{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nAFTER an unequivocal experience of the inefficacy of the\nsubsisting federal government, you are called upon to deliberate on\na new Constitution for the United States of America. The subject\nspeaks its own importance; comprehending in its consequences\nnothing less than the existence of the UNION, the safety and welfare\nof the parts of which it is composed, the fate of an empire in many\nrespects the most interesting in the world. It has been frequently\nremarked that it seems to have been reserved to the people of this\ncountry, by their conduct and example, to decide the important\nquestion, whether societies of men are really capable or not of\nestablishing good government from reflection and choice, or whether\nthey are forever destined to depend for their political\nconstitutions on accident and force. If there be any truth in the\nremark, 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\nwrong election of the part we shall act may, in this view, deserve\nto be considered 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\ngood men must feel for the event. Happy will it be if our choice\nshould be directed by a judicious estimate of our true interests,\nunperplexed and unbiased by considerations not connected with the\npublic good. But this is a thing more ardently to be wished than\nseriously to be expected. The plan offered to our deliberations\naffects too many particular interests, innovates upon too many local\ninstitutions, not to involve in its discussion a variety of objects\nforeign to its merits, and of views, passions and prejudices little\nfavorable to the discovery of truth.\n\nAmong the most formidable of the obstacles which the new\nConstitution will have to encounter may readily be distinguished the\nobvious interest of a certain class of men in every State to resist\nall changes which may hazard a diminution of the power, emolument,\nand consequence of the offices they hold under the State\nestablishments; and the perverted ambition of another class of men,\nwho will either hope to aggrandize themselves by the confusions of\ntheir country, or will flatter themselves with fairer prospects of\nelevation from the subdivision of the empire into several partial\nconfederacies than from its union under one 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\ntheir situations might subject them to suspicion) into interested or\nambitious views. Candor will oblige us to admit that even such men\nmay be actuated by upright intentions; and it cannot be doubted\nthat much of the opposition which has made its appearance, or may\nhereafter make its appearance, will spring from sources, blameless\nat least, if not respectable--the honest errors of minds led astray\nby preconceived jealousies and fears. So numerous indeed and so\npowerful are the causes which serve to give a false bias to the\njudgment, that we, upon many occasions, see wise and good men on the\nwrong as well as on the right side of questions of the first\nmagnitude to society. This circumstance, if duly attended to, would\nfurnish a lesson of moderation to those who are ever so much\npersuaded of their being in the right in any controversy. And a\nfurther reason for caution, in this respect, might be drawn from the\nreflection that we are not always sure that those who advocate the\ntruth are influenced by purer principles than their antagonists.\nAmbition, avarice, personal animosity, party opposition, and many\nother motives not more laudable than these, are apt to operate as\nwell upon those who support as those who oppose the right side of a\nquestion. Were there not even these inducements to moderation,\nnothing could be more ill-judged than that intolerant spirit which\nhas, at all times, characterized political parties. For in\npolitics, as in religion, it is equally absurd to aim at making\nproselytes by fire and sword. Heresies in either can rarely be\ncured by persecution.\n\nAnd yet, however just these sentiments will be allowed to be, we\nhave already sufficient indications that it will happen in this as\nin all former cases of great national discussion. A torrent of\nangry and malignant passions will be let loose. To judge from the\nconduct of the opposite parties, we shall be led to conclude that\nthey will mutually hope to evince the justness of their opinions,\nand to increase the number of their converts by the loudness of\ntheir declamations and the bitterness of their invectives. An\nenlightened zeal for the energy and efficiency of government will be\nstigmatized as the offspring of a temper fond of despotic power and\nhostile to the principles of liberty. An over-scrupulous jealousy\nof danger to the rights of the people, which is more commonly the\nfault of the head than of the heart, will be represented as mere\npretense and artifice, the stale bait for popularity at the expense\nof the public good. It will be forgotten, on the one hand, that\njealousy is the usual concomitant of love, and that the noble\nenthusiasm of liberty is apt to be infected with a spirit of narrow\nand illiberal distrust. On the other hand, it will be equally\nforgotten that the vigor of government is essential to the security\nof liberty; that, in the contemplation of a sound and well-informed\njudgment, their interest can never be separated; and that a\ndangerous ambition more often lurks behind the specious mask of zeal\nfor the rights of the people than under the forbidden appearance of\nzeal for the firmness and efficiency of government. History will\nteach us that the former has been found a much more certain road to\nthe introduction of despotism than the latter, and that of those men\nwho have overturned the liberties of republics, the greatest number\nhave begun their career by paying an obsequious court to the people;\ncommencing demagogues, and ending tyrants.\n\nIn the course of the preceding observations, I have had an eye,\nmy fellow-citizens, to putting you upon your guard against all\nattempts, from whatever quarter, to influence your decision in a\nmatter of the utmost moment to your welfare, by any impressions\nother than those which may result from the evidence of truth. You\nwill, no doubt, at the same time, have collected from the general\nscope of them, that they proceed from a source not unfriendly to the\nnew Constitution. Yes, my countrymen, I own to you that, after\nhaving given it an attentive consideration, I am clearly of opinion\nit is your interest to adopt it. I am convinced that this is the\nsafest course for your liberty, your dignity, and your happiness. I\naffect not reserves which I do not feel. I will not amuse you with\nan appearance of deliberation when I have decided. I frankly\nacknowledge to you my convictions, and I will freely lay before you\nthe reasons on which they are founded. The consciousness of good\nintentions disdains ambiguity. I shall not, however, multiply\nprofessions on this head. My motives must remain in the depository\nof my own breast. My arguments will be open to all, and may be\njudged of by all. They shall at least be offered in a spirit which\nwill not disgrace the cause of truth.\n\nI propose, in a series of papers, to discuss the following\ninteresting particulars:\n\nTHE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY\n\nTHE INSUFFICIENCY OF THE PRESENT CONFEDERATION\nTO PRESERVE THAT UNION  THE NECESSITY OF A GOVERNMENT AT LEAST\nEQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS\nOBJECT  THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE\nPRINCIPLES OF REPUBLICAN GOVERNMENT\nITS ANALOGY TO YOUR OWN STATE CONSTITUTION\nand lastly, THE ADDITIONAL SECURITY WHICH ITS\nADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF\nGOVERNMENT, TO 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\ntheir appearance, that may seem to have any claim to your attention.\n\nIt may perhaps be thought superfluous to offer arguments to\nprove the utility of the UNION, a point, no doubt, deeply engraved\non the hearts of the great body of the people in every State, and\none, which it may be imagined, has no adversaries. But the fact is,\nthat we already hear it whispered in the private circles of those\nwho oppose the new Constitution, that the thirteen States are of too\ngreat extent for any general system, and that we must of necessity\nresort to separate confederacies of distinct portions of the\nwhole. [1] This doctrine will, in all probability, be gradually\npropagated, till it has votaries enough to countenance an open\navowal of it. For nothing can be more evident, to those who are\nable to take an enlarged view of the subject, than the alternative\nof an adoption of the new Constitution or a dismemberment of the\nUnion. It will therefore be of use to begin by examining the\nadvantages of that Union, the certain evils, and the probable\ndangers, to which every State will be exposed from its dissolution.\nThis shall accordingly constitute the subject of my next address.\n\nPUBLIUS.\n\n1. The same idea, tracing the arguments to their consequences, is\nheld out in several of the late publications against the new\nConstitution.\n", "date": null, "title": "General Introduction", "paper_id": 1, "venue": "For the Independent Journal"}
{"author": "JAY", "text": "To the People of the State of New York:\n\nWHEN the people of America reflect that they are now called upon\nto decide a question, which, in its consequences, must prove one of\nthe most important that ever engaged their attention, the propriety\nof their taking a very comprehensive, as well as a very serious,\nview of it, will be evident.\n\nNothing is more certain than the indispensable necessity of\ngovernment, and it is equally undeniable, that whenever and however\nit is instituted, the people must cede to it some of their natural\nrights in order to vest it with requisite powers. It is well worthy\nof consideration therefore, whether it would conduce more to the\ninterest of the people of America that they should, to all general\npurposes, be one nation, under one federal government, or that they\nshould divide themselves into separate confederacies, and give to\nthe head of each the same kind of powers which they are advised to\nplace in one national government.\n\nIt has until lately been a received and uncontradicted opinion\nthat the prosperity of the people of America depended on their\ncontinuing firmly united, and the wishes, prayers, and efforts of\nour best and wisest citizens have been constantly directed to that\nobject. But politicians now appear, who insist that this opinion is\nerroneous, and that instead of looking for safety and happiness in\nunion, we ought to seek it in a division of the States into distinct\nconfederacies or sovereignties. However extraordinary this new\ndoctrine may appear, it nevertheless has its advocates; and certain\ncharacters who were much opposed to it formerly, are at present of\nthe number. Whatever may be the arguments or inducements which have\nwrought this change in the sentiments and declarations of these\ngentlemen, it certainly would not be wise in the people at large to\nadopt these new political tenets without being fully convinced that\nthey are founded in truth and sound policy.\n\nIt has often given me pleasure to observe that independent\nAmerica was not composed of detached and distant territories, but\nthat one connected, fertile, widespreading country was the portion\nof our western sons of liberty. Providence has in a particular\nmanner blessed it with a variety of soils and productions, and\nwatered it with innumerable streams, for the delight and\naccommodation of its inhabitants. A succession of navigable waters\nforms a kind of chain round its borders, as if to bind it together;\nwhile the most noble rivers in the world, running at convenient\ndistances, present them with highways for the easy communication of\nfriendly aids, and the mutual transportation and exchange of their\nvarious commodities.\n\nWith equal pleasure I have as often taken notice that Providence\nhas been pleased to give this one connected country to one united\npeople--a people descended from the same ancestors, speaking the same\nlanguage, professing the same religion, attached to the same\nprinciples of government, very similar in their manners and customs,\nand who, by their joint counsels, arms, and efforts, fighting side\nby side throughout a long and bloody war, have nobly established\ngeneral liberty and independence.\n\nThis country and this people seem to have been made for each\nother, and it appears as if it was the design of Providence, that an\ninheritance so proper and convenient for a band of brethren, united\nto each other by the strongest ties, should never be split into a\nnumber of unsocial, jealous, and alien sovereignties.\n\nSimilar sentiments have hitherto prevailed among all orders and\ndenominations of men among us. To all general purposes we have\nuniformly been one people each individual citizen everywhere\nenjoying the same national rights, privileges, and protection. As a\nnation we have made peace and war; as a nation we have vanquished\nour common enemies; as a nation we have formed alliances, and made\ntreaties, and entered into various compacts and conventions with\nforeign states.\n\nA strong sense of the value and blessings of union induced the\npeople, at a very early period, to institute a federal government to\npreserve and perpetuate it. They formed it almost as soon as they\nhad a political existence; nay, at a time when their habitations\nwere in flames, when many of their citizens were bleeding, and when\nthe progress of hostility and desolation left little room for those\ncalm and mature inquiries and reflections which must ever precede\nthe formation of a wise and wellbalanced government for a free\npeople. It is not to be wondered at, that a government instituted\nin times so inauspicious, should on experiment be found greatly\ndeficient and inadequate to the purpose it was intended to answer.\n\nThis intelligent people perceived and regretted these defects.\nStill continuing no less attached to union than enamored of\nliberty, they observed the danger which immediately threatened the\nformer and more remotely the latter; and being pursuaded that ample\nsecurity for both could only be found in a national government more\nwisely framed, they as with one voice, convened the late convention\nat Philadelphia, to take that important subject under consideration.\n\nThis convention composed of men who possessed the confidence of\nthe people, and many of whom had become highly distinguished by\ntheir patriotism, virtue and wisdom, in times which tried the minds\nand hearts of men, undertook the arduous task. In the mild season\nof peace, with minds unoccupied by other subjects, they passed many\nmonths in cool, uninterrupted, and daily consultation; and finally,\nwithout having been awed by power, or influenced by any passions\nexcept love for their country, they presented and recommended to the\npeople the plan produced by their joint and very unanimous councils.\n\nAdmit, for so is the fact, that this plan is only RECOMMENDED,\nnot imposed, yet let it be remembered that it is neither recommended\nto BLIND approbation, nor to BLIND reprobation; but to that sedate\nand candid consideration which the magnitude and importance of the\nsubject demand, and which it certainly ought to receive. But this\n(as was remarked in the foregoing number of this paper) is more to\nbe wished than expected, that it may be so considered and examined.\nExperience on a former occasion teaches us not to be too sanguine\nin such hopes. It is not yet forgotten that well-grounded\napprehensions of imminent danger induced the people of America to\nform the memorable Congress of 1774. That body recommended certain\nmeasures to their constituents, and the event proved their wisdom;\nyet it is fresh in our memories how soon the press began to teem\nwith pamphlets and weekly papers against those very measures. Not\nonly many of the officers of government, who obeyed the dictates of\npersonal 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\ngood, were indefatigable in their efforts to pursuade the people to\nreject the advice of that patriotic Congress. Many, indeed, were\ndeceived and deluded, but the great majority of the people reasoned\nand decided judiciously; and happy they are in reflecting that they\ndid 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\nvariety of useful information. That, in the course of the time they\npassed together in inquiring into and discussing the true interests\nof their country, they must have acquired very accurate knowledge on\nthat head. That they were individually interested in the public\nliberty and prosperity, and therefore that it was not less their\ninclination than their duty to recommend only such measures as,\nafter the most mature deliberation, they really thought prudent and\nadvisable.\n\nThese and similar considerations then induced the people to rely\ngreatly on the judgment and integrity of the Congress; and they\ntook their advice, notwithstanding the various arts and endeavors\nused to deter them from it. But if the people at large had reason\nto confide in the men of that Congress, few of whom had been fully\ntried or generally known, still greater reason have they now to\nrespect the judgment and advice of the convention, for it is well\nknown that some of the most distinguished members of that Congress,\nwho have been since tried and justly approved for patriotism and\nabilities, and who have grown old in acquiring political\ninformation, were also members of this convention, and carried into\nit their accumulated knowledge and experience.\n\nIt is worthy of remark that not only the first, but every\nsucceeding Congress, as well as the late convention, have invariably\njoined with the people in thinking that the prosperity of America\ndepended on its Union. To preserve and perpetuate it was the great\nobject of the people in forming that convention, and it is also the\ngreat object of the plan which the convention has advised them to\nadopt. With what propriety, therefore, or for what good purposes,\nare attempts at this particular period made by some men to\ndepreciate the importance of the Union? Or why is it suggested that\nthree or four confederacies would be better than one? I am\npersuaded in my own mind that the people have always thought right\non this subject, and that their universal and uniform attachment to\nthe cause of the Union rests on great and weighty reasons, which I\nshall endeavor to develop and explain in some ensuing papers. They\nwho promote the idea of substituting a number of distinct\nconfederacies in the room of the plan of the convention, seem\nclearly to foresee that the rejection of it would put the\ncontinuance of the Union in the utmost jeopardy. That certainly\nwould be the case, and I sincerely wish that it may be as clearly\nforeseen by every good citizen, that whenever the dissolution of the\nUnion arrives, America will have reason to exclaim, in the words of\nthe poet: \"FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.\"\n\nPUBLIUS.\n", "date": null, "title": "Concerning Dangers from Foreign Force and Influence", "paper_id": 2, "venue": "For the Independent Journal"}
