plan of the convention, it will remain with the States,\nand the danger intimated must be merely ideal. The circumstances\nwhich are necessary to produce an alienation of State sovereignty\nwere discussed in considering the article of taxation, and need not be\nrepeated here. A recurrence to the principles there established will\nsatisfy us, that there is no color to pretend that the State governments\nwould, by the adoption of that plan, be divested of the privilege of\npaying their own debts in their own way, free from every constraint\nbut that which flows from the obligations of good faith. The contracts\nbetween a nation and individuals are only binding on the conscience\nof the sovereign, and have no pretensions to a compulsive force. They\nconfer no right of action, independent of the sovereign will. To what\npurpose would it be to authorize suits against States for the debts they\nowe? How could recoveries be enforced? It is evident, it could not be\ndone without waging war against the contracting State; and to ascribe\nto the federal courts, by mere implication, and in destruction of a\npre-existing right of the State governments, a power which would involve\nsuch a consequence, would be altogether forced and unwarrantable.\n\nLet us resume the train of our observations. We have seen that the\noriginal jurisdiction of the Supreme Court would be confined to two\nclasses of causes, and those of a nature rarely to occur. In all other\ncases of federal cognizance, the original jurisdiction would appertain\nto the inferior tribunals; and the Supreme Court would have nothing more\nthan an appellate jurisdiction, \"with such exceptions and under such\nregulations as the Congress shall make.\"\n\nThe propriety of this appellate jurisdiction has been scarcely called\nin question in regard to matters of law; but the clamors have been loud\nagainst it as applied to matters of fact. Some well-intentioned men in\nthis State, deriving their notions from the language and forms which\nobtain in our courts, have been induced to consider it as an implied\nsupersedure of the trial by jury, in favor of the civil-law mode of\ntrial, which prevails in our courts of admiralty, probate, and chancery.\nA technical sense has been affixed to the term \"appellate,\" which, in\nour law parlance, is commonly used in reference to appeals in the course\nof the civil law. But if I am not misinformed, the same meaning would\nnot be given to it in any part of New England. There an appeal from one\njury to another, is familiar both in language and practice, and is even\na matter of course, until there have been two verdicts on one side. The\nword \"appellate,\" therefore, will not be understood in the same sense in\nNew England as in New York, which shows the impropriety of a technical\ninterpretation derived from the jurisprudence of any particular State.\nThe expression, taken in the abstract, denotes nothing more than the\npower of one tribunal to review the proceedings of another, either as\nto the law or fact, or both. The mode of doing it may depend on ancient\ncustom or legislative provision (in a new government it must depend on\nthe latter), and may be with or without the aid of a jury, as may be\njudged advisable. If, therefore, the re-examination of a fact once\ndetermined by a jury, should in any case be admitted under the proposed\nConstitution, it may be so regulated as to be done by a second jury,\neither by remanding the cause to the court below for a second trial of\nthe fact, or by directing an issue immediately out of the Supreme Court.\n\nBut it does not follow that the re-examination of a fact once\nascertained by a jury, will be permitted in the Supreme Court. Why may\nnot it be said, with the strictest propriety, when a writ of error is\nbrought from an inferior to a superior court of law in this State, that\nthe latter has jurisdiction of the fact as well as the law? It is true\nit cannot institute a new inquiry concerning the fact, but it takes\ncognizance of it as it appears upon the record, and pronounces the law\narising upon it.(3) This is jurisdiction of both fact and law; nor is\nit even possible to separate them. Though the common-law courts of this\nState ascertain disputed facts by a jury, yet they unquestionably have\njurisdiction of both fact and law; and accordingly when the former is\nagreed in the pleadings, they have no recourse to a jury, but proceed\nat once to judgment. I contend, therefore, on this ground, that the\nexpressions, \"appellate jurisdiction, both as to law and fact,\" do not\nnecessarily imply a re-examination in the Supreme Court of facts decided\nby juries in the inferior courts.\n\nThe following train of ideas may well be imagined to have influenced\nthe convention, in relation to this particular provision. The appellate\njurisdiction of the Supreme Court (it may have been argued) will extend\nto causes determinable in different modes, some in the course of the\nCOMMON LAW, others in the course of the CIVIL LAW. In the former,\nthe revision of the law only will be, generally speaking, the proper\nprovince of the Supreme Court; in the latter, the re-examination of the\nfact is agreeable to usage, and in some cases, of which prize causes are\nan example, might be essential to the preservation of the public peace.\nIt is therefore necessary that the appellate jurisdiction should, in\ncertain cases, extend in the broadest sense to matters of fact. It will\nnot answer to make an express exception of cases which shall have been\noriginally tried by a jury, because in the courts of some of the States\nall causes are tried in this mode(4); and such an exception would\npreclude the revision of matters of fact, as well where it might be\nproper, as where it might be improper. To avoid all inconveniencies,\nit will be safest to declare generally, that the Supreme Court shall\npossess appellate jurisdiction both as to law and fact, and that this\njurisdiction shall be subject to such exceptions and regulations as the\nnational legislature may prescribe. This will enable the government\nto modify it in such a manner as will best answer the ends of public\njustice and security.\n\nThis view of the matter, at any rate, puts it out of all doubt that\nthe supposed abolition of the trial by jury, by the operation of this\nprovision, is fallacious and untrue. The legislature of the United\nStates would certainly have full power to provide, that in appeals to\nthe Supreme Court there should be no re-examination of facts where they\nhad been tried in the original causes by juries. This would certainly\nbe an authorized exception; but if, for the reason already intimated, it\nshould be thought too extensive, it might be qualified with a limitation\nto such causes only as are determinable at common law in that mode of\ntrial.\n\nThe amount of the observations hitherto made on the authority of the\njudicial department is this: that it has been carefully restricted\nto those causes which are manifestly proper for the cognizance of the\nnational judicature; that in the partition of this authority a very\nsmall portion of original jurisdiction has been preserved to the Supreme\nCourt, and the rest consigned to the subordinate tribunals; that the\nSupreme Court will possess an appellate jurisdiction, both as to law and\nfact, in all the cases referred to them, both subject to any exceptions\nand regulations which may be thought advisable; that this appellate\njurisdiction does, in no case, abolish the trial by jury; and that an\nordinary degree of prudence and integrity in the national councils\nwill insure us solid advantages from the establishment of the proposed\njudiciary, without exposing us to any of the inconveniences which have\nbeen predicted from that source.\n\nPUBLIUS\n\n1. Article 3, Sec. 1.\n\n2. This power has been absurdly represented as intended to abolish\nall the county courts in the several States, which are commonly called\ninferior courts. But the expressions of the Constitution are, to\nconstitute \"tribunals INFERIOR TO THE SUPREME COURT\"; and the evident\ndesign of the provision is to enable the institution of local courts,\nsubordinate to the Supreme, either in States or larger districts. It is\nridiculous to imagine that county courts were in contemplation.\n\n3. This word is composed of JUS and DICTIO, juris dictio or a speaking\nand pronouncing of the law.\n\n4. I hold that the States will have concurrent jurisdiction with the\nsubordinate federal judicatories, in many cases of federal cognizance,\nas will be explained in my next paper.\n\n\n\n\nFEDERALIST No. 82\n\nThe Judiciary Continued.\n\nFrom McLEAN's Edition, New York. Wednesday, May 28, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE erection of a new government, whatever care or wisdom may\ndistinguish the work, cannot fail to originate questions of intricacy\nand nicety; and these may, in a particular manner, be expected to flow\nfrom the establishment of a constitution founded upon the total or\npartial incorporation of a number of distinct sovereignties. 'Tis time\nonly that can mature and perfect so compound a system, can liquidate\nthe meaning of all the parts, and can adjust them to each other in a\nharmonious and consistent WHOLE.\n\nSuch questions, accordingly, have arisen upon the plan proposed by the\nconvention, and particularly concerning the judiciary department. The\nprincipal of these respect the situation of the State courts in regard\nto those causes which are to be submitted to federal jurisdiction.\nIs this to be exclusive, or are those courts to possess a concurrent\njurisdiction? If the latter, in what relation will they stand to the\nnational tribunals? These are inquiries which we meet with in the mouths\nof men of sense, and which are certainly entitled to attention.\n\nThe principles established in a former paper(1) teach us that the States\nwill retain all pre-existing authorities which may not be exclusively\ndelegated to the federal head; and that this exclusive delegation can\nonly exist in one of three cases: where an exclusive authority is, in\nexpress terms, granted to the Union; or where a particular authority is\ngranted to the Union, and the exercise of a like authority is prohibited\nto the States; or where an authority is granted to the Union, with which\na similar authority in the States would be utterly incompatible. Though\nthese principles may not apply with the same force to the judiciary as\nto the legislative power, yet I am inclined to think that they are, in\nthe main, just with respect to the former, as well as the latter. And\nunder this impression, I shall lay it down as a rule, that the State\ncourts will retain the jurisdiction they now have, unless it appears to\nbe taken away in one of the enumerated modes.\n\nThe only thing in the proposed Constitution, which wears the appearance\nof confining the causes of federal cognizance to the federal courts,\nis contained in this passage: \"THE JUDICIAL POWER of the United States\nshall be vested in one Supreme Court, and in such inferior courts as\nthe Congress shall from time to time ordain and establish.\" This might\neither be construed to signify, that the supreme and subordinate courts\nof the Union should alone have the power of deciding those causes to\nwhich their authority is to extend; or simply to denote, that the organs\nof the national judiciary should be one Supreme Court, and as many\nsubordinate courts as Congress should think proper to appoint; or in\nother words, that the United States should exercise the judicial power\nwith which they are to be invested, through one supreme tribunal, and\na certain number of inferior ones, to be instituted by them. The first\nexcludes, the last admits, the concurrent jurisdiction of the State\ntribunals; and as the first would amount to an alienation of State power\nby implication, the last appears to me the most natural and the most\ndefensible construction.\n\nBut this doctrine of concurrent jurisdiction is only clearly applicable\nto those descriptions of causes of which the State courts have previous\ncognizance. It is not equally evident in relation to cases which may\ngrow out of, and be peculiar to, the Constitution to be established; for\nnot to allow the State courts a right of jurisdiction in such cases, can\nhardly be considered as the abridgment of a pre-existing authority. I\nmean not therefore to contend that the United States, in the course\nof legislation upon the objects intrusted to their direction, may not\ncommit the decision of causes arising upon a particular regulation to\nthe federal courts solely, if such a measure should be deemed expedient;\nbut I hold that the State courts will be divested of no part of their\nprimitive jurisdiction, further than may relate to an appeal; and I\nam even of opinion that in every case in which they were not expressly\nexcluded by the future acts of the national legislature, they will of\ncourse take cognizance of the causes to which those acts may give birth.\nThis I infer from the nature of judiciary power, and from the general\ngenius of the system. The judiciary power of every government looks\nbeyond its own local or municipal laws, and in civil cases lays hold\nof all subjects of litigation between parties within its jurisdiction,\nthough the causes of dispute are relative to the laws of the most\ndistant part of the globe. Those of Japan, not less than of New York,\nmay furnish the objects of legal discussion to our courts. When in\naddition to this we consider the State governments and the national\ngovernments, as they truly are, in the light of kindred systems, and as\nparts of ONE WHOLE, the inference seems to be conclusive, that the State\ncourts would have a concurrent jurisdiction in all cases arising under\nthe laws of the Union, where it was not expressly prohibited.\n\nHere another question occurs: What relation would subsist between the\nnational and State courts in these instances of concurrent jurisdiction?\nI answer, that an appeal would certainly lie from the latter, to the\nSupreme Court of the United States. The Constitution in direct terms\ngives an appellate jurisdiction to the Supreme Court in all the\nenumerated cases of federal cognizance in which it is not to have an\noriginal one, without a single expression to confine its operation to\nthe inferior federal courts. The objects of appeal, not the tribunals\nfrom which it is to be made, are alone contemplated. From this\ncircumstance, and from the reason of the thing, it ought to be construed\nto extend to the State tribunals. Either this must be the case, or the\nlocal courts must be excluded from a concurrent jurisdiction in matters\nof national concern, else the judiciary authority of the Union may be\neluded at the pleasure of every plaintiff or prosecutor. Neither of\nthese consequences ought, without evident necessity, to be involved; the\nlatter would be entirely inadmissible, as it would defeat some of the\nmost important and avowed purposes of the proposed government, and would\nessentially embarrass its measures. Nor do I perceive any foundation for\nsuch a supposition. Agreeably to the remark already made, the national\nand State systems are to be regarded as ONE WHOLE. The courts of the\nlatter will of course be natural auxiliaries to the execution of the\nlaws of the Union, and an appeal from them will as naturally lie to that\ntribunal which is destined to unite and assimilate the principles of\nnational justice and the rules of national decisions. The evident aim\nof the plan of the convention is, that all the causes of the specified\nclasses shall, for weighty public reasons, receive their original or\nfinal determination in the courts of the Union. To confine, therefore,\nthe general expressions giving appellate jurisdiction to the Supreme\nCourt, to appeals from the subordinate federal courts, instead of\nallowing their extension to the State courts, would be to abridge the\nlatitude of the terms, in subversion of the intent, contrary to every\nsound rule of interpretation.\n\nBut could an appeal be made to lie from the State courts to the\nsubordinate federal judicatories? This is another of the questions\nwhich have been raised, and of greater difficulty than the former. The\nfollowing considerations countenance the affirmative. The plan of the\nconvention, in the first place, authorizes the national legislature \"to\nconstitute tribunals inferior to the Supreme Court.\"(2) It declares, in\nthe next place, that \"the JUDICIAL POWER of the United States shall be\nvested in one Supreme Court, and in such inferior courts as Congress\nshall ordain and establish\"; and it then proceeds to enumerate the cases\nto which this judicial power shall extend. It afterwards divides the\njurisdiction of the Supreme Court into original and appellate, but\ngives no definition of that of the subordinate courts. The only outlines\ndescribed for them, are that they shall be \"inferior to the Supreme\nCourt,\" and that they shall not exceed the specified limits of the\nfederal judiciary. Whether their authority shall be original or\nappellate, or both, is not declared. All this seems to be left to the\ndiscretion of the legislature. And this being the case, I perceive at\npresent no impediment to the establishment of an appeal from the State\ncourts to the subordinate national tribunals; and many advantages\nattending the power of doing it may be imagined. It would diminish the\nmotives to the multiplication of federal courts, and would admit of\narrangements calculated to contract the appellate jurisdiction of the\nSupreme Court. The State tribunals may then be left with a more entire\ncharge of federal causes; and appeals, in most cases in which they may\nbe deemed proper, instead of being carried to the Supreme Court, may be\nmade to lie from the State courts to district courts of the Union.\n\nPUBLIUS\n\n1. No. 31.\n\n2. Sec. 8, Art. 1.\n\n\n\n\nFEDERALIST No. 83\n\nThe Judiciary Continued in Relation to Trial by Jury\n\nFrom MCLEAN's Edition, New York. Wednesday, May 28, 1788\n\n\nHAMILTON\n\nTo the People of the State of New York:\n\nTHE objection to the plan of the convention, which has met with most\nsuccess in this State, and perhaps in several of the other States, is\nthat relative to the want of a constitutional provision for the trial\nby jury in civil cases. The disingenuous form in which this objection\nis usually stated has been repeatedly adverted to and exposed, but\ncontinues to be pursued in all the conversations and writings of the\nopponents of the plan. The mere silence of the Constitution in regard to\ncivil causes, is represented as an abolition of the trial by jury,\nand the declamations to which it has afforded a pretext are artfully\ncalculated to induce a persuasion that this pretended abolition is\ncomplete and universal, extending not only to every species of civil,\nbut even to criminal causes. To argue with respect to the latter would,\nhowever, be as vain and fruitless as to attempt the serious proof of the\nexistence of matter, or to demonstrate any of those propositions which,\nby their own internal evidence, force conviction, when expressed in\nlanguage adapted to convey their meaning.\n\nWith regard to civil causes, subtleties almost too contemptible for\nrefutation have been employed to countenance the surmise that a thing\nwhich is only not provided for, is entirely abolished. Every man of\ndiscernment must at once perceive the wide difference between silence\nand abolition. But as the inventors of this fallacy have attempted to\nsupport it by certain legal maxims of interpretation, which they have\nperverted from their true meaning, it may not be wholly useless to\nexplore the ground they have taken.\n\nThe maxims on which they rely are of this nature: \"A specification of\nparticulars is an exclusion of generals\"; or, \"The expression of one\nthing is the exclusion of another.\" Hence, say they, as the Constitution\nhas established the trial by jury in criminal cases, and is silent in\nrespect to civil, this silence is an implied prohibition of trial by\njury in regard to the latter.\n\nThe rules of legal interpretation are rules of common sense, adopted by\nthe courts in the construction of the laws. The true test, therefore,\nof a just application of them is its conformity to the source from which\nthey are derived. This being the case, let me ask if it is consistent\nwith common-sense to suppose that a provision obliging the legislative\npower to commit the trial of criminal causes to juries, is a privation\nof its right to authorize or permit that mode of trial in other\ncases? Is it natural to suppose, that a command to do one thing is a\nprohibition to the doing of another, which there was a previous power to\ndo, and which is not incompatible with the thing commanded to be done?\nIf such a supposition would be unnatural and unreasonable, it cannot be\nrational to maintain that an injunction of the trial by jury in certain\ncases is an interdiction of it in others.\n\nA power to constitute courts is a power to prescribe the mode of trial;\nand consequently, if nothing was said in the Constitution on the subject\nof juries, the legislature would be at liberty either to adopt that\ninstitution or to let it alone. This discretion, in regard to criminal\ncauses, is abridged by the express injunction of trial by jury in all\nsuch cases; but it is, of course, left at large in relation to civil\ncauses, there being a total silence on this head. The specification of\nan obligation to try all criminal causes in a particular mode, excludes\nindeed the obligation or necessity of employing the same mode in civil\ncauses, but does not abridge the power of the legislature to exercise\nthat mode if it should be thought proper. The pretense, therefore, that\nthe national legislature would not be at full liberty to submit all the\ncivil causes of federal cognizance to the determination of juries, is a\npretense destitute of all just foundation.\n\nFrom these observations this conclusion results: that the trial by jury\nin civil cases would not be abolished; and that the use attempted to\nbe made of the maxims which have been quoted, is contrary to reason and\ncommon-sense, and therefore not admissible. Even if these maxims had a\nprecise technical sense, corresponding with the idea of those who employ\nthem upon the present occasion, which, however, is not the case, they\nwould still be inapplicable to a constitution of government. In relation\nto such a subject, the natural and obvious sense of its provisions,\napart from any technical rules, is the true criterion of construction.\n\nHaving now seen that the maxims relied upon will not bear the use made\nof them, let us endeavor to ascertain their proper use and true meaning.\nThis will be best done by examples. The plan of the convention declares\nthat the power of Congress, or, in other words, of the national\nlegislature, shall extend to certain enumerated cases. This\nspecification of particulars evidently excludes all pretension to a\ngeneral legislative authority, because an affirmative grant of special\npowers would be absurd, as well as useless, if a general authority was\nintended.