{"author": "JAY", "text": "To the People of the State of New York:\n\nIT IS not a new observation that the people of any country (if,\nlike the Americans, intelligent and wellinformed) seldom adopt and\nsteadily persevere for many years in an erroneous opinion respecting\ntheir interests. That consideration naturally tends to create great\nrespect for the high opinion which the people of America have so\nlong and uniformly entertained of the importance of their continuing\nfirmly united under one federal government, vested with sufficient\npowers for all general and national purposes.\n\nThe more attentively I consider and investigate the reasons\nwhich appear to have given birth to this opinion, the more I become\nconvinced that they are cogent and conclusive.\n\nAmong the many objects to which a wise and free people find it\nnecessary to direct their attention, that of providing for their\nSAFETY seems to be the first. The SAFETY of the people doubtless\nhas relation to a great variety of circumstances and considerations,\nand consequently affords great latitude to those who wish to define\nit precisely and comprehensively.\n\nAt present I mean only to consider it as it respects security\nfor the preservation of peace and tranquillity, as well as against\ndangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE\nKIND arising from domestic causes. As the former of these comes\nfirst in order, it is proper it should be the first discussed. Let\nus therefore proceed to examine whether the people are not right in\ntheir opinion that a cordial Union, under an efficient national\ngovernment, affords them the best security that can be devised\nagainst HOSTILITIES from abroad.\n\nThe number of wars which have happened or will happen in the\nworld will always be found to be in proportion to the number and\nweight of the causes, whether REAL or PRETENDED, which PROVOKE or\nINVITE them. If this remark be just, it becomes useful to inquire\nwhether so many JUST causes of war are likely to be given by UNITED\nAMERICA as by DISUNITED America; for if it should turn out that\nUnited America will probably give the fewest, then it will follow\nthat in this respect the Union tends most to preserve the people in\na state of peace with other nations.\n\nThe JUST causes of war, for the most part, arise either from\nviolation of treaties or from direct violence. America has already\nformed treaties with no less than six foreign nations, and all of\nthem, except Prussia, are maritime, and therefore able to annoy and\ninjure us. She has also extensive commerce with Portugal, Spain,\nand Britain, and, with respect to the two latter, has, in addition,\nthe circumstance of neighborhood to attend to.\n\nIt is of high importance to the peace of America that she\nobserve the laws of nations towards all these powers, and to me it\nappears evident that this will be more perfectly and punctually done\nby one national government than it could be either by thirteen\nseparate States or by three or four distinct confederacies.\n\nBecause when once an efficient national government is\nestablished, the best men in the country will not only consent to\nserve, but also will generally be appointed to manage it; for,\nalthough town or country, or other contracted influence, may place\nmen in State assemblies, or senates, or courts of justice, or\nexecutive departments, yet more general and extensive reputation for\ntalents and other qualifications will be necessary to recommend men\nto offices under the national government,--especially as it will have\nthe widest field for choice, and never experience that want of\nproper persons which is not uncommon in some of the States. Hence,\nit will result that the administration, the political counsels, and\nthe judicial decisions of the national government will be more wise,\nsystematical, and judicious than those of individual States, and\nconsequently more satisfactory with respect to other nations, as\nwell 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\nin one sense and executed in the same manner,--whereas, adjudications\non the same points and questions, in thirteen States, or in three or\nfour confederacies, will not always accord or be consistent; and\nthat, as well from the variety of independent courts and judges\nappointed by different and independent governments, as from the\ndifferent local laws and interests which may affect and influence\nthem. The wisdom of the convention, in committing such questions to\nthe jurisdiction and judgment of courts appointed by and responsible\nonly to one national government, cannot be too much commended.\n\nBecause the prospect of present loss or advantage may often\ntempt the governing party in one or two States to swerve from good\nfaith and justice; but those temptations, not reaching the other\nStates, and consequently having little or no influence on the\nnational government, the temptation will be fruitless, and good\nfaith and justice be preserved. The case of the treaty of peace\nwith Britain adds great weight to this reasoning.\n\nBecause, even if the governing party in a State should be\ndisposed to resist such temptations, yet as such temptations may,\nand commonly do, result from circumstances peculiar to the State,\nand may affect a great number of the inhabitants, the governing\nparty may not always be able, if willing, to prevent the injustice\nmeditated, or to punish the aggressors. But the national\ngovernment, not being affected by those local circumstances, will\nneither be induced to commit the wrong themselves, nor want power or\ninclination to prevent or punish its commission by others.\n\nSo far, therefore, as either designed or accidental violations\nof treaties and the laws of nations afford JUST causes of war, they\nare less to be apprehended under one general government than under\nseveral lesser ones, and in that respect the former most favors the\nSAFETY of the people.\n\nAs to those just causes of war which proceed from direct and\nunlawful violence, it appears equally clear to me that one good\nnational government affords vastly more security against dangers of\nthat sort than can be derived from any other quarter.\n\nBecause such violences are more frequently caused by the\npassions and interests of a part than of the whole; of one or two\nStates than of the Union. Not a single Indian war has yet been\noccasioned by aggressions of the present federal government, feeble\nas it is; but there are several instances of Indian hostilities\nhaving been provoked by the improper conduct of individual States,\nwho, either unable or unwilling to restrain or punish offenses, have\ngiven occasion to the slaughter of many innocent inhabitants.\n\nThe neighborhood of Spanish and British territories, bordering\non some States and not on others, naturally confines the causes of\nquarrel more immediately to the borderers. The bordering States, if\nany, will be those who, under the impulse of sudden irritation, and\na quick sense of apparent interest or injury, will be most likely,\nby direct violence, to excite war with these nations; and nothing\ncan so effectually obviate that danger as a national government,\nwhose wisdom and prudence will not be diminished by the passions\nwhich actuate the parties immediately interested.\n\nBut not only fewer just causes of war will be given by the\nnational government, but it will also be more in their power to\naccommodate and settle them amicably. They will be more temperate\nand cool, and in that respect, as well as in others, will be more in\ncapacity to act advisedly than the offending State. The pride of\nstates, as well as of men, naturally disposes them to justify all\ntheir actions, and opposes their acknowledging, correcting, or\nrepairing their errors and offenses. The national government, in\nsuch cases, will not be affected by this pride, but will proceed\nwith moderation and candor to consider and decide on the means most\nproper to extricate them from the difficulties which threaten them.\n\nBesides, it is well known that acknowledgments, explanations,\nand compensations are often accepted as satisfactory from a strong\nunited nation, which would be rejected as unsatisfactory if offered\nby a State or 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\nDoge, or chief magistrate, accompanied by four of their\nsenators, to FRANCE, to ask his pardon and receive his terms. They\nwere obliged to submit to it for the sake of peace. Would he on any\noccasion either have demanded or have received the like humiliation\nfrom Spain, or Britain, or any other POWERFUL nation?\n\nPUBLIUS.\n", "date": null, "title": "The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)", "paper_id": 3, "venue": "For the Independent Journal"}
{"author": "JAY", "text": "To the People of the State of New York:\n\nMY LAST paper assigned several reasons why the safety of the\npeople would be best secured by union against the danger it may be\nexposed to by JUST causes of war given to other nations; and those\nreasons show that such causes would not only be more rarely given,\nbut would also be more easily accommodated, by a national government\nthan either by the State governments or the proposed little\nconfederacies.\n\nBut the safety of the people of America against dangers from\nFOREIGN force depends not only on their forbearing to give JUST\ncauses of war to other nations, but also on their placing and\ncontinuing themselves in such a situation as not to INVITE hostility\nor insult; for it need not be observed that there are PRETENDED as\nwell as just causes of war.\n\nIt is too true, however disgraceful it may be to human nature,\nthat nations in general will make war whenever they have a prospect\nof getting anything by it; nay, absolute monarchs will often make\nwar when their nations are to get nothing by it, but for the\npurposes and objects merely personal, such as thirst for military\nglory, revenge for personal affronts, ambition, or private compacts\nto aggrandize or support their particular families or partisans.\nThese and a variety of other motives, which affect only the mind of\nthe sovereign, often lead him to engage in wars not sanctified by\njustice or the voice and interests of his people. But, independent\nof these inducements to war, which are more prevalent in absolute\nmonarchies, but which well deserve our attention, there are others\nwhich affect nations as often as kings; and some of them will on\nexamination be found to grow out of our relative situation and\ncircumstances.\n\nWith France and with Britain we are rivals in the fisheries, and\ncan supply their markets cheaper than they can themselves,\nnotwithstanding any efforts to prevent it by bounties on their own\nor duties on foreign fish.\n\nWith them and with most other European nations we are rivals in\nnavigation and the carrying trade; and we shall deceive ourselves\nif we suppose that any of them will rejoice to see it flourish;\nfor, as our carrying trade cannot increase without in some degree\ndiminishing theirs, it is more their interest, and will be more\ntheir policy, to restrain than to promote it.\n\nIn the trade to China and India, we interfere with more than one\nnation, inasmuch as it enables us to partake in advantages which\nthey had in a manner monopolized, and as we thereby supply ourselves\nwith commodities which 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\naddress of our merchants and navigators, will give us a greater\nshare in the advantages which those territories afford, than\nconsists with the wishes or policy of their respective sovereigns.\n\nSpain thinks it convenient to shut the Mississippi against us on\nthe one side, and Britain excludes us from the Saint Lawrence on the\nother; nor will either of them permit the other waters which are\nbetween them and us to become the means of mutual intercourse and\ntraffic.\n\nFrom these and such like considerations, which might, if\nconsistent with prudence, be more amplified and detailed, it is easy\nto see that jealousies and uneasinesses may gradually slide into the\nminds and cabinets of other nations, and that we are not to expect\nthat they should regard our advancement in union, in power and\nconsequence by land and by sea, with an eye of indifference and\ncomposure.\n\nThe people of America are aware that inducements to war may\narise out of these circumstances, as well as from others not so\nobvious at present, and that whenever such inducements may find fit\ntime and opportunity for operation, pretenses to color and justify\nthem will not be wanting. Wisely, therefore, do they consider union\nand a good national government as necessary to put and keep them in\nSUCH A SITUATION as, instead of INVITING war, will tend to repress\nand discourage it. That situation consists in the best possible\nstate of defense, and necessarily depends on the government, the\narms, and the resources of the country.\n\nAs the safety of the whole is the interest of the whole, and\ncannot be provided for without government, either one or more or\nmany, let us inquire whether one good government is not, relative to\nthe object in question, more competent than any other given number\nwhatever.\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\nbe found. It can move on uniform principles of policy. It can\nharmonize, assimilate, and protect the several parts and members,\nand extend the benefit of its foresight and precautions to each. In\nthe formation of treaties, it will regard the interest of the whole,\nand the particular interests of the parts as connected with that of\nthe whole. It can apply the resources and power of the whole to the\ndefense of any particular part, and that more easily and\nexpeditiously than State governments or separate confederacies can\npossibly do, for want of concert and unity of system. It can place\nthe militia under one plan of discipline, and, by putting their\nofficers in a proper line of subordination to the Chief Magistrate,\nwill, as it were, consolidate them into one corps, and thereby\nrender 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\nobeyed the government of England, if the Scotch militia obeyed the\ngovernment of Scotland, and if the Welsh militia obeyed the\ngovernment of Wales? Suppose an invasion; would those three\ngovernments (if they agreed at all) be able, with all their\nrespective forces, to operate against the enemy so effectually as\nthe single government of Great Britain would?\n\nWe have heard much of the fleets of Britain, and the time may\ncome, if we are wise, when the fleets of America may engage\nattention. But if one national government, had not so regulated the\nnavigation of Britain as to make it a nursery for seamen--if one\nnational government had not called forth all the national means and\nmaterials for forming fleets, their prowess and their thunder would\nnever have been celebrated. Let England have its navigation and\nfleet--let Scotland have its navigation and fleet--let Wales have its\nnavigation and fleet--let Ireland have its navigation and fleet--let\nthose four of the constituent parts of the British empire be\nunder four independent governments, and it is easy to perceive how\nsoon they would each dwindle into comparative insignificance.\n\nApply these facts to our own case. Leave America divided into\nthirteen or, if you please, into three or four independent\ngovernments--what armies could they raise and pay--what fleets could\nthey ever hope to have? If one was attacked, would the others fly\nto its succor, and spend their blood and money in its defense?\nWould there be no danger of their being flattered into neutrality\nby its specious promises, or seduced by a too great fondness for\npeace to decline hazarding their tranquillity and present safety for\nthe sake of neighbors, of whom perhaps they have been jealous, and\nwhose importance they are content to see diminished? Although such\nconduct would not be wise, it would, nevertheless, be natural. The\nhistory of the states of Greece, and of other countries, abounds\nwith such instances, and it is not improbable that what has so often\nhappened would, under similar circumstances, happen again.\n\nBut admit that they might be willing to help the invaded State\nor confederacy. How, and when, and in what proportion shall aids of\nmen and money be afforded? Who shall command the allied armies, and\nfrom which of them shall he receive his orders? Who shall settle\nthe terms of peace, and in case of disputes what umpire shall decide\nbetween them and compel acquiescence? Various difficulties and\ninconveniences would be inseparable from such a situation; whereas\none government, watching over the general and common interests, and\ncombining and directing the powers and resources of the whole, would\nbe free from all these embarrassments, and conduce far more to the\nsafety of the people.\n\nBut whatever may be our situation, whether firmly united under\none national government, or split into a number of confederacies,\ncertain it is, that foreign nations will know and view it exactly as\nit is; and they will act toward us accordingly. If they see that\nour national government is efficient and well administered, our\ntrade prudently regulated, our militia properly organized and\ndisciplined, our resources and finances discreetly managed, our\ncredit re-established, our people free, contented, and united, they\nwill be much more disposed to cultivate our friendship than provoke\nour resentment. If, on the other hand, they find us either\ndestitute of an effectual government (each State doing right or\nwrong, as to its rulers may seem convenient), or split into three or\nfour independent and probably discordant republics or confederacies,\none inclining to Britain, another to France, and a third to Spain,\nand perhaps played off against each other by the three, what a poor,\npitiful figure will America make in their eyes! How liable would\nshe become not only to their contempt but to their outrage, and how\nsoon would dear-bought experience proclaim that when a people or\nfamily so divide, it never fails to be against themselves.\n\nPUBLIUS.\n", "date": null, "title": "The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)", "paper_id": 4, "venue": "For the Independent Journal"}