\n\nIn like manner the judicial authority of the federal judicatures is\ndeclared by the Constitution to comprehend certain cases particularly\nspecified. The expression of those cases marks the precise limits,\nbeyond which the federal courts cannot extend their jurisdiction,\nbecause the objects of their cognizance being enumerated, the\nspecification would be nugatory if it did not exclude all ideas of more\nextensive authority.\n\nThese examples are sufficient to elucidate the maxims which have been\nmentioned, and to designate the manner in which they should be used. But\nthat there may be no misapprehensions upon this subject, I shall add one\ncase more, to demonstrate the proper use of these maxims, and the abuse\nwhich has been made of them.\n\nLet us suppose that by the laws of this State a married woman was\nincapable of conveying her estate, and that the legislature, considering\nthis as an evil, should enact that she might dispose of her property by\ndeed executed in the presence of a magistrate. In such a case there can\nbe no doubt but the specification would amount to an exclusion of any\nother mode of conveyance, because the woman having no previous power to\nalienate her property, the specification determines the particular mode\nwhich she is, for that purpose, to avail herself of. But let us further\nsuppose that in a subsequent part of the same act it should be declared\nthat no woman should dispose of any estate of a determinate value\nwithout the consent of three of her nearest relations, signified by\ntheir signing the deed; could it be inferred from this regulation that\na married woman might not procure the approbation of her relations to\na deed for conveying property of inferior value? The position is too\nabsurd to merit a refutation, and yet this is precisely the position\nwhich those must establish who contend that the trial by juries in civil\ncases is abolished, because it is expressly provided for in cases of a\ncriminal nature.\n\nFrom these observations it must appear unquestionably true, that trial\nby jury is in no case abolished by the proposed Constitution, and it is\nequally true, that in those controversies between individuals in\nwhich the great body of the people are likely to be interested, that\ninstitution will remain precisely in the same situation in which it is\nplaced by the State constitutions, and will be in no degree altered\nor influenced by the adoption of the plan under consideration. The\nfoundation of this assertion is, that the national judiciary will have\nno cognizance of them, and of course they will remain determinable as\nheretofore by the State courts only, and in the manner which the State\nconstitutions and laws prescribe. All land causes, except where claims\nunder the grants of different States come into question, and all other\ncontroversies between the citizens of the same State, unless where they\ndepend upon positive violations of the articles of union, by acts of the\nState legislatures, will belong exclusively to the jurisdiction of the\nState tribunals. Add to this, that admiralty causes, and almost all\nthose which are of equity jurisdiction, are determinable under our own\ngovernment without the intervention of a jury, and the inference from\nthe whole will be, that this institution, as it exists with us at\npresent, cannot possibly be affected to any great extent by the proposed\nalteration in our system of government.\n\nThe friends and adversaries of the plan of the convention, if they agree\nin nothing else, concur at least in the value they set upon the trial\nby jury; or if there is any difference between them it consists in this:\nthe former regard it as a valuable safeguard to liberty; the latter\nrepresent it as the very palladium of free government. For my own\npart, the more the operation of the institution has fallen under my\nobservation, the more reason I have discovered for holding it in high\nestimation; and it would be altogether superfluous to examine to\nwhat extent it deserves to be esteemed useful or essential in a\nrepresentative republic, or how much more merit it may be entitled to,\nas a defense against the oppressions of an hereditary monarch, than as\na barrier to the tyranny of popular magistrates in a popular government.\nDiscussions of this kind would be more curious than beneficial, as all\nare satisfied of the utility of the institution, and of its friendly\naspect to liberty. But I must acknowledge that I cannot readily discern\nthe inseparable connection between the existence of liberty, and the\ntrial by jury in civil cases. Arbitrary impeachments, arbitrary methods\nof prosecuting pretended offenses, and arbitrary punishments upon\narbitrary convictions, have ever appeared to me to be the great\nengines of judicial despotism; and these have all relation to criminal\nproceedings. The trial by jury in criminal cases, aided by the habeas\ncorpus act, seems therefore to be alone concerned in the question. And\nboth of these are provided for, in the most ample manner, in the plan of\nthe convention.\n\nIt has been observed, that trial by jury is a safeguard against an\noppressive exercise of the power of taxation. This observation deserves\nto be canvassed.\n\nIt is evident that it can have no influence upon the legislature, in\nregard to the amount of taxes to be laid, to the objects upon which they\nare to be imposed, or to the rule by which they are to be apportioned.\nIf it can have any influence, therefore, it must be upon the mode of\ncollection, and the conduct of the officers intrusted with the execution\nof the revenue laws.\n\nAs to the mode of collection in this State, under our own Constitution,\nthe trial by jury is in most cases out of use. The taxes are usually\nlevied by the more summary proceeding of distress and sale, as in cases\nof rent. And it is acknowledged on all hands, that this is essential to\nthe efficacy of the revenue laws. The dilatory course of a trial at\nlaw to recover the taxes imposed on individuals, would neither suit the\nexigencies of the public nor promote the convenience of the citizens. It\nwould often occasion an accumulation of costs, more burdensome than the\noriginal sum of the tax to be levied.\n\nAnd as to the conduct of the officers of the revenue, the provision in\nfavor of trial by jury in criminal cases, will afford the security\naimed at. Wilful abuses of a public authority, to the oppression of the\nsubject, and every species of official extortion, are offenses against\nthe government, for which the persons who commit them may be indicted\nand punished according to the circumstances of the case.\n\nThe excellence of the trial by jury in civil cases appears to depend\non circumstances foreign to the preservation of liberty. The strongest\nargument in its favor is, that it is a security against corruption.\nAs there is always more time and better opportunity to tamper with a\nstanding body of magistrates than with a jury summoned for the occasion,\nthere is room to suppose that a corrupt influence would more easily\nfind its way to the former than to the latter. The force of this\nconsideration is, however, diminished by others. The sheriff, who is\nthe summoner of ordinary juries, and the clerks of courts, who have the\nnomination of special juries, are themselves standing officers, and,\nacting individually, may be supposed more accessible to the touch\nof corruption than the judges, who are a collective body. It is not\ndifficult to see, that it would be in the power of those officers to\nselect jurors who would serve the purpose of the party as well as a\ncorrupted bench. In the next place, it may fairly be supposed,\nthat there would be less difficulty in gaining some of the jurors\npromiscuously taken from the public mass, than in gaining men who had\nbeen chosen by the government for their probity and good character. But\nmaking every deduction for these considerations, the trial by jury must\nstill be a valuable check upon corruption. It greatly multiplies the\nimpediments to its success. As matters now stand, it would be necessary\nto corrupt both court and jury; for where the jury have gone evidently\nwrong, the court will generally grant a new trial, and it would be in\nmost cases of little use to practice upon the jury, unless the court\ncould be likewise gained. Here then is a double security; and it will\nreadily be perceived that this complicated agency tends to preserve the\npurity of both institutions. By increasing the obstacles to success, it\ndiscourages attempts to seduce the integrity of either. The temptations\nto prostitution which the judges might have to surmount, must certainly\nbe much fewer, while the co-operation of a jury is necessary, than they\nmight be, if they had themselves the exclusive determination of all\ncauses.\n\nNotwithstanding, therefore, the doubts I have expressed, as to the\nessentiality of trial by jury in civil cases to liberty, I admit that\nit is in most cases, under proper regulations, an excellent method of\ndetermining questions of property; and that on this account alone it\nwould be entitled to a constitutional provision in its favor if it were\npossible to fix the limits within which it ought to be comprehended.\nThere is, however, in all cases, great difficulty in this; and men not\nblinded by enthusiasm must be sensible that in a federal government,\nwhich is a composition of societies whose ideas and institutions in\nrelation to the matter materially vary from each other, that difficulty\nmust be not a little augmented. For my own part, at every new view\nI take of the subject, I become more convinced of the reality of\nthe obstacles which, we are authoritatively informed, prevented the\ninsertion of a provision on this head in the plan of the convention.\n\nThe great difference between the limits of the jury trial in different\nStates is not generally understood; and as it must have considerable\ninfluence on the sentence we ought to pass upon the omission complained\nof in regard to this point, an explanation of it is necessary. In this\nState, our judicial establishments resemble, more nearly than in any\nother, those of Great Britain. We have courts of common law, courts\nof probates (analogous in certain matters to the spiritual courts in\nEngland), a court of admiralty and a court of chancery. In the courts\nof common law only, the trial by jury prevails, and this with some\nexceptions. In all the others a single judge presides, and proceeds\nin general either according to the course of the canon or civil law,\nwithout the aid of a jury.(1) In New Jersey, there is a court of\nchancery which proceeds like ours, but neither courts of admiralty nor\nof probates, in the sense in which these last are established with us.\nIn that State the courts of common law have the cognizance of those\ncauses which with us are determinable in the courts of admiralty and of\nprobates, and of course the jury trial is more extensive in New Jersey\nthan in New York. In Pennsylvania, this is perhaps still more the case,\nfor there is no court of chancery in that State, and its common-law\ncourts have equity jurisdiction. It has a court of admiralty, but\nnone of probates, at least on the plan of ours. Delaware has in these\nrespects imitated Pennsylvania. Maryland approaches more nearly to New\nYork, as does also Virginia, except that the latter has a plurality of\nchancellors. North Carolina bears most affinity to Pennsylvania; South\nCarolina to Virginia. I believe, however, that in some of those States\nwhich have distinct courts of admiralty, the causes depending in them\nare triable by juries. In Georgia there are none but common-law courts,\nand an appeal of course lies from the verdict of one jury to another,\nwhich is called a special jury, and for which a particular mode of\nappointment is marked out. In Connecticut, they have no distinct courts\neither of chancery or of admiralty, and their courts of probates have no\njurisdiction of causes. Their common-law courts have admiralty and, to\na certain extent, equity jurisdiction. In cases of importance, their\nGeneral Assembly is the only court of chancery. In Connecticut,\ntherefore, the trial by jury extends in practice further than in\nany other State yet mentioned. Rhode Island is, I believe, in this\nparticular, pretty much in the situation of Connecticut. Massachusetts\nand New Hampshire, in regard to the blending of law, equity, and\nadmiralty jurisdictions, are in a similar predicament. In the four\nEastern States, the trial by jury not only stands upon a broader\nfoundation than in the other States, but it is attended with a\npeculiarity unknown, in its full extent, to any of them. There is an\nappeal of course from one jury to another, till there have been two\nverdicts out of three on one side.