{"author": "JAY", "text": "To 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\nthen forming between England and Scotland, which merit our attention.\nI shall present the public with one or two extracts from it: \"An\nentire and perfect union will be the solid foundation of lasting\npeace: It will secure your religion, liberty, and property; remove\nthe animosities amongst yourselves, and the jealousies and\ndifferences betwixt our two kingdoms. It must increase your\nstrength, riches, and trade; and by this union the whole island,\nbeing joined in affection and free from all apprehensions of\ndifferent interest, will be ENABLED TO RESIST ALL ITS ENEMIES.\"\n\"We most earnestly recommend to you calmness and unanimity in this\ngreat 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\nenemies, who will doubtless, on this occasion, USE THEIR UTMOST\nENDEAVORS TO PREVENT OR DELAY THIS UNION.\"\n\nIt was remarked in the preceding paper, that weakness and\ndivisions at home would invite dangers from abroad; and that\nnothing would tend more to secure us from them than union, strength,\nand good government within ourselves. This subject is copious and\ncannot easily be exhausted.\n\nThe history of Great Britain is the one with which we are in\ngeneral the best acquainted, and it gives us many useful lessons.\nWe may profit by their experience without paying the price which it\ncost them. Although it seems obvious to common sense that the\npeople of such an island should be but one nation, yet we find that\nthey were for ages divided into three, and that those three were\nalmost constantly embroiled in quarrels and wars with one another.\nNotwithstanding their true interest with respect to the continental\nnations was really the same, yet by the arts and policy and\npractices of those nations, their mutual jealousies were perpetually\nkept inflamed, and for a long series of years they were far more\ninconvenient and troublesome than they were useful and assisting to\neach other.\n\nShould the people of America divide themselves into three or\nfour nations, would not the same thing happen? Would not similar\njealousies arise, and be in like manner cherished? Instead of their\nbeing \"joined in affection\" and free from all apprehension of\ndifferent \"interests,\" envy and jealousy would soon extinguish\nconfidence and affection, and the partial interests of each\nconfederacy, instead of the general interests of all America, would\nbe the only objects of their policy and pursuits. Hence, like most\nother BORDERING nations, they would always be either involved in\ndisputes and war, or live in the constant apprehension of them.\n\nThe most sanguine advocates for three or four confederacies\ncannot reasonably suppose that they would long remain exactly on an\nequal footing in point of strength, even if it was possible to form\nthem so at first; but, admitting that to be practicable, yet what\nhuman contrivance can secure the continuance of such equality?\nIndependent of those local circumstances which tend to beget and\nincrease power in one part and to impede its progress in another, we\nmust advert to the effects of that superior policy and good\nmanagement which would probably distinguish the government of one\nabove the rest, and by which their relative equality in strength and\nconsideration would be destroyed. For it cannot be presumed that\nthe same degree of sound policy, prudence, and foresight would\nuniformly be observed by each of these confederacies for a long\nsuccession of years.\n\nWhenever, and from whatever causes, it might happen, and happen\nit would, that any one of these nations or confederacies should rise\non the scale of political importance much above the degree of her\nneighbors, that moment would those neighbors behold her with envy\nand with fear. Both those passions would lead them to countenance,\nif not to promote, whatever might promise to diminish her\nimportance; and would also restrain them from measures calculated\nto advance or even to secure her prosperity. Much time would not be\nnecessary to enable her to discern these unfriendly dispositions.\nShe would soon begin, not only to lose confidence in her neighbors,\nbut also to feel a disposition equally unfavorable to them.\nDistrust naturally creates distrust, and by nothing is good-will\nand kind conduct more speedily changed than by invidious jealousies\nand 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\nproposed confederacies would, at a period not very distant, be\nunquestionably more formidable than any of the others. No sooner\nwould this become evident than the NORTHERN HIVE would excite the\nsame ideas and sensations in the more southern parts of America\nwhich it formerly did in the southern parts of Europe. Nor does it\nappear to be a rash conjecture that its young swarms might often be\ntempted to gather honey in the more blooming fields and milder air\nof their luxurious and more delicate 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\nwould be borderers; that they would neither love nor trust one\nanother, but on the contrary would be a prey to discord, jealousy,\nand mutual injuries; in short, that they would place us exactly in\nthe situations in which some nations doubtless wish to see us, viz.,\nFORMIDABLE ONLY TO EACH OTHER.\n\nFrom these considerations it appears that those gentlemen are\ngreatly mistaken who suppose that alliances offensive and defensive\nmight be formed between these confederacies, and would produce that\ncombination and union of wills of arms and of resources, which would\nbe necessary to put and keep them in a formidable state of defense\nagainst foreign enemies.\n\nWhen did the independent states, into which Britain and Spain\nwere formerly divided, combine in such alliance, or unite their\nforces against a foreign enemy? The proposed confederacies will be\nDISTINCT NATIONS. Each of them would have its commerce with\nforeigners to regulate by distinct treaties; and as their\nproductions and commodities are different and proper for different\nmarkets, so would those treaties be essentially different.\nDifferent commercial concerns must create different interests, and\nof course different degrees of political attachment to and\nconnection with different foreign nations. Hence it might and\nprobably would happen that the foreign nation with whom the SOUTHERN\nconfederacy might be at war would be the one with whom the NORTHERN\nconfederacy would be the most desirous of preserving peace and\nfriendship. An alliance so contrary to their immediate interest\nwould not therefore be easy to form, nor, if formed, would it be\nobserved and fulfilled with perfect good faith.\n\nNay, it is far more probable that in America, as in Europe,\nneighboring nations, acting under the impulse of opposite interests\nand unfriendly passions, would frequently be found taking different\nsides. Considering our distance from Europe, it would be more\nnatural for these confederacies to apprehend danger from one another\nthan from distant nations, and therefore that each of them should be\nmore desirous to guard against the others by the aid of foreign\nalliances, than to guard against foreign dangers by alliances\nbetween themselves. And here let us not forget how much more easy\nit is to receive foreign fleets into our ports, and foreign armies\ninto our country, than it is to persuade or compel them to depart.\nHow many conquests did the Romans and others make in the characters\nof allies, and what innovations did they under the same character\nintroduce into the governments of those whom they pretended to\nprotect.\n\nLet candid men judge, then, whether the division of America into\nany given number of independent sovereignties would tend to secure\nus against the hostilities and improper interference of foreign\nnations.\n\nPUBLIUS.\n", "date": null, "title": "The Same Subject Continued (Concerning Dangers From Foreign Force and Influence)", "paper_id": 5, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To 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\nof disunion, from the arms and arts of foreign nations. I shall now\nproceed to delineate dangers of a different and, perhaps, still more\nalarming kind--those which will in all probability flow from\ndissensions between the States themselves, and from domestic\nfactions and convulsions. These have been already in some instances\nslightly anticipated; but they deserve a more particular and more\nfull investigation.\n\nA man must be far gone in Utopian speculations who can seriously\ndoubt that, if these States should either be wholly disunited, or\nonly united in partial confederacies, the subdivisions into which\nthey might be thrown would have frequent and violent contests with\neach other. To presume a want of motives for such contests as an\nargument against their existence, would be to forget that men are\nambitious, vindictive, and rapacious. To look for a continuation of\nharmony between a number of independent, unconnected sovereignties\nin the same neighborhood, would be to disregard the uniform course\nof human events, and to set at defiance the accumulated experience\nof ages.\n\nThe causes of hostility among nations are innumerable. There\nare some which have a general and almost constant operation upon the\ncollective bodies of society. Of this description are the love of\npower or the desire of pre-eminence and dominion--the jealousy of\npower, or the desire of equality and safety. There are others which\nhave a more circumscribed though an equally operative influence\nwithin their spheres. Such are the rivalships and competitions of\ncommerce between commercial nations. And there are others, not less\nnumerous than either of the former, which take their origin entirely\nin private passions; in the attachments, enmities, interests,\nhopes, and fears of leading individuals in the communities of which\nthey are members. Men of this class, whether the favorites of a\nking or of a people, have in too many instances abused the\nconfidence they possessed; and assuming the pretext of some public\nmotive, have not scrupled to sacrifice the national tranquillity to\npersonal 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 the\nSAMNIANS. The same man, stimulated by private pique against the\nMEGARENSIANS, [2] another nation of Greece, or to avoid a\nprosecution with which he was threatened as an accomplice of a\nsupposed theft of the statuary Phidias, [3] or to get rid of the\naccusations prepared to be brought against him for dissipating the\nfunds of the state in the purchase of popularity, [4] or from a\ncombination of all these causes, was the primitive author of that\nfamous and fatal war, distinguished in the Grecian annals by the\nname of the PELOPONNESIAN war; which, after various vicissitudes,\nintermissions, and renewals, terminated in the ruin of the Athenian\ncommonwealth.\n\nThe ambitious cardinal, who was prime minister to Henry VIII.,\npermitting his vanity to aspire to the triple crown, [5]\nentertained hopes of succeeding in the acquisition of that splendid\nprize by the influence of the Emperor Charles V. To secure the\nfavor and interest of this enterprising and powerful monarch, he\nprecipitated England into a war with France, contrary to the\nplainest dictates of policy, and at the hazard of the safety and\nindependence, as well of the kingdom over which he presided by his\ncounsels, as of Europe in general. For if there ever was a\nsovereign who bid fair to realize the project of universal monarchy,\nit was the Emperor Charles V., of whose intrigues Wolsey was at once\nthe instrument and the dupe.\n\nThe influence which the bigotry of one female, [6] the\npetulance of another, [7] and the cabals of a third, [8] had in\nthe contemporary policy, ferments, and pacifications, of a\nconsiderable part of Europe, are topics that have been too often\ndescanted upon not to be generally known.\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\nwill not stand in need of such lights to form their opinion either\nof the reality or extent of that agency. Perhaps, however, a\nreference, tending to illustrate the general principle, may with\npropriety be made to a case which has lately happened among\nourselves. If Shays had not been a DESPERATE DEBTOR, it is much to\nbe doubted whether Massachusetts would have been plunged into a\ncivil war.\n\nBut notwithstanding the concurring testimony of experience, in\nthis particular, there are still to be found visionary or designing\nmen, who stand ready to advocate the paradox of perpetual peace\nbetween the States, though dismembered and alienated from each other.\nThe genius of republics (say they) is pacific; the spirit of\ncommerce has a tendency to soften the manners of men, and to\nextinguish those inflammable humors which have so often kindled into\nwars. Commercial republics, like ours, will never be disposed to\nwaste themselves in ruinous contentions with each other. They will\nbe governed by mutual interest, and will cultivate a spirit of\nmutual amity and concord.\n\nIs it not (we may ask these projectors in politics) the true\ninterest of all nations to cultivate the same benevolent and\nphilosophic spirit? If this be their true interest, have they in\nfact pursued it? Has it not, on the contrary, invariably been found\nthat momentary passions, and immediate interest, have a more active\nand imperious control over human conduct than general or remote\nconsiderations of policy, utility or justice? Have republics in\npractice been less addicted to war than monarchies? Are not the\nformer administered by MEN as well as the latter? Are there not\naversions, predilections, rivalships, and desires of unjust\nacquisitions, that affect nations as well as kings? Are not popular\nassemblies frequently subject to the impulses of rage, resentment,\njealousy, avarice, and of other irregular and violent propensities?\nIs it not well known that their determinations are often governed\nby a few individuals in whom they place confidence, and are, of\ncourse, 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\nbeen as many wars founded upon commercial motives since that has\nbecome the prevailing system of nations, as were before occasioned\nby the cupidity of territory or dominion? Has not the spirit of\ncommerce, in many instances, administered new incentives to the\nappetite, both for the one and for the other? Let experience, the\nleast fallible guide of human opinions, be appealed to for an answer\nto these inquiries.\n\nSparta, Athens, Rome, and Carthage were all republics; two of\nthem, Athens and Carthage, of the commercial kind. Yet were they as\noften engaged in wars, offensive and defensive, as the neighboring\nmonarchies of the same times. Sparta was little better than a\nwellregulated camp; and Rome was never sated of carnage and\nconquest.\n\nCarthage, though a commercial republic, was the aggressor in the\nvery war that ended in her destruction. Hannibal had carried her\narms into the heart of Italy and to the gates of Rome, before\nScipio, in turn, gave him an overthrow in the territories of\nCarthage, and made a conquest of the commonwealth.\n\nVenice, in later times, figured more than once in wars of\nambition, till, becoming an object to the other Italian states, Pope\nJulius II. found means to accomplish that formidable league, [9]\nwhich gave a deadly blow to the power and pride of this haughty\nrepublic.\n\nThe provinces of Holland, till they were overwhelmed in debts\nand taxes, took a leading and conspicuous part in the wars of Europe.\nThey had furious contests with England for the dominion of the\nsea, and were among the most persevering and most implacable of the\nopponents of Louis XIV.\n\nIn the government of Britain the representatives of the people\ncompose one branch of the national legislature. Commerce has been\nfor ages the predominant pursuit of that country. Few nations,\nnevertheless, have been more frequently engaged in war; and the\nwars in which that kingdom has been engaged have, in numerous\ninstances, proceeded from the people.\n\nThere have been, if I may so express it, almost as many popular\nas royal wars. The cries of the nation and the importunities of\ntheir representatives have, upon various occasions, dragged their\nmonarchs into war, or continued them in it, contrary to their\ninclinations, and sometimes contrary to the real interests of the\nState. In that memorable struggle for superiority between the rival\nhouses of AUSTRIA and BOURBON, which so long kept Europe in a flame,\nit is well known that the antipathies of the English against the\nFrench, seconding the ambition, or rather the avarice, of a favorite\nleader, [10] protracted the war beyond the limits marked out by\nsound policy, and for a considerable time in opposition to the views\nof the court.\n\nThe wars of these two last-mentioned nations have in a great\nmeasure grown out of commercial considerations,--the desire of\nsupplanting and the fear of being supplanted, either in particular\nbranches of traffic or in the general advantages of trade and\nnavigation.\n\nFrom this summary of what has taken place in other countries,\nwhose situations have borne the nearest resemblance to our own, what\nreason can we have to confide in those reveries which would seduce\nus into an expectation of peace and cordiality between the members\nof the present confederacy, in a state of separation? Have we not\nalready seen enough of the fallacy and extravagance of those idle\ntheories which have amused us with promises of an exemption from the\nimperfections, weaknesses and evils incident to society in every\nshape? Is it not time to awake from the deceitful dream of a golden\nage, and to adopt as a practical maxim for the direction of our\npolitical conduct that we, as well as the other inhabitants of the\nglobe, are yet remote from the happy empire of perfect wisdom and\nperfect virtue?\n\nLet the point of extreme depression to which our national\ndignity and credit have sunk, let the inconveniences felt everywhere\nfrom a lax and ill administration of government, let the revolt of a\npart of the State of North Carolina, the late menacing disturbances\nin Pennsylvania, and the actual insurrections and rebellions in\nMassachusetts, declare--!\n\nSo far is the general sense of mankind from corresponding with\nthe tenets of those who endeavor to lull asleep our apprehensions of\ndiscord and hostility between the States, in the event of disunion,\nthat it has from long observation of the progress of society become\na sort of axiom in politics, that vicinity or nearness of situation,\nconstitutes nations natural enemies. An intelligent writer\nexpresses himself on this subject to this effect: \"NEIGHBORING\nNATIONS (says he) are naturally enemies of each other unless their\ncommon weakness forces them to league in a CONFEDERATE REPUBLIC, and\ntheir constitution prevents the differences that neighborhood\noccasions, extinguishing that secret jealousy which disposes all\nstates to aggrandize themselves at the expense of their\nneighbors.\" [11] This passage, at the same time, points out the\nEVIL and suggests 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\ngold, with the connivance of Pericles, for the embellishment of the\nstatue of Minerva.\n\n5. P 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\nFrance, the King of Aragon, and most of the Italian princes and\nstates.\n\n10. The Duke of Marlborough.\n\n11. Vide \"Principes des Negociations\" par l'Abbe de Mably.