\n\nFrom this sketch it appears that there is a material diversity, as well\nin the modification as in the extent of the institution of trial by jury\nin civil cases, in the several States; and from this fact these obvious\nreflections flow: first, that no general rule could have been fixed upon\nby the convention which would have corresponded with the circumstances\nof all the States; and secondly, that more or at least as much might\nhave been hazarded by taking the system of any one State for a standard,\nas by omitting a provision altogether and leaving the matter, as has\nbeen done, to legislative regulation.\n\nThe propositions which have been made for supplying the omission have\nrather served to illustrate than to obviate the difficulty of the thing.\nThe minority of Pennsylvania have proposed this mode of expression for\nthe purpose--\"Trial by jury shall be as heretofore\"--and this I maintain\nwould be senseless and nugatory. The United States, in their united or\ncollective capacity, are the OBJECT to which all general provisions\nin the Constitution must necessarily be construed to refer. Now it is\nevident that though trial by jury, with various limitations, is known\nin each State individually, yet in the United States, as such, it is at\nthis time altogether unknown, because the present federal government\nhas no judiciary power whatever; and consequently there is no proper\nantecedent or previous establishment to which the term heretofore\ncould relate. It would therefore be destitute of a precise meaning, and\ninoperative from its uncertainty.\n\nAs, on the one hand, the form of the provision would not fulfil the\nintent of its proposers, so, on the other, if I apprehend that intent\nrightly, it would be in itself inexpedient. I presume it to be, that\ncauses in the federal courts should be tried by jury, if, in the State\nwhere the courts sat, that mode of trial would obtain in a similar case\nin the State courts; that is to say, admiralty causes should be tried in\nConnecticut by a jury, in New York without one. The capricious operation\nof so dissimilar a method of trial in the same cases, under the same\ngovernment, is of itself sufficient to indispose every wellregulated\njudgment towards it. Whether the cause should be tried with or without\na jury, would depend, in a great number of cases, on the accidental\nsituation of the court and parties.\n\nBut this is not, in my estimation, the greatest objection. I feel a deep\nand deliberate conviction that there are many cases in which the trial\nby jury is an ineligible one. I think it so particularly in cases which\nconcern the public peace with foreign nations--that is, in most cases\nwhere the question turns wholly on the laws of nations. Of this nature,\namong others, are all prize causes. Juries cannot be supposed competent\nto investigations that require a thorough knowledge of the laws and\nusages of nations; and they will sometimes be under the influence of\nimpressions which will not suffer them to pay sufficient regard to those\nconsiderations of public policy which ought to guide their inquiries.\nThere would of course be always danger that the rights of other nations\nmight be infringed by their decisions, so as to afford occasions of\nreprisal and war. Though the proper province of juries be to determine\nmatters of fact, yet in most cases legal consequences are complicated\nwith fact in such a manner as to render a separation impracticable.\n\nIt will add great weight to this remark, in relation to prize causes, to\nmention that the method of determining them has been thought worthy of\nparticular regulation in various treaties between different powers of\nEurope, and that, pursuant to such treaties, they are determinable in\nGreat Britain, in the last resort, before the king himself, in his privy\ncouncil, where the fact, as well as the law, undergoes a re-examination.\nThis alone demonstrates the impolicy of inserting a fundamental\nprovision in the Constitution which would make the State systems a\nstandard for the national government in the article under consideration,\nand the danger of encumbering the government with any constitutional\nprovisions the propriety of which is not indisputable.\n\nMy convictions are equally strong that great advantages result from the\nseparation of the equity from the law jurisdiction, and that the causes\nwhich belong to the former would be improperly committed to juries.\nThe great and primary use of a court of equity is to give relief in\nextraordinary cases, which are exceptions(2) to general rules. To unite\nthe jurisdiction of such cases with the ordinary jurisdiction, must have\na tendency to unsettle the general rules, and to subject every case that\narises to a special determination; while a separation of the one from\nthe other has the contrary effect of rendering one a sentinel over the\nother, and of keeping each within the expedient limits. Besides this,\nthe circumstances that constitute cases proper for courts of equity are\nin many instances so nice and intricate, that they are incompatible with\nthe genius of trials by jury. They require often such long, deliberate,\nand critical investigation as would be impracticable to men called from\ntheir occupations, and obliged to decide before they were permitted\nto return to them. The simplicity and expedition which form the\ndistinguishing characters of this mode of trial require that the matter\nto be decided should be reduced to some single and obvious point; while\nthe litigations usual in chancery frequently comprehend a long train of\nminute and independent particulars.\n\nIt is true that the separation of the equity from the legal jurisdiction\nis peculiar to the English system of jurisprudence: which is the model\nthat has been followed in several of the States. But it is equally true\nthat the trial by jury has been unknown in every case in which they have\nbeen united. And the separation is essential to the preservation of that\ninstitution in its pristine purity. The nature of a court of equity will\nreadily permit the extension of its jurisdiction to matters of law;\nbut it is not a little to be suspected, that the attempt to extend the\njurisdiction of the courts of law to matters of equity will not only\nbe unproductive of the advantages which may be derived from courts of\nchancery, on the plan upon which they are established in this State, but\nwill tend gradually to change the nature of the courts of law, and to\nundermine the trial by jury, by introducing questions too complicated\nfor a decision in that mode.\n\nThese appeared to be conclusive reasons against incorporating the\nsystems of all the States, in the formation of the national judiciary,\naccording to what may be conjectured to have been the attempt of the\nPennsylvania minority. Let us now examine how far the proposition of\nMassachusetts is calculated to remedy the supposed defect.\n\nIt is in this form: \"In civil actions between citizens of different\nStates, every issue of fact, arising in actions at common law, may be\ntried by a jury if the parties, or either of them request it.\"\n\nThis, at best, is a proposition confined to one description of causes;\nand the inference is fair, either that the Massachusetts convention\nconsidered that as the only class of federal causes, in which the\ntrial by jury would be proper; or that if desirous of a more extensive\nprovision, they found it impracticable to devise one which would\nproperly answer the end. If the first, the omission of a regulation\nrespecting so partial an object can never be considered as a\nmaterial imperfection in the system. If the last, it affords a strong\ncorroboration of the extreme difficulty of the thing.\n\nBut this is not all: if we advert to the observations already made\nrespecting the courts that subsist in the several States of the Union,\nand the different powers exercised by them, it will appear that there\nare no expressions more vague and indeterminate than those which\nhave been employed to characterize that species of causes which it\nis intended shall be entitled to a trial by jury. In this State, the\nboundaries between actions at common law and actions of equitable\njurisdiction, are ascertained in conformity to the rules which prevail\nin England upon that subject. In many of the other States the boundaries\nare less precise. In some of them every cause is to be tried in a court\nof common law, and upon that foundation every action may be considered\nas an action at common law, to be determined by a jury, if the parties,\nor either of them, choose it. Hence the same irregularity and confusion\nwould be introduced by a compliance with this proposition, that I\nhave already noticed as resulting from the regulation proposed by\nthe Pennsylvania minority. In one State a cause would receive its\ndetermination from a jury, if the parties, or either of them, requested\nit; but in another State, a cause exactly similar to the other, must\nbe decided without the intervention of a jury, because the State\njudicatories varied as to common-law jurisdiction.\n\nIt is obvious, therefore, that the Massachusetts proposition, upon this\nsubject cannot operate as a general regulation, until some uniform plan,\nwith respect to the limits of common-law and equitable jurisdictions,\nshall be adopted by the different States. To devise a plan of that kind\nis a task arduous in itself, and which it would require much time\nand reflection to mature. It would be extremely difficult, if not\nimpossible, to suggest any general regulation that would be acceptable\nto all the States in the Union, or that would perfectly quadrate with\nthe several State institutions.\n\nIt may be asked, Why could not a reference have been made to the\nconstitution of this State, taking that, which is allowed by me to be a\ngood one, as a standard for the United States? I answer that it is not\nvery probable the other States would entertain the same opinion of our\ninstitutions as we do ourselves. It is natural to suppose that they are\nhitherto more attached to their own, and that each would struggle for\nthe preference. If the plan of taking one State as a model for the whole\nhad been thought of in the convention, it is to be presumed that the\nadoption of it in that body would have been rendered difficult by the\npredilection of each representation in favor of its own government; and\nit must be uncertain which of the States would have been taken as the\nmodel. It has been shown that many of them would be improper ones. And\nI leave it to conjecture, whether, under all circumstances, it is most\nlikely that New York, or some other State, would have been preferred.