\n", "date": null, "title": "Concerning Dangers from Dissensions Between the States", "paper_id": 6, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIT IS sometimes asked, with an air of seeming triumph, what\ninducements could the States have, if disunited, to make war upon\neach other? It would be a full answer to this question to\nsay--precisely the same inducements which have, at different times,\ndeluged in blood all the nations in the world. But, unfortunately\nfor us, the question admits of a more particular answer. There are\ncauses of differences within our immediate contemplation, of the\ntendency of which, even under the restraints of a federal\nconstitution, we have had sufficient experience to enable us to form\na judgment of what might be expected if those restraints were\nremoved.\n\nTerritorial disputes have at all times been found one of the\nmost fertile sources of hostility among nations. Perhaps the\ngreatest proportion of wars that have desolated the earth have\nsprung from this origin. This cause would exist among us in full\nforce. We have a vast tract of unsettled territory within the\nboundaries of the United States. There still are discordant and\nundecided claims between several of them, and the dissolution of the\nUnion would lay a foundation for similar claims between them all.\nIt is well known that they have heretofore had serious and animated\ndiscussion concerning the rights to the lands which were ungranted\nat the time of the Revolution, and which usually went under the name\nof crown lands. The States within the limits of whose colonial\ngovernments they were comprised have claimed them as their property,\nthe others have contended that the rights of the crown in this\narticle devolved upon the Union; especially as to all that part of\nthe Western territory which, either by actual possession, or through\nthe submission of the Indian proprietors, was subjected to the\njurisdiction of the king of Great Britain, till it was relinquished\nin the treaty of peace. This, it has been said, was at all events\nan acquisition to the Confederacy by compact with a foreign power.\nIt has been the prudent policy of Congress to appease this\ncontroversy, by prevailing upon the States to make cessions to the\nUnited States for the benefit of the whole. This has been so far\naccomplished as, under a continuation of the Union, to afford a\ndecided prospect of an amicable termination of the dispute. A\ndismemberment 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,\nif not by any anterior right, the common property of the Union. If\nthat were at an end, the States which made the cession, on a\nprinciple of federal compromise, would be apt when the motive of the\ngrant had ceased, to reclaim the lands as a reversion. The other\nStates would no doubt insist on a proportion, by right of\nrepresentation. Their argument would be, that a grant, once made,\ncould not be revoked; and that the justice of participating in\nterritory acquired or secured by the joint efforts of the\nConfederacy, remained undiminished. If, contrary to probability, it\nshould be admitted by all the States, that each had a right to a\nshare of this common stock, there would still be a difficulty to be\nsurmounted, as to a proper rule of apportionment. Different\nprinciples would be set up by different States for this purpose;\nand as they would affect the opposite interests of the parties,\nthey might not easily be susceptible of a pacific adjustment.\n\nIn the wide field of Western territory, therefore, we perceive\nan ample theatre for hostile pretensions, without any umpire or\ncommon judge to interpose between the contending parties. To reason\nfrom the past to the future, we shall have good ground to apprehend,\nthat the sword would sometimes be appealed to as the arbiter of\ntheir differences. The circumstances of the dispute between\nConnecticut and Pennsylvania, respecting the land at Wyoming,\nadmonish us not to be sanguine in expecting an easy accommodation of\nsuch differences. The articles of confederation obliged the parties\nto submit the matter to the decision of a federal court. The\nsubmission was made, and the court decided in favor of Pennsylvania.\nBut Connecticut gave strong indications of dissatisfaction with\nthat determination; nor did she appear to be entirely resigned to\nit, till, by negotiation and management, something like an\nequivalent was found for the loss she supposed herself to have\nsustained. Nothing here said is intended to convey the slightest\ncensure on the conduct of that State. She no doubt sincerely\nbelieved herself to have been injured by the decision; and States,\nlike individuals, acquiesce with great reluctance in determinations\nto their disadvantage.\n\nThose who had an opportunity of seeing the inside of the\ntransactions which attended the progress of the controversy between\nthis State and the district of Vermont, can vouch the opposition we\nexperienced, as well from States not interested as from those which\nwere interested in the claim; and can attest the danger to which\nthe peace of the Confederacy might have been exposed, had this State\nattempted to assert its rights by force. Two motives preponderated\nin that opposition: one, a jealousy entertained of our future\npower; and the other, the interest of certain individuals of\ninfluence in the neighboring States, who had obtained grants of\nlands under the actual government of that district. Even the States\nwhich brought forward claims, in contradiction to ours, seemed more\nsolicitous to dismember this State, than to establish their own\npretensions. These were New Hampshire, Massachusetts, and\nConnecticut. New Jersey and Rhode Island, upon all occasions,\ndiscovered a warm zeal for the independence of Vermont; and\nMaryland, till alarmed by the appearance of a connection between\nCanada and that State, entered deeply into the same views. These\nbeing small States, saw with an unfriendly eye the perspective of\nour growing greatness. In a review of these transactions we may\ntrace some of the causes which would be likely to embroil the States\nwith each other, if it should be their unpropitious destiny to\nbecome disunited.\n\nThe competitions of commerce would be another fruitful source of\ncontention. The States less favorably circumstanced would be\ndesirous of escaping from the disadvantages of local situation, and\nof sharing in the advantages of their more fortunate neighbors.\nEach State, or separate confederacy, would pursue a system of\ncommercial policy peculiar to itself. This would occasion\ndistinctions, preferences, and exclusions, which would beget\ndiscontent. The habits of intercourse, on the basis of equal\nprivileges, to which we have been accustomed since the earliest\nsettlement of the country, would give a keener edge to those causes\nof discontent than they would naturally have independent of this\ncircumstance. 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\nenterprise, which characterizes the commercial part of America, has\nleft no occasion of displaying itself unimproved. It is not at all\nprobable that this unbridled spirit would pay much respect to those\nregulations of trade by which particular States might endeavor to\nsecure exclusive benefits to their own citizens. The infractions of\nthese regulations, on one side, the efforts to prevent and repel\nthem, on the other, would naturally lead to outrages, and these to\nreprisals and wars.\n\nThe opportunities which some States would have of rendering\nothers tributary to them by commercial regulations would be\nimpatiently submitted to by the tributary States. The relative\nsituation of New York, Connecticut, and New Jersey would afford an\nexample of this kind. New York, from the necessities of revenue,\nmust lay duties on her importations. A great part of these duties\nmust be paid by the inhabitants of the two other States in the\ncapacity of consumers of what we import. New York would neither be\nwilling nor able to forego this advantage. Her citizens would not\nconsent that a duty paid by them should be remitted in favor of the\ncitizens of her neighbors; nor would it be practicable, if there\nwere not this impediment in the way, to distinguish the customers in\nour own markets. Would Connecticut and New Jersey long submit to be\ntaxed by New York for her exclusive benefit? Should we be long\npermitted to remain in the quiet and undisturbed enjoyment of a\nmetropolis, from the possession of which we derived an advantage so\nodious to our neighbors, and, in their opinion, so oppressive?\nShould we be able to preserve it against the incumbent weight of\nConnecticut on the one side, and the co-operating pressure of New\nJersey 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\ncollision between the separate States or confederacies. The\napportionment, in the first instance, and the progressive\nextinguishment afterward, would be alike productive of ill-humor and\nanimosity. How would it be possible to agree upon a rule of\napportionment satisfactory to all? There is scarcely any that can\nbe proposed which is entirely free from real objections. These, as\nusual, would be exaggerated by the adverse interest of the parties.\nThere are even dissimilar views among the States as to the general\nprinciple of discharging the public debt. Some of them, either less\nimpressed with the importance of national credit, or because their\ncitizens have little, if any, immediate interest in the question,\nfeel an indifference, if not a repugnance, to the payment of the\ndomestic debt at any rate. These would be inclined to magnify the\ndifficulties of a distribution. Others of them, a numerous body of\nwhose citizens are creditors to the public beyond proportion of the\nState in the total amount of the national debt, would be strenuous\nfor some equitable and effective provision. The procrastinations of\nthe former would excite the resentments of the latter. The\nsettlement of a rule would, in the meantime, be postponed by real\ndifferences of opinion and affected delays. The citizens of the\nStates interested would clamour; foreign powers would urge for the\nsatisfaction of their just demands, and the peace of the States\nwould be hazarded to the double contingency of external invasion and\ninternal contention.\n\nSuppose the difficulties of agreeing upon a rule surmounted, and\nthe apportionment made. Still there is great room to suppose that\nthe rule agreed upon would, upon experiment, be found to bear harder\nupon some States than upon others. Those which were sufferers by it\nwould naturally seek for a mitigation of the burden. The others\nwould as naturally be disinclined to a revision, which was likely to\nend in an increase of their own incumbrances. Their refusal would\nbe too plausible a pretext to the complaining States to withhold\ntheir contributions, not to be embraced with avidity; and the\nnon-compliance of these States with their engagements would be a\nground of bitter discussion and altercation. If even the rule\nadopted should in practice justify the equality of its principle,\nstill delinquencies in payments on the part of some of the States\nwould result from a diversity of other causes--the real deficiency of\nresources; the mismanagement of their finances; accidental\ndisorders in the management of the government; and, in addition to\nthe rest, the reluctance with which men commonly part with money for\npurposes that have outlived the exigencies which produced them, and\ninterfere with the supply of immediate wants. Delinquencies, from\nwhatever 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\ncontributions for any common object that does not yield an equal and\ncoincident benefit. For it is an observation, as true as it is\ntrite, that there is nothing men differ so readily about as the\npayment of money.\n\nLaws in violation of private contracts, as they amount to\naggressions on the rights of those States whose citizens are injured\nby them, may be considered as another probable source of hostility.\nWe are not authorized to expect that a more liberal or more\nequitable spirit would preside over the legislations of the\nindividual States hereafter, if unrestrained by any additional\nchecks, than we have heretofore seen in too many instances\ndisgracing their several codes. We have observed the disposition to\nretaliation excited in Connecticut in consequence of the enormities\nperpetrated by the Legislature of Rhode Island; and we reasonably\ninfer that, in similar cases, under other circumstances, a war, not\nof 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\nStates or confederacies and different foreign nations, and the\neffects of this situation upon the peace of the whole, have been\nsufficiently unfolded in some preceding papers. From the view they\nhave exhibited of this part of the subject, this conclusion is to be\ndrawn, that America, if not connected at all, or only by the feeble\ntie of a simple league, offensive and defensive, would, by the\noperation of such jarring alliances, be gradually entangled in all\nthe pernicious labyrinths of European politics and wars; and by the\ndestructive contentions of the parts into which she was divided,\nwould be likely to become a prey to the artifices and machinations\nof powers equally the enemies of them all. Divide et\nimpera [1] must be the motto of every nation that either hates or\nfears 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\nfour times a week--on Tuesday in the New York Packet and on\nThursday in the Daily Advertiser.\n", "date": null, "title": "The Same Subject Continued (Concerning Dangers from Dissensions Between the States)", "paper_id": 7, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nASSUMING it therefore as an established truth that the several\nStates, in case of disunion, or such combinations of them as might\nhappen to be formed out of the wreck of the general Confederacy,\nwould be subject to those vicissitudes of peace and war, of\nfriendship and enmity, with each other, which have fallen to the lot\nof all neighboring nations not united under one government, let us\nenter into a concise detail of some of the consequences that would\nattend such a situation.\n\nWar between the States, in the first period of their separate\nexistence, would be accompanied with much greater distresses than it\ncommonly is in those countries where regular military establishments\nhave long obtained. The disciplined armies always kept on foot on\nthe continent of Europe, though they bear a malignant aspect to\nliberty and economy, have, notwithstanding, been productive of the\nsignal advantage of rendering sudden conquests impracticable, and of\npreventing that rapid desolation which used to mark the progress of\nwar prior to their introduction. The art of fortification has\ncontributed to the same ends. The nations of Europe are encircled\nwith chains of fortified places, which mutually obstruct invasion.\nCampaigns are wasted in reducing two or three frontier garrisons,\nto gain admittance into an enemy's country. Similar impediments\noccur at every step, to exhaust the strength and delay the progress\nof an invader. Formerly, an invading army would penetrate into the\nheart of a neighboring country almost as soon as intelligence of its\napproach could be received; but now a comparatively small force of\ndisciplined troops, acting on the defensive, with the aid of posts,\nis able to impede, and finally to frustrate, the enterprises of one\nmuch more considerable. The history of war, in that quarter of the\nglobe, 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\neffort and little acquisition.\n\nIn this country the scene would be altogether reversed. The\njealousy of military establishments would postpone them as long as\npossible. The want of fortifications, leaving the frontiers of one\nstate open to another, would facilitate inroads. The populous\nStates would, with little difficulty, overrun their less populous\nneighbors. Conquests would be as easy to be made as difficult to be\nretained. War, therefore, would be desultory and predatory.\nPLUNDER and devastation ever march in the train of irregulars. The\ncalamities of individuals would make the principal figure in the\nevents which would characterize our military exploits.\n\nThis picture is not too highly wrought; though, I confess, it\nwould not long remain a just one. Safety from external danger is\nthe most powerful director of national conduct. Even the ardent\nlove of liberty will, after a time, give way to its dictates. The\nviolent destruction of life and property incident to war, the\ncontinual effort and alarm attendant on a state of continual danger,\nwill compel nations the most attached to liberty to resort for\nrepose and security to institutions which have a tendency to destroy\ntheir civil and political rights. To be more safe, they at length\nbecome 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\narmies, it is said, are not provided against in the new\nConstitution; and it is therefore inferred that they may exist\nunder it. [1] Their existence, however, from the very terms of the\nproposition, is, at most, problematical and uncertain. But standing\narmies, it may be replied, must inevitably result from a dissolution\nof the Confederacy. Frequent war and constant apprehension, which\nrequire a state of as constant preparation, will infallibly produce\nthem. The weaker States or confederacies would first have recourse\nto them, to put themselves upon an equality with their more potent\nneighbors. They would endeavor to supply the inferiority of\npopulation and resources by a more regular and effective system of\ndefense, by disciplined troops, and by fortifications. They would,\nat the same time, be necessitated to strengthen the executive arm of\ngovernment, in doing which their constitutions would acquire a\nprogressive direction toward monarchy. It is of the nature of war\nto increase the executive at the expense of the legislative\nauthority.\n\nThe expedients which have been mentioned would soon give the\nStates or confederacies that made use of them a superiority over\ntheir neighbors. Small states, or states of less natural strength,\nunder vigorous governments, and with the assistance of disciplined\narmies, have often triumphed over large states, or states of greater\nnatural strength, which have been destitute of these advantages.