\nBut admit that a judicious selection could have been effected in the\nconvention, still there would have been great danger of jealousy and\ndisgust in the other States, at the partiality which had been shown\nto the institutions of one. The enemies of the plan would have been\nfurnished with a fine pretext for raising a host of local prejudices\nagainst it, which perhaps might have hazarded, in no inconsiderable\ndegree, its final establishment.\n\nTo avoid the embarrassments of a definition of the cases which the\ntrial by jury ought to embrace, it is sometimes suggested by men of\nenthusiastic tempers, that a provision might have been inserted\nfor establishing it in all cases whatsoever. For this I believe,\nno precedent is to be found in any member of the Union; and the\nconsiderations which have been stated in discussing the proposition of\nthe minority of Pennsylvania, must satisfy every sober mind that the\nestablishment of the trial by jury in all cases would have been an\nunpardonable error in the plan.\n\nIn short, the more it is considered the more arduous will appear the\ntask of fashioning a provision in such a form as not to express too\nlittle to answer the purpose, or too much to be advisable; or which\nmight not have opened other sources of opposition to the great and\nessential object of introducing a firm national government.\n\nI cannot but persuade myself, on the other hand, that the different\nlights in which the subject has been placed in the course of these\nobservations, will go far towards removing in candid minds the\napprehensions they may have entertained on the point. They have tended\nto show that the security of liberty is materially concerned only in the\ntrial by jury in criminal cases, which is provided for in the most ample\nmanner in the plan of the convention; that even in far the greatest\nproportion of civil cases, and those in which the great body of the\ncommunity is interested, that mode of trial will remain in its full\nforce, as established in the State constitutions, untouched and\nunaffected by the plan of the convention; that it is in no\ncase abolished(3) by that plan; and that there are great if not\ninsurmountable difficulties in the way of making any precise and proper\nprovision for it in a Constitution for the United States.\n\nThe best judges of the matter will be the least anxious for a\nconstitutional establishment of the trial by jury in civil cases, and\nwill be the most ready to admit that the changes which are continually\nhappening in the affairs of society may render a different mode of\ndetermining questions of property preferable in many cases in which\nthat mode of trial now prevails. For my part, I acknowledge myself to be\nconvinced that even in this State it might be advantageously extended\nto some cases to which it does not at present apply, and might as\nadvantageously be abridged in others. It is conceded by all reasonable\nmen that it ought not to obtain in all cases. The examples of\ninnovations which contract its ancient limits, as well in these States\nas in Great Britain, afford a strong presumption that its former extent\nhas been found inconvenient, and give room to suppose that future\nexperience may discover the propriety and utility of other exceptions.\nI suspect it to be impossible in the nature of the thing to fix the\nsalutary point at which the operation of the institution ought to stop,\nand this is with me a strong argument for leaving the matter to the\ndiscretion of the legislature.\n\nThis is now clearly understood to be the case in Great Britain, and\nit is equally so in the State of Connecticut; and yet it may be safely\naffirmed that more numerous encroachments have been made upon the trial\nby jury in this State since the Revolution, though provided for by a\npositive article of our constitution, than has happened in the same\ntime either in Connecticut or Great Britain. It may be added that these\nencroachments have generally originated with the men who endeavor to\npersuade the people they are the warmest defenders of popular liberty,\nbut who have rarely suffered constitutional obstacles to arrest them in\na favorite career. The truth is that the general GENIUS of a government\nis all that can be substantially relied upon for permanent effects.\nParticular provisions, though not altogether useless, have far less\nvirtue and efficacy than are commonly ascribed to them; and the want of\nthem will never be, with men of sound discernment, a decisive objection\nto any plan which exhibits the leading characters of a good government.\n\nIt certainly sounds not a little harsh and extraordinary to affirm\nthat there is no security for liberty in a Constitution which expressly\nestablishes the trial by jury in criminal cases, because it does not do\nit in civil also; while it is a notorious fact that Connecticut, which\nhas been always regarded as the most popular State in the Union, can\nboast of no constitutional provision for either.\n\nPUBLIUS\n\n1. It has been erroneously insinuated with regard to the court of\nchancery, that this court generally tries disputed facts by a jury. The\ntruth is, that references to a jury in that court rarely happen, and are\nin no case necessary but where the validity of a devise of land comes\ninto question.\n\n2. It is true that the principles by which that relief is governed are\nnow reduced to a regular system; but it is not the less true that\nthey are in the main applicable to SPECIAL circumstances, which form\nexceptions to general rules.\n\n3. Vide No. 81, in which the supposition of its being abolished by the\nappellate jurisdiction in matters of fact being vested in the Supreme\nCourt, is examined and refuted.\n\n\n\n\nFEDERALIST No. 84\n\nCertain General and Miscellaneous Objections to the Constitution\nConsidered and Answered.\n\nFrom McLEAN's Edition, New York. Wednesday, May 28, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nIN THE course of the foregoing review of the Constitution, I have taken\nnotice of, and endeavored to answer most of the objections which have\nappeared against it. There, however, remain a few which either did not\nfall naturally under any particular head or were forgotten in their\nproper places. These shall now be discussed; but as the subject has been\ndrawn into great length, I shall so far consult brevity as to comprise\nall my observations on these miscellaneous points in a single paper.\n\nThe most considerable of the remaining objections is that the plan of\nthe convention contains no bill of rights. Among other answers given\nto this, it has been upon different occasions remarked that the\nconstitutions of several of the States are in a similar predicament.\nI add that New York is of the number. And yet the opposers of the new\nsystem, in this State, who profess an unlimited admiration for its\nconstitution, are among the most intemperate partisans of a bill of\nrights. To justify their zeal in this matter, they allege two things:\none is that, though the constitution of New York has no bill of rights\nprefixed to it, yet it contains, in the body of it, various provisions\nin favor of particular privileges and rights, which, in substance amount\nto the same thing; the other is, that the Constitution adopts, in their\nfull extent, the common and statute law of Great Britain, by which many\nother rights, not expressed in it, are equally secured.\n\nTo the first I answer, that the Constitution proposed by the convention\ncontains, as well as the constitution of this State, a number of such\nprovisions.\n\nIndependent of those which relate to the structure of the government, we\nfind the following: Article 1, section 3, clause 7--\"Judgment in cases\nof impeachment shall not extend further than to removal from office, and\ndisqualification to hold and enjoy any office of honor, trust, or profit\nunder the United States; but the party convicted shall, nevertheless,\nbe liable and subject to indictment, trial, judgment, and punishment\naccording to law.\" Section 9, of the same article, clause 2--\"The\nprivilege of the writ of habeas corpus shall not be suspended, unless\nwhen in cases of rebellion or invasion the public safety may require\nit.\" Clause 3--\"No bill of attainder or ex-post-facto law shall be\npassed.\" Clause 7--\"No title of nobility shall be granted by the United\nStates; and no person holding any office of profit or trust under them,\nshall, without the consent of the Congress, accept of any present,\nemolument, office, or title of any kind whatever, from any king, prince,\nor foreign state.\" Article 3, section 2, clause 3--\"The trial of all\ncrimes, except in cases of impeachment, shall be by jury; and such\ntrial shall be held in the State where the said crimes shall have been\ncommitted; but when not committed within any State, the trial shall\nbe at such place or places as the Congress may by law have directed.\"\nSection 3, of the same article--\"Treason against the United States\nshall consist only in levying war against them, or in adhering to their\nenemies, giving them aid and comfort. No person shall be convicted of\ntreason, unless on the testimony of two witnesses to the same overt act,\nor on confession in open court.\" And clause 3, of the same section--\"The\nCongress shall have power to declare the punishment of treason; but\nno attainder of treason shall work corruption of blood, or forfeiture,\nexcept during the life of the person attainted.\"\n\nIt may well be a question, whether these are not, upon the whole, of\nequal importance with any which are to be found in the constitution\nof this State. The establishment of the writ of habeas corpus, the\nprohibition of ex post facto laws, and of TITLES OF NOBILITY, to which\nwe have no corresponding provision in our Constitution, are perhaps\ngreater securities to liberty and republicanism than any it contains.\nThe creation of crimes after the commission of the fact, or, in other\nwords, the subjecting of men to punishment for things which, when\nthey were done, were breaches of no law, and the practice of arbitrary\nimprisonments, have been, in all ages, the favorite and most formidable\ninstruments of tyranny. The observations of the judicious Blackstone,(1)\nin reference to the latter, are well worthy of recital: \"To bereave a\nman of life, (says he) or by violence to confiscate his estate,\nwithout accusation or trial, would be so gross and notorious an act of\ndespotism, as must at once convey the alarm of tyranny throughout the\nwhole nation; but confinement of the person, by secretly hurrying him to\njail, where his sufferings are unknown or forgotten, is a less public,\na less striking, and therefore a more dangerous engine of arbitrary\ngovernment.\" And as a remedy for this fatal evil he is everywhere\npeculiarly emphatical in his encomiums on the habeas corpus act, which\nin one place he calls \"the BULWARK of the British Constitution.\"(2)\n\nNothing need be said to illustrate the importance of the prohibition of\ntitles of nobility. This may truly be denominated the corner-stone of\nrepublican government; for so long as they are excluded, there can never\nbe serious danger that the government will be any other than that of the\npeople.\n\nTo the second that is, to the pretended establishment of the common and\nstate law by the Constitution, I answer, that they are expressly made\nsubject \"to such alterations and provisions as the legislature shall\nfrom time to time make concerning the same.\" They are therefore at any\nmoment liable to repeal by the ordinary legislative power, and of course\nhave no constitutional sanction. The only use of the declaration was\nto recognize the ancient law and to remove doubts which might have been\noccasioned by the Revolution. This consequently can be considered as no\npart of a declaration of rights, which under our constitutions must be\nintended as limitations of the power of the government itself.