\nNeither the pride nor the safety of the more important States or\nconfederacies would permit them long to submit to this mortifying\nand adventitious superiority. They would quickly resort to means\nsimilar to those by which it had been effected, to reinstate\nthemselves in their lost pre-eminence. Thus, we should, in a little\ntime, see established in every part of this country the same engines\nof despotism which have been the scourge of the Old World. This, at\nleast, would be the natural course of things; and our reasonings\nwill 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\nspeculative defects in a Constitution, the whole power of which is\nlodged in the hands of a people, or their representatives and\ndelegates, but they are solid conclusions, drawn from the natural\nand necessary progress of human 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,\nequally satisfactory, may be given to this question. The\nindustrious habits of the people of the present day, absorbed in the\npursuits of gain, and devoted to the improvements of agriculture and\ncommerce, are incompatible with the condition of a nation of\nsoldiers, which was the true condition of the people of those\nrepublics. The means of revenue, which have been so greatly\nmultiplied by the increase of gold and silver and of the arts of\nindustry, and the science of finance, which is the offspring of\nmodern times, concurring with the habits of nations, have produced\nan 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\nestablishments in a country seldom exposed by its situation to\ninternal invasions, and in one which is often subject to them, and\nalways apprehensive of them. The rulers of the former can have a\ngood pretext, if they are even so inclined, to keep on foot armies\nso numerous as must of necessity be maintained in the latter. These\narmies being, in the first case, rarely, if at all, called into\nactivity for interior defense, the people are in no danger of being\nbroken to military subordination. The laws are not accustomed to\nrelaxations, in favor of military exigencies; the civil state\nremains in full vigor, neither corrupted, nor confounded with the\nprinciples or propensities of the other state. The smallness of the\narmy renders the natural strength of the community an over-match for\nit; and the citizens, not habituated to look up to the military\npower for protection, or to submit to its oppressions, neither love\nnor fear the soldiery; they view them with a spirit of jealous\nacquiescence in a necessary evil, and stand ready to resist a power\nwhich they suppose may be exerted to the prejudice of their rights.\nThe army under such circumstances may usefully aid the magistrate\nto suppress a small faction, or an occasional mob, or insurrection;\nbut it will be unable to enforce encroachments against the united\nefforts of the great body of the people.\n\nIn a country in the predicament last described, the contrary of\nall this happens. The perpetual menacings of danger oblige the\ngovernment to be always prepared to repel it; its armies must be\nnumerous enough for instant defense. The continual necessity for\ntheir services enhances the importance of the soldier, and\nproportionably degrades the condition of the citizen. The military\nstate becomes elevated above the civil. The inhabitants of\nterritories, often the theatre of war, are unavoidably subjected to\nfrequent infringements on their rights, which serve to weaken their\nsense of those rights; and by degrees the people are brought to\nconsider the soldiery not only as their protectors, but as their\nsuperiors. The transition from this disposition to that of\nconsidering them masters, is neither remote nor difficult; but it\nis very difficult to prevail upon a people under such impressions,\nto make a bold or effectual resistance to usurpations supported by\nthe military power.\n\nThe kingdom of Great Britain falls within the first description.\nAn insular situation, and a powerful marine, guarding it in a great\nmeasure against the possibility of foreign invasion, supersede the\nnecessity of a numerous army within the kingdom. A sufficient force\nto make head against a sudden descent, till the militia could have\ntime to rally and embody, is all that has been deemed requisite. No\nmotive of national policy has demanded, nor would public opinion\nhave tolerated, a larger number of troops upon its domestic\nestablishment. There has been, for a long time past, little room\nfor the operation of the other causes, which have been enumerated as\nthe consequences of internal war. This peculiar felicity of\nsituation has, in a great degree, contributed to preserve the\nliberty which that country to this day enjoys, in spite of the\nprevalent venality and corruption. If, on the contrary, Britain had\nbeen situated on the continent, and had been compelled, as she would\nhave been, by that situation, to make her military establishments at\nhome coextensive with those of the other great powers of Europe,\nshe, like them, would in all probability be, at this day, a victim\nto the absolute power of a single man. 'T is possible, though not\neasy, that the people of that island may be enslaved from other\ncauses; but it cannot be by the prowess of an army so\ninconsiderable as that which has been usually kept up within the\nkingdom.\n\nIf we are wise enough to preserve the Union we may for ages\nenjoy an advantage similar to that of an insulated situation.\nEurope is at a great distance from us. Her colonies in our\nvicinity will be likely to continue too much disproportioned in\nstrength to be able to give us any dangerous annoyance. Extensive\nmilitary establishments cannot, in this position, be necessary to\nour security. But if we should be disunited, and the integral parts\nshould either remain separated, or, which is most probable, should\nbe thrown together into two or three confederacies, we should be, in\na short course of time, in the predicament of the continental powers\nof Europe --our liberties would be a prey to the means of defending\nourselves against the ambition and jealousy of each other.\n\nThis is an idea not superficial or futile, but solid and weighty.\nIt deserves the most serious and mature consideration of every\nprudent and honest man of whatever party. If such men will make a\nfirm and solemn pause, and meditate dispassionately on the\nimportance of this interesting idea; if they will contemplate it in\nall its attitudes, and trace it to all its consequences, they will\nnot hesitate to part with trivial objections to a Constitution, the\nrejection of which would in all probability put a final period to\nthe Union. The airy phantoms that flit before the distempered\nimaginations of some of its adversaries would quickly give place to\nthe more substantial forms of dangers, real, certain, and formidable.\n\nPUBLIUS.\n\n1. This objection will be fully examined in its proper place, and\nit will be shown that the only natural precaution which could have\nbeen taken on this subject has been taken; and a much better one\nthan is to be found in any constitution that has been heretofore\nframed in America, most of which contain no guard at all on this\nsubject.\n", "date": "Tuesday, November 20, 1787", "title": "The Consequences of Hostilities Between the States", "paper_id": 8, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nA FIRM Union will be of the utmost moment to the peace and\nliberty of the States, as a barrier against domestic faction and\ninsurrection. It is impossible to read the history of the petty\nrepublics of Greece and Italy without feeling sensations of horror\nand disgust at the distractions with which they were continually\nagitated, and at the rapid succession of revolutions by which they\nwere kept in a state of perpetual vibration between the extremes of\ntyranny and anarchy. If they exhibit occasional calms, these only\nserve as short-lived contrast to the furious storms that are to\nsucceed. If now and then intervals of felicity open to view, we\nbehold them with a mixture of regret, arising from the reflection\nthat the pleasing scenes before us are soon to be overwhelmed by the\ntempestuous waves of sedition and party rage. If momentary rays of\nglory break forth from the gloom, while they dazzle us with a\ntransient and fleeting brilliancy, they at the same time admonish us\nto lament that the vices of government should pervert the direction\nand tarnish the lustre of those bright talents and exalted\nendowments for which the favored soils that produced them have been\nso justly celebrated.\n\nFrom the disorders that disfigure the annals of those republics\nthe advocates of despotism have drawn arguments, not only against\nthe forms of republican government, but against the very principles\nof civil liberty. They have decried all free government as\ninconsistent with the order of society, and have indulged themselves\nin malicious exultation over its friends and partisans. Happily for\nmankind, stupendous fabrics reared on the basis of liberty, which\nhave flourished for ages, have, in a few glorious instances, refuted\ntheir gloomy sophisms. And, I trust, America will be the broad and\nsolid foundation of other edifices, not less magnificent, which will\nbe equally permanent monuments of their errors.\n\nBut it is not to be denied that the portraits they have sketched\nof republican government were too just copies of the originals from\nwhich they were taken. If it had been found impracticable to have\ndevised models of a more perfect structure, the enlightened friends\nto liberty would have been obliged to abandon the cause of that\nspecies of government as indefensible. The science of politics,\nhowever, like most other sciences, has received great improvement.\nThe efficacy of various principles is now well understood, which\nwere either not known at all, or imperfectly known to the ancients.\nThe regular distribution of power into distinct departments; the\nintroduction of legislative balances and checks; the institution of\ncourts composed of judges holding their offices during good\nbehavior; the representation of the people in the legislature by\ndeputies of their own election: these are wholly new discoveries,\nor have made their principal progress towards perfection in modern\ntimes. They are means, and powerful means, by which the excellences\nof republican government may be retained and its imperfections\nlessened or avoided. To this catalogue of circumstances that tend\nto the amelioration of popular systems of civil government, I shall\nventure, however novel it may appear to some, to add one more, on a\nprinciple which has been made the foundation of an objection to the\nnew Constitution; I mean the ENLARGEMENT of the ORBIT within which\nsuch systems are to revolve, either in respect to the dimensions of\na single State or to the consolidation of several smaller States\ninto one great Confederacy. The latter is that which immediately\nconcerns the object under consideration. It will, however, be of\nuse to examine the principle in its application to a single State,\nwhich shall be attended to in another place.\n\nThe utility of a Confederacy, as well to suppress faction and to\nguard the internal tranquillity of States, as to increase their\nexternal force and security, is in reality not a new idea. It has\nbeen practiced upon in different countries and ages, and has\nreceived the sanction of the most approved writers on the subject of\npolitics. The opponents of the plan proposed have, with great\nassiduity, cited and circulated the observations of Montesquieu on\nthe necessity of a contracted territory for a republican government.\nBut they seem not to have been apprised of the sentiments of that\ngreat man expressed in another part of his work, nor to have\nadverted to the consequences of the principle to which they\nsubscribe with such ready acquiescence.\n\nWhen Montesquieu recommends a small extent for republics, the\nstandards he had in view were of dimensions far short of the limits\nof almost every one of these States. Neither Virginia,\nMassachusetts, Pennsylvania, New York, North Carolina, nor Georgia\ncan by any means be compared with the models from which he reasoned\nand to which the terms of his description apply. If we therefore\ntake his ideas on this point as the criterion of truth, we shall be\ndriven to the alternative either of taking refuge at once in the\narms of monarchy, or of splitting ourselves into an infinity of\nlittle, jealous, clashing, tumultuous commonwealths, the wretched\nnurseries of unceasing discord, and the miserable objects of\nuniversal pity or contempt. Some of the writers who have come\nforward on the other side of the question seem to have been aware of\nthe dilemma; and have even been bold enough to hint at the division\nof 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\nqualifications to extend their influence beyond the narrow circles\nof personal intrigue, but it could never promote the greatness or\nhappiness of the people of America.\n\nReferring the examination of the principle itself to another\nplace, as has been already mentioned, it will be sufficient to\nremark here that, in the sense of the author who has been most\nemphatically quoted upon the occasion, it would only dictate a\nreduction of the SIZE of the more considerable MEMBERS of the Union,\nbut would not militate against their being all comprehended in one\nconfederate government. And this is the true question, in the\ndiscussion of which we are at present interested.\n\nSo far are the suggestions of Montesquieu from standing in\nopposition to a general Union of the States, that he explicitly\ntreats of a CONFEDERATE REPUBLIC as the expedient for extending the\nsphere of popular government, and reconciling the advantages of\nmonarchy with those of republicanism.\n\n\"It is very probable,\" (says he [1]) \"that mankind would\nhave been obliged at length to live constantly under the government\nof a single person, had they not contrived a kind of constitution\nthat has all the internal advantages of a republican, together with\nthe external force of a monarchical government. I mean a\nCONFEDERATE REPUBLIC.\n\n\"This form of government is a convention by which several\nsmaller STATES agree to become members of a larger ONE, which they\nintend to form. It is a kind of assemblage of societies that\nconstitute a new one, capable of increasing, by means of new\nassociations, till they arrive to such a degree of power as to be\nable to provide for the security of the united body.\n\n\"A republic of this kind, able to withstand an external force,\nmay support itself without any internal corruptions. The form of\nthis society prevents all manner of inconveniences.\n\n\"If a single member should attempt to usurp the supreme\nauthority, he could not be supposed to have an equal authority and\ncredit in all the confederate states. Were he to have too great\ninfluence over one, this would alarm the rest. Were he to subdue a\npart, that which would still remain free might oppose him with\nforces independent of those which he had usurped and overpower him\nbefore he could be settled in his usurpation.\n\n\"Should a popular insurrection happen in one of the confederate\nstates the others are able to quell it. Should abuses creep into\none part, they are reformed by those that remain sound. The state\nmay be destroyed on one side, and not on the other; the confederacy\nmay be dissolved, and the confederates preserve their sovereignty.\n\n\"As this government is composed of small republics, it enjoys\nthe internal happiness of each; and with respect to its external\nsituation, it is possessed, by means of the association, of all the\nadvantages of large monarchies.\"\n\nI have thought it proper to quote at length these interesting\npassages, because they contain a luminous abridgment of the\nprincipal arguments in favor of the Union, and must effectually\nremove the false impressions which a misapplication of other parts\nof the work was calculated to make. They have, at the same time, an\nintimate connection with the more immediate design of this paper;\nwhich is, to illustrate the tendency of the Union to repress\ndomestic faction and insurrection.\n\nA distinction, more subtle than accurate, has been raised\nbetween a CONFEDERACY and a CONSOLIDATION of the States. The\nessential characteristic of the first is said to be, the restriction\nof its authority to the members in their collective capacities,\nwithout reaching to the individuals of whom they are composed. It\nis contended that the national council ought to have no concern with\nany object of internal administration. An exact equality of\nsuffrage between the members has also been insisted upon as a\nleading feature of a confederate government. These positions are,\nin the main, arbitrary; they are supported neither by principle nor\nprecedent. It has indeed happened, that governments of this kind\nhave generally operated in the manner which the distinction taken\nnotice of, supposes to be inherent in their nature; but there have\nbeen in most of them extensive exceptions to the practice, which\nserve to prove, as far as example will go, that there is no absolute\nrule on the subject. And it will be clearly shown in the course of\nthis investigation that as far as the principle contended for has\nprevailed, it has been the cause of incurable disorder and\nimbecility 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\nfederal authority are mere matters of discretion. So long as the\nseparate organization of the members be not abolished; so long as\nit exists, by a constitutional necessity, for local purposes;\nthough it should be in perfect subordination to the general\nauthority of the union, it would still be, in fact and in theory, an\nassociation of states, or a confederacy. The proposed Constitution,\nso far from implying an abolition of the State governments, makes\nthem constituent parts of the national sovereignty, by allowing them\na direct representation in the Senate, and leaves in their\npossession certain exclusive and very important portions of\nsovereign power. This fully corresponds, in every rational import\nof the terms, with the idea of a federal government.\n\nIn the Lycian confederacy, which consisted of twenty-three\nCITIES or republics, the largest were entitled to THREE votes in the\nCOMMON COUNCIL, those of the middle class to TWO, and the smallest\nto ONE. The COMMON COUNCIL had the appointment of all the judges\nand magistrates of the respective CITIES. This was certainly the\nmost, delicate species of interference in their internal\nadministration; for if there be any thing that seems exclusively\nappropriated to the local jurisdictions, it is the appointment of\ntheir own officers. Yet Montesquieu, speaking of this association,\nsays: \"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\nare the novel refinements of an erroneous theory.\n\nPUBLIUS.\n\n1. \"Spirit of Lawa,\" vol. i., book ix., chap. i.\n", "date": null, "title": "The Union as a Safeguard Against Domestic Faction and Insurrection", "paper_id": 9, "venue": "For the Independent Journal"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nAMONG the numerous advantages promised by a wellconstructed\nUnion, none deserves to be more accurately developed than its\ntendency to break and control the violence of faction. The friend\nof popular governments never finds himself so much alarmed for their\ncharacter and fate, as when he contemplates their propensity to this\ndangerous vice. He will not fail, therefore, to set a due value on\nany plan which, without violating the principles to which he is\nattached, provides a proper cure for it. The instability,\ninjustice, and confusion introduced into the public councils, have,\nin truth, been the mortal diseases under which popular governments\nhave everywhere perished; as they continue to be the favorite and\nfruitful topics from which the adversaries to liberty derive their\nmost specious declamations. The valuable improvements made by the\nAmerican constitutions on the popular models, both ancient and\nmodern, 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.