\n\nIt has been several times truly remarked that bills of rights are,\nin their origin, stipulations between kings and their subjects,\nabridgements of prerogative in favor of privilege, reservations of\nrights not surrendered to the prince. Such was MAGNA CHARTA, obtained\nby the barons, sword in hand, from King John. Such were the subsequent\nconfirmations of that charter by succeeding princes. Such was the\nPetition of Right assented to by Charles I., in the beginning of his\nreign. Such, also, was the Declaration of Right presented by the Lords\nand Commons to the Prince of Orange in 1688, and afterwards thrown\ninto the form of an act of parliament called the Bill of Rights. It is\nevident, therefore, that, according to their primitive signification,\nthey have no application to constitutions professedly founded upon the\npower of the people, and executed by their immediate representatives and\nservants. Here, in strictness, the people surrender nothing; and as they\nretain every thing they have no need of particular reservations. \"WE,\nTHE PEOPLE of the United States, to secure the blessings of liberty to\nourselves and our posterity, do ordain and establish this Constitution\nfor the United States of America.\" Here is a better recognition of\npopular rights, than volumes of those aphorisms which make the principal\nfigure in several of our State bills of rights, and which would\nsound much better in a treatise of ethics than in a constitution of\ngovernment.\n\nBut a minute detail of particular rights is certainly far less\napplicable to a Constitution like that under consideration, which is\nmerely intended to regulate the general political interests of the\nnation, than to a constitution which has the regulation of every species\nof personal and private concerns. If, therefore, the loud clamors\nagainst the plan of the convention, on this score, are well founded, no\nepithets of reprobation will be too strong for the constitution of\nthis State. But the truth is, that both of them contain all which, in\nrelation to their objects, is reasonably to be desired.\n\nI go further, and affirm that bills of rights, in the sense and to the\nextent in which they are contended for, are not only unnecessary in the\nproposed Constitution, but would even be dangerous. They would contain\nvarious exceptions to powers not granted; and, on this very account,\nwould afford a colorable pretext to claim more than were granted. For\nwhy declare that things shall not be done which there is no power to do?\nWhy, for instance, should it be said that the liberty of the press shall\nnot be restrained, when no power is given by which restrictions may\nbe imposed? I will not contend that such a provision would confer\na regulating power; but it is evident that it would furnish, to men\ndisposed to usurp, a plausible pretense for claiming that power. They\nmight urge with a semblance of reason, that the Constitution ought not\nto be charged with the absurdity of providing against the abuse of\nan authority which was not given, and that the provision against\nrestraining the liberty of the press afforded a clear implication, that\na power to prescribe proper regulations concerning it was intended to be\nvested in the national government. This may serve as a specimen of the\nnumerous handles which would be given to the doctrine of constructive\npowers, by the indulgence of an injudicious zeal for bills of rights.\n\nOn the subject of the liberty of the press, as much as has been said,\nI cannot forbear adding a remark or two: in the first place, I observe,\nthat there is not a syllable concerning it in the constitution of this\nState; in the next, I contend, that whatever has been said about it\nin that of any other State, amounts to nothing. What signifies a\ndeclaration, that \"the liberty of the press shall be inviolably\npreserved\"? What is the liberty of the press? Who can give it any\ndefinition which would not leave the utmost latitude for evasion? I\nhold it to be impracticable; and from this I infer, that its security,\nwhatever fine declarations may be inserted in any constitution\nrespecting it, must altogether depend on public opinion, and on the\ngeneral spirit of the people and of the government.(3) And here, after\nall, as is intimated upon another occasion, must we seek for the only\nsolid basis of all our rights.\n\nThere remains but one other view of this matter to conclude the point.\nThe truth is, after all the declamations we have heard, that the\nConstitution is itself, in every rational sense, and to every useful\npurpose, A BILL OF RIGHTS. The several bills of rights in Great Britain\nform its Constitution, and conversely the constitution of each State is\nits bill of rights. And the proposed Constitution, if adopted, will be\nthe bill of rights of the Union. Is it one object of a bill of rights\nto declare and specify the political privileges of the citizens in the\nstructure and administration of the government? This is done in the most\nample and precise manner in the plan of the convention; comprehending\nvarious precautions for the public security, which are not to be found\nin any of the State constitutions. Is another object of a bill of rights\nto define certain immunities and modes of proceeding, which are relative\nto personal and private concerns? This we have seen has also been\nattended to, in a variety of cases, in the same plan. Adverting\ntherefore to the substantial meaning of a bill of rights, it is absurd\nto allege that it is not to be found in the work of the convention. It\nmay be said that it does not go far enough, though it will not be easy\nto make this appear; but it can with no propriety be contended that\nthere is no such thing. It certainly must be immaterial what mode is\nobserved as to the order of declaring the rights of the citizens, if\nthey are to be found in any part of the instrument which establishes the\ngovernment. And hence it must be apparent, that much of what has been\nsaid on this subject rests merely on verbal and nominal distinctions,\nentirely foreign from the substance of the thing.\n\nAnother objection which has been made, and which, from the frequency of\nits repetition, it is to be presumed is relied on, is of this nature:\n\"It is improper (say the objectors) to confer such large powers, as\nare proposed, upon the national government, because the seat of that\ngovernment must of necessity be too remote from many of the States\nto admit of a proper knowledge on the part of the constituent, of the\nconduct of the representative body.\" This argument, if it proves any\nthing, proves that there ought to be no general government whatever. For\nthe powers which, it seems to be agreed on all hands, ought to be vested\nin the Union, cannot be safely intrusted to a body which is not under\nevery requisite control. But there are satisfactory reasons to show that\nthe objection is in reality not well founded. There is in most of\nthe arguments which relate to distance a palpable illusion of the\nimagination. What are the sources of information by which the people in\nMontgomery County must regulate their judgment of the conduct of their\nrepresentatives in the State legislature? Of personal observation they\ncan have no benefit. This is confined to the citizens on the spot. They\nmust therefore depend on the information of intelligent men, in whom\nthey confide; and how must these men obtain their information? Evidently\nfrom the complexion of public measures, from the public prints, from\ncorrespondences with their representatives, and with other persons who\nreside at the place of their deliberations. This does not apply to\nMontgomery County only, but to all the counties at any considerable\ndistance from the seat of government.\n\nIt is equally evident that the same sources of information would be open\nto the people in relation to the conduct of their representatives in the\ngeneral government, and the impediments to a prompt communication which\ndistance may be supposed to create, will be overbalanced by the effects\nof the vigilance of the State governments. The executive and legislative\nbodies of each State will be so many sentinels over the persons employed\nin every department of the national administration; and as it will be\nin their power to adopt and pursue a regular and effectual system of\nintelligence, they can never be at a loss to know the behavior of those\nwho represent their constituents in the national councils, and can\nreadily communicate the same knowledge to the people. Their disposition\nto apprise the community of whatever may prejudice its interests from\nanother quarter, may be relied upon, if it were only from the rivalship\nof power. And we may conclude with the fullest assurance that the\npeople, through that channel, will be better informed of the conduct of\ntheir national representatives, than they can be by any means they now\npossess of that of their State representatives.\n\nIt ought also to be remembered that the citizens who inhabit the country\nat and near the seat of government will, in all questions that affect\nthe general liberty and prosperity, have the same interest with those\nwho are at a distance, and that they will stand ready to sound the alarm\nwhen necessary, and to point out the actors in any pernicious project.\nThe public papers will be expeditious messengers of intelligence to the\nmost remote inhabitants of the Union.\n\nAmong the many curious objections which have appeared against the\nproposed Constitution, the most extraordinary and the least colorable is\nderived from the want of some provision respecting the debts due to the\nUnited States. This has been represented as a tacit relinquishment of\nthose debts, and as a wicked contrivance to screen public defaulters.\nThe newspapers have teemed with the most inflammatory railings on this\nhead; yet there is nothing clearer than that the suggestion is entirely\nvoid of foundation, the offspring of extreme ignorance or extreme\ndishonesty. In addition to the remarks I have made upon the subject in\nanother place, I shall only observe that as it is a plain dictate of\ncommon-sense, so it is also an established doctrine of political law,\nthat \"States neither lose any of their rights, nor are discharged\nfrom any of their obligations, by a change in the form of their civil\ngovernment.\"(4)\n\nThe last objection of any consequence, which I at present recollect,\nturns upon the article of expense. If it were even true, that the\nadoption of the proposed government would occasion a considerable\nincrease of expense, it would be an objection that ought to have no\nweight against the plan.\n\nThe great bulk of the citizens of America are with reason convinced,\nthat Union is the basis of their political happiness. Men of sense of\nall parties now, with few exceptions, agree that it cannot be preserved\nunder the present system, nor without radical alterations; that new\nand extensive powers ought to be granted to the national head, and that\nthese require a different organization of the federal government--a\nsingle body being an unsafe depositary of such ample authorities. In\nconceding all this, the question of expense must be given up; for it\nis impossible, with any degree of safety, to narrow the foundation upon\nwhich the system is to stand. The two branches of the legislature are,\nin the first instance, to consist of only sixty-five persons, which is\nthe same number of which Congress, under the existing Confederation, may\nbe composed. It is true that this number is intended to be increased;\nbut this is to keep pace with the progress of the population and\nresources of the country. It is evident that a less number would, even\nin the first instance, have been unsafe, and that a continuance of the\npresent number would, in a more advanced stage of population, be a very\ninadequate representation of the people.