\nComplaints are everywhere heard from our most considerate and\nvirtuous citizens, equally the friends of public and private faith,\nand of public and personal liberty, that our governments are too\nunstable, that the public good is disregarded in the conflicts of\nrival parties, and that measures are too often decided, not\naccording to the rules of justice and the rights of the minor party,\nbut by the superior force of an interested and overbearing majority.\nHowever anxiously we may wish that these complaints had no\nfoundation, the evidence, of known facts will not permit us to deny\nthat they are in some degree true. It will be found, indeed, on a\ncandid review of our situation, that some of the distresses under\nwhich we labor have been erroneously charged on the operation of our\ngovernments; 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\npublic engagements, and alarm for private rights, which are echoed\nfrom one end of the continent to the other. These must be chiefly,\nif not wholly, effects of the unsteadiness and injustice with which\na factious spirit has tainted our public administrations.\n\nBy a faction, I understand a number of citizens, whether\namounting to a majority or a minority of the whole, who are united\nand actuated by some common impulse of passion, or of interest,\nadversed to the rights of other citizens, or to the permanent and\naggregate interests of the community.\n\nThere are two methods of curing the mischiefs of faction: the\none, by removing its causes; the other, by controlling its effects.\n\nThere are again two methods of removing the causes of faction:\nthe one, by destroying the liberty which is essential to its\nexistence; the other, by giving to every citizen the same opinions,\nthe same passions, and the same interests.\n\nIt could never be more truly said than of the first remedy, that\nit was worse than the disease. Liberty is to faction what air is to\nfire, an aliment without which it instantly expires. But it could\nnot be less folly to abolish liberty, which is essential to\npolitical life, because it nourishes faction, than it would be to\nwish the annihilation of air, which is essential to animal life,\nbecause it imparts to fire its destructive agency.\n\nThe second expedient is as impracticable as the first would be\nunwise. As long as the reason of man continues fallible, and he is\nat liberty to exercise it, different opinions will be formed. As\nlong as the connection subsists between his reason and his\nself-love, his opinions and his passions will have a reciprocal\ninfluence on each other; and the former will be objects to which\nthe latter will attach themselves. The diversity in the faculties\nof men, from which the rights of property originate, is not less an\ninsuperable obstacle to a uniformity of interests. The protection\nof these faculties is the first object of government. From the\nprotection of different and unequal faculties of acquiring property,\nthe possession of different degrees and kinds of property\nimmediately results; and from the influence of these on the\nsentiments and views of the respective proprietors, ensues a\ndivision of the society into different interests and parties.\n\nThe latent causes of faction are thus sown in the nature of man;\nand we see them everywhere brought into different degrees of\nactivity, according to the different circumstances of civil society.\nA zeal for different opinions concerning religion, concerning\ngovernment, and many other points, as well of speculation as of\npractice; an attachment to different leaders ambitiously contending\nfor pre-eminence and power; or to persons of other descriptions\nwhose fortunes have been interesting to the human passions, have, in\nturn, divided mankind into parties, inflamed them with mutual\nanimosity, and rendered them much more disposed to vex and oppress\neach other than to co-operate for their common good. So strong is\nthis propensity of mankind to fall into mutual animosities, that\nwhere no substantial occasion presents itself, the most frivolous\nand fanciful distinctions have been sufficient to kindle their\nunfriendly 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\nare without 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\nparty and faction in the necessary and ordinary operations of the\ngovernment.\n\nNo man is allowed to be a judge in his own cause, because his\ninterest would certainly bias his judgment, and, not improbably,\ncorrupt his integrity. With equal, nay with greater reason, a body\nof men are unfit to be both judges and parties at the same time;\nyet what are many of the most important acts of legislation, but so\nmany judicial determinations, not indeed concerning the rights of\nsingle persons, but concerning the rights of large bodies of\ncitizens? And what are the different classes of legislators but\nadvocates and parties to the causes which they determine? Is a law\nproposed concerning private debts? It is a question to which the\ncreditors are parties on one side and the debtors on the other.\nJustice ought to hold the balance between them. Yet the parties\nare, and must be, themselves the judges; and the most numerous\nparty, or, in other words, the most powerful faction must be\nexpected to prevail. Shall domestic manufactures be encouraged, and\nin what degree, by restrictions on foreign manufactures? are\nquestions which would be differently decided by the landed and the\nmanufacturing classes, and probably by neither with a sole regard to\njustice and the public good. The apportionment of taxes on the\nvarious descriptions of property is an act which seems to require\nthe most exact impartiality; yet there is, perhaps, no legislative\nact in which greater opportunity and temptation are given to a\npredominant party to trample on the rules of justice. Every\nshilling 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\nadjust these clashing interests, and render them all subservient to\nthe public good. Enlightened statesmen will not always be at the\nhelm. Nor, in many cases, can such an adjustment be made at all\nwithout taking into view indirect and remote considerations, which\nwill rarely prevail over the immediate interest which one party may\nfind in disregarding the rights of another or the good of the whole.\n\nThe inference to which we are brought is, that the CAUSES of\nfaction cannot be removed, and that relief is only to be sought in\nthe means of controlling its EFFECTS.\n\nIf a faction consists of less than a majority, relief is\nsupplied by the republican principle, which enables the majority to\ndefeat its sinister views by regular vote. It may clog the\nadministration, it may convulse the society; but it will be unable\nto execute and mask its violence under the forms of the Constitution.\nWhen a majority is included in a faction, the form of popular\ngovernment, on the other hand, enables it to sacrifice to its ruling\npassion or interest both the public good and the rights of other\ncitizens. To secure the public good and private rights against the\ndanger of such a faction, and at the same time to preserve the\nspirit and the form of popular government, is then the great object\nto which our inquiries are directed. Let me add that it is the\ngreat 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\ntwo only. Either the existence of the same passion or interest in a\nmajority at the same time must be prevented, or the majority, having\nsuch coexistent passion or interest, must be rendered, by their\nnumber and local situation, unable to concert and carry into effect\nschemes of oppression. If the impulse and the opportunity be\nsuffered to coincide, we well know that neither moral nor religious\nmotives can be relied on as an adequate control. They are not found\nto be such on the injustice and violence of individuals, and lose\ntheir efficacy in proportion to the number combined together, that\nis, in proportion as their efficacy becomes needful.\n\nFrom this view of the subject it may be concluded that a pure\ndemocracy, by which I mean a society consisting of a small number of\ncitizens, who assemble and administer the government in person, can\nadmit of no cure for the mischiefs of faction. A common passion or\ninterest will, in almost every case, be felt by a majority of the\nwhole; a communication and concert result from the form of\ngovernment itself; and there is nothing to check the inducements to\nsacrifice the weaker party or an obnoxious individual. Hence it is\nthat such democracies have ever been spectacles of turbulence and\ncontention; have ever been found incompatible with personal\nsecurity or the rights of property; and have in general been as\nshort in their lives as they have been violent in their deaths.\nTheoretic politicians, who have patronized this species of\ngovernment, have erroneously supposed that by reducing mankind to a\nperfect equality in their political rights, they would, at the same\ntime, be perfectly equalized and assimilated in their possessions,\ntheir opinions, 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\nwhich it varies from pure democracy, and we shall comprehend both\nthe nature of the cure and the efficacy which it must derive from\nthe Union.\n\nThe two great points of difference between a democracy and a\nrepublic are: first, the delegation of the government, in the\nlatter, to a small number of citizens elected by the rest;\nsecondly, the greater number of citizens, and greater sphere of\ncountry, over which the latter may be extended.\n\nThe effect of the first difference is, on the one hand, to\nrefine and enlarge the public views, by passing them through the\nmedium of a chosen body of citizens, whose wisdom may best discern\nthe true interest of their country, and whose patriotism and love of\njustice will be least likely to sacrifice it to temporary or partial\nconsiderations. Under such a regulation, it may well happen that\nthe public voice, pronounced by the representatives of the people,\nwill be more consonant to the public good than if pronounced by the\npeople themselves, convened for the purpose. On the other hand, the\neffect may be inverted. Men of factious tempers, of local\nprejudices, or of sinister designs, may, by intrigue, by corruption,\nor by other means, first obtain the suffrages, and then betray the\ninterests, of the people. The question resulting is, whether small\nor extensive republics are more favorable to the election of proper\nguardians of the public weal; and it is clearly decided in favor of\nthe 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\nnumber, in order to guard against the cabals of a few; and that,\nhowever large it may be, they must be limited to a certain number,\nin order to guard against the confusion of a multitude. Hence, the\nnumber of representatives in the two cases not being in proportion\nto that of the two constituents, and being proportionally greater in\nthe small republic, it follows that, if the proportion of fit\ncharacters be not less in the large than in the small republic, the\nformer will present a greater option, and consequently a greater\nprobability of a fit choice.\n\nIn the next place, as each representative will be chosen by a\ngreater number of citizens in the large than in the small republic,\nit will be more difficult for unworthy candidates to practice with\nsuccess the vicious arts by which elections are too often carried;\nand the suffrages of the people being more free, will be more\nlikely to centre in men who possess the most attractive merit and\nthe most diffusive and established characters.\n\nIt must be confessed that in this, as in most other cases, there\nis a mean, on both sides of which inconveniences will be found to\nlie. By enlarging too much the number of electors, you render the\nrepresentatives too little acquainted with all their local\ncircumstances and lesser interests; as by reducing it too much, you\nrender him unduly attached to these, and too little fit to\ncomprehend and pursue great and national objects. The federal\nConstitution forms a happy combination in this respect; the great\nand aggregate interests being referred to the national, the local\nand 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\ncircumstance principally which renders factious combinations less to\nbe dreaded in the former than in the latter. The smaller the\nsociety, the fewer probably will be the distinct parties and\ninterests composing it; the fewer the distinct parties and\ninterests, the more frequently will a majority be found of the same\nparty; and the smaller the number of individuals composing a\nmajority, and the smaller the compass within which they are placed,\nthe more easily will they concert and execute their plans of\noppression. Extend the sphere, and you take in a greater variety of\nparties and interests; you make it less probable that a majority of\nthe whole will have a common motive to invade the rights of other\ncitizens; or if such a common motive exists, it will be more\ndifficult for all who feel it to discover their own strength, and to\nact in unison with each other. Besides other impediments, it may be\nremarked that, where there is a consciousness of unjust or\ndishonorable purposes, communication is always checked by distrust\nin proportion to the number whose concurrence is necessary.\n\nHence, it clearly appears, that the same advantage which a\nrepublic has over a democracy, in controlling the effects of\nfaction, is enjoyed by a large over a small republic,--is enjoyed by\nthe Union over the States composing it. Does the advantage consist\nin the substitution of representatives whose enlightened views and\nvirtuous sentiments render them superior to local prejudices and\nschemes of injustice? It will not be denied that the representation\nof the Union will be most likely to possess these requisite\nendowments. Does it consist in the greater security afforded by a\ngreater variety of parties, against the event of any one party being\nable to outnumber and oppress the rest? In an equal degree does the\nincreased variety of parties comprised within the Union, increase\nthis security. Does it, in fine, consist in the greater obstacles\nopposed to the concert and accomplishment of the secret wishes of an\nunjust 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\ntheir particular States, but will be unable to spread a general\nconflagration through the other States. A religious sect may\ndegenerate into a political faction in a part of the Confederacy;\nbut the variety of sects dispersed over the entire face of it must\nsecure the national councils against any danger from that source. A\nrage for paper money, for an abolition of debts, for an equal\ndivision of property, or for any other improper or wicked project,\nwill be less apt to pervade the whole body of the Union than a\nparticular member of it; in the same proportion as such a malady is\nmore likely to taint a particular county or district, than an entire\nState.\n\nIn the extent and proper structure of the Union, therefore, we\nbehold a republican remedy for the diseases most incident to\nrepublican government. And according to the degree of pleasure and\npride we feel in being republicans, ought to be our zeal in\ncherishing the spirit and supporting the character of Federalists.\n\nPUBLIUS.\n", "date": "Friday, November 23, 1787", "title": "The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection)", "paper_id": 10, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE importance of the Union, in a commercial light, is one of\nthose points about which there is least room to entertain a\ndifference of opinion, and which has, in fact, commanded the most\ngeneral assent of men who have any acquaintance with the subject.\nThis applies as well to our intercourse with foreign countries as\nwith each other.\n\nThere are appearances to authorize a supposition that the\nadventurous spirit, which distinguishes the commercial character of\nAmerica, has already excited uneasy sensations in several of the\nmaritime powers of Europe. They seem to be apprehensive of our too\ngreat interference in that carrying trade, which is the support of\ntheir navigation and the foundation of their naval strength. Those\nof them which have colonies in America look forward to what this\ncountry is capable of becoming, with painful solicitude. They\nforesee the dangers that may threaten their American dominions from\nthe neighborhood of States, which have all the dispositions, and\nwould possess all the means, requisite to the creation of a powerful\nmarine. Impressions of this kind will naturally indicate the policy\nof fostering divisions among us, and of depriving us, as far as\npossible, 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\nclipping the wings by which we might soar to a dangerous greatness.\nDid not prudence forbid the detail, it would not be difficult to\ntrace, by facts, the workings of this policy to the cabinets of\nministers.\n\nIf we continue united, we may counteract a policy so unfriendly\nto our prosperity in a variety of ways. By prohibitory regulations,\nextending, at the same time, throughout the States, we may oblige\nforeign countries to bid against each other, for the privileges of\nour markets. This assertion will not appear chimerical to those who\nare able to appreciate the importance of the markets of three\nmillions of people--increasing in rapid progression, for the most\npart exclusively addicted to agriculture, and likely from local\ncircumstances to remain so--to any manufacturing nation; and the\nimmense difference there would be to the trade and navigation of\nsuch a nation, between a direct communication in its own ships, and\nan indirect conveyance of its products and returns, to and from\nAmerica, in the ships of another country. Suppose, for instance, we\nhad a government in America, capable of excluding Great Britain\n(with whom we have at present no treaty of commerce) from all our\nports; what would be the probable operation of this step upon her\npolitics? Would it not enable us to negotiate, with the fairest\nprospect of success, for commercial privileges of the most valuable\nand extensive kind, in the dominions of that kingdom? When these\nquestions have been asked, upon other occasions, they have received\na plausible, but not a solid or satisfactory answer. It has been\nsaid that prohibitions on our part would produce no change in the\nsystem of Britain, because she could prosecute her trade with us\nthrough the medium of the Dutch, who would be her immediate\ncustomers and paymasters for those articles which were wanted for\nthe supply of our markets. But would not her navigation be\nmaterially injured by the loss of the important advantage of being\nher own carrier in that trade? Would not the principal part of its\nprofits be intercepted by the Dutch, as a compensation for their\nagency and risk? Would not the mere circumstance of freight\noccasion a considerable deduction? Would not so circuitous an\nintercourse facilitate the competitions of other nations, by\nenhancing the price of British commodities in our markets, and by\ntransferring to other hands the management of this interesting\nbranch of the British commerce?