\n\nWhence is the dreaded augmentation of expense to spring? One source\nindicated, is the multiplication of offices under the new government.\nLet us examine this a little.\n\nIt is evident that the principal departments of the administration under\nthe present government, are the same which will be required under the\nnew. There are now a Secretary of War, a Secretary of Foreign Affairs, a\nSecretary for Domestic Affairs, a Board of Treasury, consisting of\nthree persons, a Treasurer, assistants, clerks, etc. These officers are\nindispensable under any system, and will suffice under the new as well\nas the old. As to ambassadors and other ministers and agents in foreign\ncountries, the proposed Constitution can make no other difference than\nto render their characters, where they reside, more respectable,\nand their services more useful. As to persons to be employed in the\ncollection of the revenues, it is unquestionably true that these will\nform a very considerable addition to the number of federal officers;\nbut it will not follow that this will occasion an increase of public\nexpense. It will be in most cases nothing more than an exchange of State\nfor national officers. In the collection of all duties, for instance,\nthe persons employed will be wholly of the latter description. The\nStates individually will stand in no need of any for this purpose.\nWhat difference can it make in point of expense to pay officers of the\ncustoms appointed by the State or by the United States? There is no good\nreason to suppose that either the number or the salaries of the latter\nwill be greater than those of the former.\n\nWhere then are we to seek for those additional articles of expense which\nare to swell the account to the enormous size that has been represented\nto us? The chief item which occurs to me respects the support of the\njudges of the United States. I do not add the President, because there\nis now a president of Congress, whose expenses may not be far, if any\nthing, short of those which will be incurred on account of the President\nof the United States. The support of the judges will clearly be an extra\nexpense, but to what extent will depend on the particular plan which may\nbe adopted in regard to this matter. But upon no reasonable plan can it\namount to a sum which will be an object of material consequence.\n\nLet us now see what there is to counterbalance any extra expense that\nmay attend the establishment of the proposed government. The first thing\nwhich presents itself is that a great part of the business which now\nkeeps Congress sitting through the year will be transacted by the\nPresident. Even the management of foreign negotiations will naturally\ndevolve upon him, according to general principles concerted with the\nSenate, and subject to their final concurrence. Hence it is evident that\na portion of the year will suffice for the session of both the Senate\nand the House of Representatives; we may suppose about a fourth for the\nlatter and a third, or perhaps half, for the former. The extra business\nof treaties and appointments may give this extra occupation to the\nSenate. From this circumstance we may infer that, until the House of\nRepresentatives shall be increased greatly beyond its present number,\nthere will be a considerable saving of expense from the difference\nbetween the constant session of the present and the temporary session of\nthe future Congress.\n\nBut there is another circumstance of great importance in the view of\neconomy. The business of the United States has hitherto occupied\nthe State legislatures, as well as Congress. The latter has made\nrequisitions which the former have had to provide for. Hence it\nhas happened that the sessions of the State legislatures have been\nprotracted greatly beyond what was necessary for the execution of the\nmere local business of the States. More than half their time has been\nfrequently employed in matters which related to the United States. Now\nthe members who compose the legislatures of the several States amount to\ntwo thousand and upwards, which number has hitherto performed what under\nthe new system will be done in the first instance by sixty-five persons,\nand probably at no future period by above a fourth or fifth of that\nnumber. The Congress under the proposed government will do all the\nbusiness of the United States themselves, without the intervention of\nthe State legislatures, who thenceforth will have only to attend to\nthe affairs of their particular States, and will not have to sit in any\nproportion as long as they have heretofore done. This difference in the\ntime of the sessions of the State legislatures will be clear gain,\nand will alone form an article of saving, which may be regarded as an\nequivalent for any additional objects of expense that may be occasioned\nby the adoption of the new system.\n\nThe result from these observations is that the sources of additional\nexpense from the establishment of the proposed Constitution are much\nfewer than may have been imagined; that they are counterbalanced by\nconsiderable objects of saving; and that while it is questionable on\nwhich side the scale will preponderate, it is certain that a government\nless expensive would be incompetent to the purposes of the Union.\n\nPUBLIUS\n\n1. Vide Blackstone's Commentaries, Vol. 1, p. 136.\n\n2. Idem, Vol. 4, p. 438.\n\n3. To show that there is a power in the Constitution by which the\nliberty of the press may be affected, recourse has been had to the power\nof taxation. It is said that duties may be laid upon the publications so\nhigh as to amount to a prohibition. I know not by what logic it could be\nmaintained, that the declarations in the State constitutions, in favor\nof the freedom of the press, would be a constitutional impediment to\nthe imposition of duties upon publications by the State legislatures.\nIt cannot certainly be pretended that any degree of duties, however\nlow, would be an abridgment of the liberty of the press. We know that\nnewspapers are taxed in Great Britain, and yet it is notorious that the\npress nowhere enjoys greater liberty than in that country. And if duties\nof any kind may be laid without a violation of that liberty, it\nis evident that the extent must depend on legislative discretion,\nrespecting the liberty of the press, will give it no greater security\nthan it will have without them. The same invasions of it may be effected\nunder the State constitutions which contain those declarations through\nthe means of taxation, as under the proposed Constitution, which has\nnothing of the kind. It would be quite as significant to declare that\ngovernment ought to be free, that taxes ought not to be excessive, etc.,\nas that the liberty of the press ought not to be restrained.\n\n4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections\nXIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and\nIX.\n\n\n\n\nFEDERALIST No. 85\n\nConcluding Remarks\n\nFrom MCLEAN's Edition, New York. Wednesday, May 28, 1788\n\nHAMILTON\n\nTo the People of the State of New York:\n\nACCORDING to the formal division of the subject of these papers,\nannounced in my first number, there would appear still to remain for\ndiscussion two points: \"the analogy of the proposed government to your\nown State constitution,\" and \"the additional security which its adoption\nwill afford to republican government, to liberty, and to property.\" But\nthese heads have been so fully anticipated and exhausted in the progress\nof the work, that it would now scarcely be possible to do any thing\nmore than repeat, in a more dilated form, what has been heretofore said,\nwhich the advanced stage of the question, and the time already spent\nupon it, conspire to forbid.\n\nIt is remarkable, that the resemblance of the plan of the convention\nto the act which organizes the government of this State holds, not\nless with regard to many of the supposed defects, than to the real\nexcellences of the former. Among the pretended defects are the\nre-eligibility of the Executive, the want of a council, the omission\nof a formal bill of rights, the omission of a provision respecting the\nliberty of the press. These and several others which have been noted\nin the course of our inquiries are as much chargeable on the existing\nconstitution of this State, as on the one proposed for the Union; and\na man must have slender pretensions to consistency, who can rail at the\nlatter for imperfections which he finds no difficulty in excusing in the\nformer. Nor indeed can there be a better proof of the insincerity\nand affectation of some of the zealous adversaries of the plan of the\nconvention among us, who profess to be the devoted admirers of the\ngovernment under which they live, than the fury with which they have\nattacked that plan, for matters in regard to which our own constitution\nis equally or perhaps more vulnerable.\n\nThe additional securities to republican government, to liberty and\nto property, to be derived from the adoption of the plan under\nconsideration, consist chiefly in the restraints which the preservation\nof the Union will impose on local factions and insurrections, and on\nthe ambition of powerful individuals in single States, who may acquire\ncredit and influence enough, from leaders and favorites, to become the\ndespots of the people; in the diminution of the opportunities to foreign\nintrigue, which the dissolution of the Confederacy would invite and\nfacilitate; in the prevention of extensive military establishments,\nwhich could not fail to grow out of wars between the States in a\ndisunited situation; in the express guaranty of a republican form of\ngovernment to each; in the absolute and universal exclusion of titles\nof nobility; and in the precautions against the repetition of those\npractices on the part of the State governments which have undermined the\nfoundations of property and credit, have planted mutual distrust in\nthe breasts of all classes of citizens, and have occasioned an almost\nuniversal prostration of morals.\n\nThus have I, fellow-citizens, executed the task I had assigned to\nmyself; with what success, your conduct must determine. I trust at\nleast you will admit that I have not failed in the assurance I gave you\nrespecting the spirit with which my endeavors should be conducted. I\nhave addressed myself purely to your judgments, and have studiously\navoided those asperities which are too apt to disgrace political\ndisputants of all parties, and which have been not a little provoked\nby the language and conduct of the opponents of the Constitution. The\ncharge of a conspiracy against the liberties of the people, which has\nbeen indiscriminately brought against the advocates of the plan,\nhas something in it too wanton and too malignant, not to excite the\nindignation of every man who feels in his own bosom a refutation of the\ncalumny. The perpetual changes which have been rung upon the wealthy,\nthe well-born, and the great, have been such as to inspire the\ndisgust of all sensible men. And the unwarrantable concealments and\nmisrepresentations which have been in various ways practiced to keep\nthe truth from the public eye, have been of a nature to demand\nthe reprobation of all honest men. It is not impossible that these\ncircumstances may have occasionally betrayed me into intemperances of\nexpression which I did not intend; it is certain that I have frequently\nfelt a struggle between sensibility and moderation; and if the former\nhas in some instances prevailed, it must be my excuse that it has been\nneither often nor much.