\n\nA mature consideration of the objects suggested by these\nquestions will justify a belief that the real disadvantages to\nBritain from such a state of things, conspiring with the\npre-possessions of a great part of the nation in favor of the\nAmerican trade, and with the importunities of the West India\nislands, would produce a relaxation in her present system, and would\nlet us into the enjoyment of privileges in the markets of those\nislands elsewhere, from which our trade would derive the most\nsubstantial benefits. Such a point gained from the British\ngovernment, and which could not be expected without an equivalent in\nexemptions and immunities in our markets, would be likely to have a\ncorrespondent effect on the conduct of other nations, who would not\nbe inclined to see themselves altogether supplanted in our trade.\n\nA further resource for influencing the conduct of European\nnations toward us, in this respect, would arise from the\nestablishment of a federal navy. There can be no doubt that the\ncontinuance of the Union under an efficient government would put it\nin our power, at a period not very distant, to create a navy which,\nif it could not vie with those of the great maritime powers, would\nat least be of respectable weight if thrown into the scale of either\nof two contending parties. This would be more peculiarly the case\nin relation to operations in the West Indies. A few ships of the\nline, sent opportunely to the reinforcement of either side, would\noften be sufficient to decide the fate of a campaign, on the event\nof 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\nIndies, it will readily be perceived that a situation so favorable\nwould enable us to bargain with great advantage for commercial\nprivileges. A price would be set not only upon our friendship, but\nupon our neutrality. By a steady adherence to the Union we may\nhope, erelong, to become the arbiter of Europe in America, and to be\nable to incline the balance of European competitions in this part of\nthe world as our interest may dictate.\n\nBut in the reverse of this eligible situation, we shall discover\nthat the rivalships of the parts would make them checks upon each\nother, and would frustrate all the tempting advantages which nature\nhas kindly placed within our reach. In a state so insignificant our\ncommerce would be a prey to the wanton intermeddlings of all nations\nat war with each other; who, having nothing to fear from us, would\nwith little scruple or remorse, supply their wants by depredations\non our property as often as it fell in their way. The rights of\nneutrality will only be respected when they are defended by an\nadequate power. A nation, despicable by its weakness, forfeits even\nthe privilege of being neutral.\n\nUnder a vigorous national government, the natural strength and\nresources of the country, directed to a common interest, would\nbaffle all the combinations of European jealousy to restrain our\ngrowth. This situation would even take away the motive to such\ncombinations, by inducing an impracticability of success. An active\ncommerce, an extensive navigation, and a flourishing marine would\nthen be the offspring of moral and physical necessity. We might\ndefy the little arts of the little politicians to control or vary\nthe irresistible and unchangeable course of nature.\n\nBut in a state of disunion, these combinations might exist and\nmight operate with success. It would be in the power of the\nmaritime nations, availing themselves of our universal impotence, to\nprescribe the conditions of our political existence; and as they\nhave a common interest in being our carriers, and still more in\npreventing our becoming theirs, they would in all probability\ncombine to embarrass our navigation in such a manner as would in\neffect destroy it, and confine us to a PASSIVE COMMERCE. We should\nthen be compelled to content ourselves with the first price of our\ncommodities, and to see the profits of our trade snatched from us to\nenrich our enemies and persecutors. That unequaled spirit of\nenterprise, which signalizes the genius of the American merchants\nand navigators, and which is in itself an inexhaustible mine of\nnational wealth, would be stifled and lost, and poverty and disgrace\nwould overspread a country which, with wisdom, might make herself\nthe admiration and envy of the world.\n\nThere are rights of great moment to the trade of America which\nare rights of the Union--I allude to the fisheries, to the navigation\nof the Western lakes, and to that of the Mississippi. The\ndissolution of the Confederacy would give room for delicate\nquestions concerning the future existence of these rights; which\nthe interest of more powerful partners would hardly fail to solve to\nour disadvantage. The disposition of Spain with regard to the\nMississippi needs no comment. France and Britain are concerned with\nus in the fisheries, and view them as of the utmost moment to their\nnavigation. They, of course, would hardly remain long indifferent\nto that decided mastery, of which experience has shown us to be\npossessed in this valuable branch of traffic, and by which we are\nable to undersell those nations in their own markets. What more\nnatural than that they should be disposed to exclude from the lists\nsuch dangerous competitors?\n\nThis branch of trade ought not to be considered as a partial\nbenefit. All the navigating States may, in different degrees,\nadvantageously participate in it, and under circumstances of a\ngreater extension of mercantile capital, would not be unlikely to do\nit. As a nursery of seamen, it now is, or when time shall have more\nnearly assimilated the principles of navigation in the several\nStates, will become, a universal resource. To the establishment of\na navy, it must be indispensable.\n\nTo this great national object, a NAVY, union will contribute in\nvarious ways. Every institution will grow and flourish in\nproportion to the quantity and extent of the means concentred\ntowards its formation and support. A navy of the United States, as\nit would embrace the resources of all, is an object far less remote\nthan a navy of any single State or partial confederacy, which would\nonly embrace the resources of a single part. It happens, indeed,\nthat different portions of confederated America possess each some\npeculiar advantage for this essential establishment. The more\nsouthern States furnish in greater abundance certain kinds of naval\nstores--tar, pitch, and turpentine. Their wood for the construction\nof ships is also of a more solid and lasting texture. The\ndifference in the duration of the ships of which the navy might be\ncomposed, if chiefly constructed of Southern wood, would be of\nsignal importance, either in the view of naval strength or of\nnational economy. Some of the Southern and of the Middle States\nyield a greater plenty of iron, and of better quality. Seamen must\nchiefly be drawn from the Northern hive. The necessity of naval\nprotection to external or maritime commerce does not require a\nparticular elucidation, no more than the conduciveness of that\nspecies of commerce to the prosperity of a navy.\n\nAn unrestrained intercourse between the States themselves will\nadvance the trade of each by an interchange of their respective\nproductions, not only for the supply of reciprocal wants at home,\nbut for exportation to foreign markets. The veins of commerce in\nevery part will be replenished, and will acquire additional motion\nand vigor from a free circulation of the commodities of every part.\nCommercial enterprise will have much greater scope, from the\ndiversity in the productions of different States. When the staple\nof one fails from a bad harvest or unproductive crop, it can call to\nits aid the staple of another. The variety, not less than the\nvalue, of products for exportation contributes to the activity of\nforeign commerce. It can be conducted upon much better terms with a\nlarge number of materials of a given value than with a small number\nof materials of the same value; arising from the competitions of\ntrade and from the fluctations of markets. Particular articles may\nbe in great demand at certain periods, and unsalable at others; but\nif there be a variety of articles, it can scarcely happen that they\nshould all be at one time in the latter predicament, and on this\naccount the operations of the merchant would be less liable to any\nconsiderable obstruction or stagnation. The speculative trader will\nat once perceive the force of these observations, and will\nacknowledge that the aggregate balance of the commerce of the United\nStates would bid fair to be much more favorable than that of the\nthirteen States without union or with partial unions.\n\nIt may perhaps be replied to this, that whether the States are\nunited or disunited, there would still be an intimate intercourse\nbetween them which would answer the same ends; this intercourse\nwould be fettered, interrupted, and narrowed by a multiplicity of\ncauses, which in the course of these papers have been amply detailed.\nA unity of commercial, as well as political, interests, can only\nresult from a unity of government.\n\nThere are other points of view in which this subject might be\nplaced, of a striking and animating kind. But they would lead us\ntoo far into the regions of futurity, and would involve topics not\nproper for a newspaper discussion. I shall briefly observe, that\nour situation invites and our interests prompt us to aim at an\nascendant in the system of American affairs. The world may\npolitically, as well as geographically, be divided into four parts,\neach having a distinct set of interests. Unhappily for the other\nthree, Europe, by her arms and by her negotiations, by force and by\nfraud, has, in different degrees, extended her dominion over them\nall. Africa, Asia, and America, have successively felt her\ndomination. The superiority she has long maintained has tempted her\nto 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,\nand with them the human species, degenerate in America--that even\ndogs cease to bark after having breathed awhile in our\natmosphere. [1] Facts have too long supported these arrogant\npretensions of the Europeans. It belongs to us to vindicate the\nhonor of the human race, and to teach that assuming brother,\nmoderation. Union will enable us to do it. Disunion will will add\nanother victim to his triumphs. Let Americans disdain to be the\ninstruments of European greatness! Let the thirteen States, bound\ntogether in a strict and indissoluble Union, concur in erecting one\ngreat American system, superior to the control of all transatlantic\nforce or influence, and able to dictate the terms of the connection\nbetween the old and the new world!\n\nPUBLIUS.\n\n1. \"Recherches philosophiques sur les Americains.\"\n", "date": null, "title": "The Utility of the Union in Respect to Commercial Relations and a Navy", "paper_id": 11, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE effects of Union upon the commercial prosperity of the\nStates have been sufficiently delineated. Its tendency to promote\nthe interests of revenue 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\nenterprise, it serves to vivify and invigorate the channels of\nindustry, and to make them flow with greater activity and\ncopiousness. The assiduous merchant, the laborious husbandman, the\nactive mechanic, and the industrious manufacturer,--all orders of\nmen, look forward with eager expectation and growing alacrity to\nthis pleasing reward of their toils. The often-agitated question\nbetween agriculture and commerce has, from indubitable experience,\nreceived a decision which has silenced the rivalship that once\nsubsisted between them, and has proved, to the satisfaction of their\nfriends, that their interests are intimately blended and interwoven.\nIt has been found in various countries that, in proportion as\ncommerce has flourished, land has risen in value. And how could it\nhave happened otherwise? Could that which procures a freer vent for\nthe products of the earth, which furnishes new incitements to the\ncultivation of land, which is the most powerful instrument in\nincreasing the quantity of money in a state--could that, in fine,\nwhich is the faithful handmaid of labor and industry, in every\nshape, fail to augment that article, which is the prolific parent of\nfar the greatest part of the objects upon which they are exerted?\nIt is astonishing that so simple a truth should ever have had an\nadversary; and it is one, among a multitude of proofs, how apt a\nspirit of ill-informed jealousy, or of too great abstraction and\nrefinement, is to lead men astray from the plainest truths of reason\nand conviction.\n\nThe ability of a country to pay taxes must always be\nproportioned, in a great degree, to the quantity of money in\ncirculation, and to the celerity with which it circulates.\nCommerce, contributing to both these objects, must of necessity\nrender the payment of taxes easier, and facilitate the requisite\nsupplies to the treasury. The hereditary dominions of the Emperor\nof Germany contain a great extent of fertile, cultivated, and\npopulous territory, a large proportion of which is situated in mild\nand luxuriant climates. In some parts of this territory are to be\nfound the best gold and silver mines in Europe. And yet, from the\nwant of the fostering influence of commerce, that monarch can boast\nbut slender revenues. He has several times been compelled to owe\nobligations 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\nwill be seen to conduce to the purpose of revenue. There are other\npoints of view, in which its influence will appear more immediate\nand decisive. It is evident from the state of the country, from the\nhabits of the people, from the experience we have had on the point\nitself, that it is impracticable to raise any very considerable sums\nby direct taxation. Tax laws have in vain been multiplied; new\nmethods to enforce the collection have in vain been tried; the\npublic expectation has been uniformly disappointed, and the\ntreasuries of the States have remained empty. The popular system of\nadministration inherent in the nature of popular government,\ncoinciding with the real scarcity of money incident to a languid and\nmutilated state of trade, has hitherto defeated every experiment for\nextensive collections, and has at length taught the different\nlegislatures the folly of attempting them.\n\nNo person acquainted with what happens in other countries will\nbe surprised at this circumstance. In so opulent a nation as that\nof Britain, where direct taxes from superior wealth must be much\nmore tolerable, and, from the vigor of the government, much more\npracticable, than in America, far the greatest part of the national\nrevenue is derived from taxes of the indirect kind, from imposts,\nand from excises. Duties on imported articles form a large branch\nof this latter description.\n\nIn America, it is evident that we must a long time depend for\nthe means of revenue chiefly on such duties. In most parts of it,\nexcises must be confined within a narrow compass. The genius of the\npeople will ill brook the inquisitive and peremptory spirit of\nexcise laws. The pockets of the farmers, on the other hand, will\nreluctantly yield but scanty supplies, in the unwelcome shape of\nimpositions on their houses and lands; and personal property is too\nprecarious and invisible a fund to be laid hold of in any other way\nthan by the inperceptible agency of taxes on consumption.\n\nIf these remarks have any foundation, that state of things which\nwill best enable us to improve and extend so valuable a resource\nmust be best adapted to our political welfare. And it cannot admit\nof a serious doubt, that this state of things must rest on the basis\nof a general Union. As far as this would be conducive to the\ninterests of commerce, so far it must tend to the extension of the\nrevenue to be drawn from that source. As far as it would contribute\nto rendering regulations for the collection of the duties more\nsimple and efficacious, so far it must serve to answer the purposes\nof making the same rate of duties more productive, and of putting it\ninto the power of the government to increase the rate without\nprejudice to trade.\n\nThe relative situation of these States; the number of rivers\nwith which they are intersected, and of bays that wash there shores;\nthe facility of communication in every direction; the affinity of\nlanguage and manners; the familiar habits of intercourse; --all\nthese are circumstances that would conspire to render an illicit\ntrade between them a matter of little difficulty, and would insure\nfrequent evasions of the commercial regulations of each other. The\nseparate States or confederacies would be necessitated by mutual\njealousy to avoid the temptations to that kind of trade by the\nlowness of their duties. The temper of our governments, for a long\ntime to come, would not permit those rigorous precautions by which\nthe European nations guard the avenues into their respective\ncountries, as well by land as by water; and which, even there, are\nfound insufficient obstacles to the adventurous stratagems of\navarice.\n\nIn France, there is an army of patrols (as they are called)\nconstantly employed to secure their fiscal regulations against the\ninroads of the dealers in contraband trade. Mr. Neckar computes the\nnumber of these patrols at upwards of twenty thousand. This shows\nthe immense difficulty in preventing that species of traffic, where\nthere is an inland communication, and places in a strong light the\ndisadvantages with which the collection of duties in this country\nwould be encumbered, if by disunion the States should be placed in a\nsituation, with respect to each other, resembling that of France\nwith respect to her neighbors. The arbitrary and vexatious powers\nwith which the patrols are necessarily armed, would be intolerable\nin a free country.