\n\nLet us now pause and ask ourselves whether, in the course of these\npapers, the proposed Constitution has not been satisfactorily vindicated\nfrom the aspersions thrown upon it; and whether it has not been shown to\nbe worthy of the public approbation, and necessary to the public safety\nand prosperity. Every man is bound to answer these questions to himself,\naccording to the best of his conscience and understanding, and to act\nagreeably to the genuine and sober dictates of his judgment. This is a\nduty from which nothing can give him a dispensation. 'T is one that he\nis called upon, nay, constrained by all the obligations that form\nthe bands of society, to discharge sincerely and honestly. No partial\nmotive, no particular interest, no pride of opinion, no temporary\npassion or prejudice, will justify to himself, to his country, or to his\nposterity, an improper election of the part he is to act. Let him beware\nof an obstinate adherence to party; let him reflect that the object upon\nwhich he is to decide is not a particular interest of the community, but\nthe very existence of the nation; and let him remember that a majority\nof America has already given its sanction to the plan which he is to\napprove or reject.\n\nI shall not dissemble that I feel an entire confidence in the arguments\nwhich recommend the proposed system to your adoption, and that I am\nunable to discern any real force in those by which it has been opposed.\nI am persuaded that it is the best which our political situation,\nhabits, and opinions will admit, and superior to any the revolution has\nproduced.\n\nConcessions on the part of the friends of the plan, that it has not a\nclaim to absolute perfection, have afforded matter of no small triumph\nto its enemies. \"Why,\" say they, \"should we adopt an imperfect\nthing? Why not amend it and make it perfect before it is irrevocably\nestablished?\" This may be plausible enough, but it is only plausible. In\nthe first place I remark, that the extent of these concessions has been\ngreatly exaggerated. They have been stated as amounting to an admission\nthat the plan is radically defective, and that without material\nalterations the rights and the interests of the community cannot be\nsafely confided to it. This, as far as I have understood the meaning of\nthose who make the concessions, is an entire perversion of their sense.\nNo advocate of the measure can be found, who will not declare as his\nsentiment, that the system, though it may not be perfect in every part,\nis, upon the whole, a good one; is the best that the present views and\ncircumstances of the country will permit; and is such an one as promises\nevery species of security which a reasonable people can desire.\n\nI answer in the next place, that I should esteem it the extreme of\nimprudence to prolong the precarious state of our national affairs, and\nto expose the Union to the jeopardy of successive experiments, in the\nchimerical pursuit of a perfect plan. I never expect to see a perfect\nwork from imperfect man. The result of the deliberations of all\ncollective bodies must necessarily be a compound, as well of the errors\nand prejudices, as of the good sense and wisdom, of the individuals\nof whom they are composed. The compacts which are to embrace thirteen\ndistinct States in a common bond of amity and union, must as necessarily\nbe a compromise of as many dissimilar interests and inclinations. How\ncan perfection spring from such materials?\n\nThe reasons assigned in an excellent little pamphlet lately published\nin this city,(1) are unanswerable to show the utter improbability\nof assembling a new convention, under circumstances in any degree so\nfavorable to a happy issue, as those in which the late convention met,\ndeliberated, and concluded. I will not repeat the arguments there used,\nas I presume the production itself has had an extensive circulation.\nIt is certainly well worthy the perusal of every friend to his country.\nThere is, however, one point of light in which the subject of amendments\nstill remains to be considered, and in which it has not yet been\nexhibited to public view. I cannot resolve to conclude without first\ntaking a survey of it in this aspect.\n\nIt appears to me susceptible of absolute demonstration, that it will\nbe far more easy to obtain subsequent than previous amendments to the\nConstitution. The moment an alteration is made in the present plan, it\nbecomes, to the purpose of adoption, a new one, and must undergo a new\ndecision of each State. To its complete establishment throughout the\nUnion, it will therefore require the concurrence of thirteen States. If,\non the contrary, the Constitution proposed should once be ratified\nby all the States as it stands, alterations in it may at any time be\neffected by nine States. Here, then, the chances are as thirteen to\nnine(2) in favor of subsequent amendment, rather than of the original\nadoption of an entire system.\n\nThis is not all. Every Constitution for the United States must\ninevitably consist of a great variety of particulars, in which thirteen\nindependent States are to be accommodated in their interests or opinions\nof interest. We may of course expect to see, in any body of men charged\nwith its original formation, very different combinations of the\nparts upon different points. Many of those who form a majority on\none question, may become the minority on a second, and an association\ndissimilar to either may constitute the majority on a third. Hence the\nnecessity of moulding and arranging all the particulars which are to\ncompose the whole, in such a manner as to satisfy all the parties to the\ncompact; and hence, also, an immense multiplication of difficulties and\ncasualties in obtaining the collective assent to a final act. The degree\nof that multiplication must evidently be in a ratio to the number of\nparticulars and the number of parties.\n\nBut every amendment to the Constitution, if once established, would be\na single proposition, and might be brought forward singly. There would\nthen be no necessity for management or compromise, in relation to any\nother point--no giving nor taking. The will of the requisite number\nwould at once bring the matter to a decisive issue. And consequently,\nwhenever nine, or rather ten States, were united in the desire of a\nparticular amendment, that amendment must infallibly take place. There\ncan, therefore, be no comparison between the facility of affecting an\namendment, and that of establishing in the first instance a complete\nConstitution.\n\nIn opposition to the probability of subsequent amendments, it has been\nurged that the persons delegated to the administration of the national\ngovernment will always be disinclined to yield up any portion of\nthe authority of which they were once possessed. For my own part I\nacknowledge a thorough conviction that any amendments which may, upon\nmature consideration, be thought useful, will be applicable to the\norganization of the government, not to the mass of its powers; and on\nthis account alone, I think there is no weight in the observation just\nstated. I also think there is little weight in it on another account.\nThe intrinsic difficulty of governing THIRTEEN STATES at any rate,\nindependent of calculations upon an ordinary degree of public spirit and\nintegrity, will, in my opinion constantly impose on the national\nrulers the necessity of a spirit of accommodation to the reasonable\nexpectations of their constituents. But there is yet a further\nconsideration, which proves beyond the possibility of a doubt, that the\nobservation is futile. It is this that the national rulers, whenever\nnine States concur, will have no option upon the subject. By the fifth\narticle of the plan, the Congress will be obliged \"on the application of\nthe legislatures of two thirds of the States (which at present amount\nto nine), to call a convention for proposing amendments, which shall be\nvalid, to all intents and purposes, as part of the Constitution, when\nratified by the legislatures of three fourths of the States, or by\nconventions in three fourths thereof.\" The words of this article are\nperemptory. The Congress \"shall call a convention.\" Nothing in this\nparticular is left to the discretion of that body. And of consequence,\nall the declamation about the disinclination to a change vanishes in\nair. Nor however difficult it may be supposed to unite two thirds or\nthree fourths of the State legislatures, in amendments which may affect\nlocal interests, can there be any room to apprehend any such difficulty\nin a union on points which are merely relative to the general liberty\nor security of the people. We may safely rely on the disposition of the\nState legislatures to erect barriers against the encroachments of the\nnational authority.\n\nIf the foregoing argument is a fallacy, certain it is that I am myself\ndeceived by it, for it is, in my conception, one of those rare instances\nin which a political truth can be brought to the test of a mathematical\ndemonstration. Those who see the matter in the same light with me,\nhowever zealous they may be for amendments, must agree in the propriety\nof a previous adoption, as the most direct road to their own object.\n\nThe zeal for attempts to amend, prior to the establishment of the\nConstitution, must abate in every man who is ready to accede to the\ntruth of the following observations of a writer equally solid and\ningenious: \"To balance a large state or society (says he), whether\nmonarchical or republican, on general laws, is a work of so great\ndifficulty, that no human genius, however comprehensive, is able, by the\nmere dint of reason and reflection, to effect it. The judgments of many\nmust unite in the work; EXPERIENCE must guide their labor; TIME must\nbring it to perfection, and the FEELING of inconveniences must correct\nthe mistakes which they inevitably fall into in their first trials\nand experiments.\"(3) These judicious reflections contain a lesson of\nmoderation to all the sincere lovers of the Union, and ought to put\nthem upon their guard against hazarding anarchy, civil war, a perpetual\nalienation of the States from each other, and perhaps the military\ndespotism of a victorious demagogue, in the pursuit of what they are not\nlikely to obtain, but from TIME and EXPERIENCE. It may be in me a defect\nof political fortitude, but I acknowledge that I cannot entertain an\nequal tranquillity with those who affect to treat the dangers of a\nlonger continuance in our present situation as imaginary. A NATION,\nwithout a NATIONAL GOVERNMENT, is, in my view, an awful spectacle.\nThe establishment of a Constitution, in time of profound peace, by the\nvoluntary consent of a whole people, is a PRODIGY, to the completion of\nwhich I look forward with trembling anxiety. I can reconcile it to\nno rules of prudence to let go the hold we now have, in so arduous an\nenterprise, upon seven out of the thirteen States, and after having\npassed over so considerable a part of the ground, to recommence the\ncourse. I dread the more the consequences of new attempts, because I\nknow that POWERFUL INDIVIDUALS, in this and in other States, are enemies\nto a general national government in every possible shape.\n\nPUBLIUS\n\n1. Entitled \"An Address to the People of the State of New York.\"\n\n2. It may rather be said TEN, for though two thirds may set on foot the\nmeasure, three fourths must ratify.\n\n3. Hume's Essays, Vol. I, p. 128: \"The Rise of Arts and Sciences.\""