\n\nIf, on the contrary, there be but one government pervading all\nthe States, there will be, as to the principal part of our commerce,\nbut ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly\nfrom foreign countries, laden with valuable cargoes, would rarely\nchoose to hazard themselves to the complicated and critical perils\nwhich would attend attempts to unlade prior to their coming into\nport. They would have to dread both the dangers of the coast, and\nof detection, as well after as before their arrival at the places of\ntheir final destination. An ordinary degree of vigilance would be\ncompetent to the prevention of any material infractions upon the\nrights of the revenue. A few armed vessels, judiciously stationed\nat the entrances of our ports, might at a small expense be made\nuseful sentinels of the laws. And the government having the same\ninterest to provide against violations everywhere, the co-operation\nof its measures in each State would have a powerful tendency to\nrender them effectual. Here also we should preserve by Union, an\nadvantage which nature holds out to us, and which would be\nrelinquished by separation. The United States lie at a great\ndistance from Europe, and at a considerable distance from all other\nplaces with which they would have extensive connections of foreign\ntrade. The passage from them to us, in a few hours, or in a single\nnight, as between the coasts of France and Britain, and of other\nneighboring nations, would be impracticable. This is a prodigious\nsecurity against a direct contraband with foreign countries; but a\ncircuitous contraband to one State, through the medium of another,\nwould be both easy and safe. The difference between a direct\nimportation from abroad, and an indirect importation through the\nchannel of a neighboring State, in small parcels, according to time\nand opportunity, with the additional facilities of inland\ncommunication, must be palpable to every man of discernment.\n\nIt is therefore evident, that one national government would be\nable, at much less expense, to extend the duties on imports, beyond\ncomparison, further than would be practicable to the States\nseparately, or to any partial confederacies. Hitherto, I believe,\nit may safely be asserted, that these duties have not upon an\naverage exceeded in any State three per cent. In France they are\nestimated to be about fifteen per cent., and in Britain they exceed\nthis proportion. [1] There seems to be nothing to hinder their\nbeing increased in this country to at least treble their present\namount. 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\nimported into the United States may be estimated at four millions of\ngallons; which, at a shilling per gallon, would produce two hundred\nthousand pounds. That article would well bear this rate of duty;\nand if it should tend to diminish the consumption of it, such an\neffect would be equally favorable to the agriculture, to the\neconomy, to the morals, and to the health of the society. There is,\nperhaps, nothing so much a subject of national extravagance as these\nspirits.\n\nWhat will be the consequence, if we are not able to avail\nourselves of the resource in question in its full extent? A nation\ncannot long exist without revenues. Destitute of this essential\nsupport, it must resign its independence, and sink into the degraded\ncondition of a province. This is an extremity to which no\ngovernment will of choice accede. Revenue, therefore, must be had\nat all events. In this country, if the principal part be not drawn\nfrom commerce, it must fall with oppressive weight upon land. It\nhas been already intimated that excises, in their true\nsignification, are too little in unison with the feelings of the\npeople, to admit of great use being made of that mode of taxation;\nnor, indeed, in the States where almost the sole employment is\nagriculture, are the objects proper for excise sufficiently numerous\nto permit very ample collections in that way. Personal estate (as\nhas been before remarked), from the difficulty in tracing it, cannot\nbe subjected to large contributions, by any other means than by\ntaxes on consumption. In populous cities, it may be enough the\nsubject of conjecture, to occasion the oppression of individuals,\nwithout much aggregate benefit to the State; but beyond these\ncircles, it must, in a great measure, escape the eye and the hand of\nthe tax-gatherer. As the necessities of the State, nevertheless,\nmust be satisfied in some mode or other, the defect of other\nresources must throw the principal weight of public burdens on the\npossessors of land. And as, on the other hand, the wants of the\ngovernment can never obtain an adequate supply, unless all the\nsources of revenue are open to its demands, the finances of the\ncommunity, under such embarrassments, cannot be put into a situation\nconsistent with its respectability or its security. Thus we shall\nnot even have the consolations of a full treasury, to atone for the\noppression of that valuable class of the citizens who are employed\nin the cultivation of the soil. But public and private distress\nwill keep pace with each other in gloomy concert; and unite in\ndeploring the infatuation of those counsels which led to disunion.\n\nPUBLIUS.\n\n1. If my memory be right they amount to twenty per cent.\n", "date": "Tuesday, November 27, 1787", "title": "The Utility of the Union In Respect to Revenue", "paper_id": 12, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nAs CONNECTED with the subject of revenue, we may with propriety\nconsider that of economy. The money saved from one object may be\nusefully applied to another, and there will be so much the less to\nbe drawn from the pockets of the people. If the States are united\nunder one government, there will be but one national civil list to\nsupport; if they are divided into several confederacies, there will\nbe as many different national civil lists to be provided for--and\neach of them, as to the principal departments, coextensive with that\nwhich would be necessary for a government of the whole. The entire\nseparation of the States into thirteen unconnected sovereignties is\na project too extravagant and too replete with danger to have many\nadvocates. The ideas of men who speculate upon the dismemberment of\nthe empire seem generally turned toward three confederacies--one\nconsisting of the four Northern, another of the four Middle, and a\nthird of the five Southern States. There is little probability that\nthere would be a greater number. According to this distribution,\neach confederacy would comprise an extent of territory larger than\nthat of the kingdom of Great Britain. No well-informed man will\nsuppose that the affairs of such a confederacy can be properly\nregulated by a government less comprehensive in its organs or\ninstitutions than that which has been proposed by the convention.\nWhen the dimensions of a State attain to a certain magnitude, it\nrequires the same energy of government and the same forms of\nadministration which are requisite in one of much greater extent.\nThis idea admits not of precise demonstration, because there is no\nrule by which we can measure the momentum of civil power necessary\nto the government of any given number of individuals; but when we\nconsider that the island of Britain, nearly commensurate with each\nof the supposed confederacies, contains about eight millions of\npeople, and when we reflect upon the degree of authority required to\ndirect the passions of so large a society to the public good, we\nshall see no reason to doubt that the like portion of power would be\nsufficient to perform the same task in a society far more numerous.\nCivil power, properly organized and exerted, is capable of\ndiffusing its force to a very great extent; and can, in a manner,\nreproduce itself in every part of a great empire by a judicious\narrangement of subordinate institutions.\n\nThe supposition that each confederacy into which the States\nwould be likely to be divided would require a government not less\ncomprehensive than the one proposed, will be strengthened by another\nsupposition, more probable than that which presents us with three\nconfederacies as the alternative to a general Union. If we attend\ncarefully to geographical and commercial considerations, in\nconjunction with the habits and prejudices of the different States,\nwe shall be led to conclude that in case of disunion they will most\nnaturally league themselves under two governments. The four Eastern\nStates, from all the causes that form the links of national sympathy\nand connection, may with certainty be expected to unite. New York,\nsituated as she is, would never be unwise enough to oppose a feeble\nand unsupported flank to the weight of that confederacy. There are\nother obvious reasons that would facilitate her accession to it.\nNew Jersey is too small a State to think of being a frontier, in\nopposition to this still more powerful combination; nor do there\nappear to be any obstacles to her admission into it. Even\nPennsylvania would have strong inducements to join the Northern\nleague. An active foreign commerce, on the basis of her own\nnavigation, is her true policy, and coincides with the opinions and\ndispositions of her citizens. The more Southern States, from\nvarious circumstances, may not think themselves much interested in\nthe encouragement of navigation. They may prefer a system which\nwould give unlimited scope to all nations to be the carriers as well\nas the purchasers of their commodities. Pennsylvania may not choose\nto confound her interests in a connection so adverse to her policy.\nAs she must at all events be a frontier, she may deem it most\nconsistent with her safety to have her exposed side turned towards\nthe weaker power of the Southern, rather than towards the stronger\npower of the Northern, Confederacy. This would give her the fairest\nchance to avoid being the Flanders of America. Whatever may be the\ndetermination of Pennsylvania, if the Northern Confederacy includes\nNew Jersey, there is no likelihood of more than one confederacy to\nthe south of that State.\n\nNothing can be more evident than that the thirteen States will\nbe able to support a national government better than one half, or\none third, or any number less than the whole. This reflection must\nhave great weight in obviating that objection to the proposed plan,\nwhich is founded on the principle of expense; an objection,\nhowever, which, when we come to take a nearer view of it, will\nappear in every light to stand on mistaken ground.\n\nIf, in addition to the consideration of a plurality of civil\nlists, we take into view the number of persons who must necessarily\nbe employed to guard the inland communication between the different\nconfederacies against illicit trade, and who in time will infallibly\nspring up out of the necessities of revenue; and if we also take\ninto view the military establishments which it has been shown would\nunavoidably result from the jealousies and conflicts of the several\nnations into which the States would be divided, we shall clearly\ndiscover that a separation would be not less injurious to the\neconomy, than to the tranquillity, commerce, revenue, and liberty of\nevery part.\n\nPUBLIUS.\n", "date": null, "title": "Advantage of the Union in Respect to Economy in Government", "paper_id": 13, "venue": "For the Independent Journal"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nWE HAVE seen the necessity of the Union, as our bulwark against\nforeign danger, as the conservator of peace among ourselves, as the\nguardian of our commerce and other common interests, as the only\nsubstitute for those military establishments which have subverted\nthe liberties of the Old World, and as the proper antidote for the\ndiseases of faction, which have proved fatal to other popular\ngovernments, and of which alarming symptoms have been betrayed by\nour own. All that remains, within this branch of our inquiries, is\nto take notice of an objection that may be drawn from the great\nextent of country which the Union embraces. A few observations on\nthis subject will be the more proper, as it is perceived that the\nadversaries of the new Constitution are availing themselves of the\nprevailing prejudice with regard to the practicable sphere of\nrepublican administration, in order to supply, by imaginary\ndifficulties, the want of those solid objections which they endeavor\nin vain to find.\n\nThe error which limits republican government to a narrow\ndistrict has been unfolded and refuted in preceding papers. I\nremark here only that it seems to owe its rise and prevalence\nchiefly to the confounding of a republic with a democracy, applying\nto the former reasonings drawn from the nature of the latter. The\ntrue distinction between these forms was also adverted to on a\nformer occasion. It is, that in a democracy, the people meet and\nexercise the government in person; in a republic, they assemble and\nadminister it by their representatives and agents. A democracy,\nconsequently, will be confined to a small spot. A republic may be\nextended over a large region.\n\nTo this accidental source of the error may be added the artifice\nof some celebrated authors, whose writings have had a great share in\nforming the modern standard of political opinions. Being subjects\neither of an absolute or limited monarchy, they have endeavored to\nheighten the advantages, or palliate the evils of those forms, by\nplacing in comparison the vices and defects of the republican, and\nby citing as specimens of the latter the turbulent democracies of\nancient Greece and modern Italy. Under the confusion of names, it\nhas been an easy task to transfer to a republic observations\napplicable to a democracy only; and among others, the observation\nthat it can never be established but among a small number of people,\nliving within a small compass of territory.\n\nSuch a fallacy may have been the less perceived, as most of the\npopular governments of antiquity were of the democratic species;\nand even in modern Europe, to which we owe the great principle of\nrepresentation, no example is seen of a government wholly popular,\nand founded, at the same time, wholly on that principle. If Europe\nhas the merit of discovering this great mechanical power in\ngovernment, by the simple agency of which the will of the largest\npolitical body may be concentred, and its force directed to any\nobject which the public good requires, America can claim the merit\nof making the discovery the basis of unmixed and extensive republics.\nIt is only to be lamented that any of her citizens should wish to\ndeprive her of the additional merit of displaying its full efficacy\nin the establishment of the comprehensive system now under her\nconsideration.\n\nAs the natural limit of a democracy is that distance from the\ncentral point which will just permit the most remote citizens to\nassemble as often as their public functions demand, and will include\nno greater number than can join in those functions; so the natural\nlimit of a republic is that distance from the centre which will\nbarely allow the representatives to meet as often as may be\nnecessary for the administration of public affairs. Can it be said\nthat the limits of the United States exceed this distance? It will\nnot be said by those who recollect that the Atlantic coast is the\nlongest side of the Union, that during the term of thirteen years,\nthe representatives of the States have been almost continually\nassembled, and that the members from the most distant States are not\nchargeable with greater intermissions of attendance than those from\nthe States in the neighborhood of Congress.\n\nThat we may form a juster estimate with regard to this\ninteresting subject, let us resort to the actual dimensions of the\nUnion. The limits, as fixed by the treaty of peace, are: on the\neast the Atlantic, on the south the latitude of thirty-one degrees,\non the west the Mississippi, and on the north an irregular line\nrunning in some instances beyond the forty-fifth degree, in others\nfalling as low as the forty-second. The southern shore of Lake Erie\nlies below that latitude. Computing the distance between the\nthirty-first and forty-fifth degrees, it amounts to nine hundred and\nseventy-three common miles; computing it from thirty-one to\nforty-two degrees, to seven hundred and sixty-four miles and a half.\nTaking the mean for the distance, the amount will be eight hundred\nand sixty-eight miles and three-fourths. The mean distance from the\nAtlantic to the Mississippi does not probably exceed seven hundred\nand fifty miles. On a comparison of this extent with that of\nseveral countries in Europe, the practicability of rendering our\nsystem commensurate to it appears to be demonstrable. It is not a\ngreat deal larger than Germany, where a diet representing the whole\nempire is continually assembled; or than Poland before the late\ndismemberment, where another national diet was the depositary of the\nsupreme power. Passing by France and Spain, we find that in Great\nBritain, inferior as it may be in size, the representatives of the\nnorthern extremity of the island have as far to travel to the\nnational council as will be required of those of the most remote\nparts of the Union.\n\nFavorable as this view of the subject may be, some observations\nremain which will place it in a light still more satisfactory.\n\nIn the first place it is to be remembered that the general\ngovernment is not to be charged with the whole power of making and\nadministering laws. Its jurisdiction is limited to certain\nenumerated objects, which concern all the members of the republic,\nbut which are not to be attained by the separate provisions of any.\nThe subordinate governments, which can extend their care to all\nthose other subjects which can be separately provided for, will\nretain their due authority and activity. Were it proposed by the\nplan of the convention to abolish the governments of the particular\nStates, its adversaries would have some ground for their objection;\nthough it would not be difficult to show that if they were\nabolished the general government would be compelled, by the\nprinciple of self-preservation, to reinstate them in their proper\njurisdiction.\n\nA second observation to be made is that the immediate object of\nthe federal Constitution is to secure the union of the thirteen\nprimitive States, which we know to be practicable; and to add to\nthem such other States as may arise in their own bosoms, or in their\nneighborhoods, which we cannot doubt to be equally practicable. The\narrangements that may be necessary for those angles and fractions of\nour territory which lie on our northwestern frontier, must be left\nto those whom further discoveries and experience will render more\nequal to the task.\n\nLet it be remarked, in the third place, that the intercourse\nthroughout the Union will be facilitated by new improvements. Roads\nwill everywhere be shortened, and kept in better order;\naccommodations for travelers will be multiplied and meliorated; an\ninterior navigation on our eastern side will be opened throughout,\nor nearly throughout, the whole extent of the thirteen States. The\ncommunication between the Western and Atlantic districts, and\nbetween different parts of each, will be rendered more and more easy\nby those numerous canals with which the beneficence of nature has\nintersected our country, and which art finds it so little difficult\nto connect and complete.\n\nA fourth and still more important consideration is, that as\nalmost every State will, on one side or other, be a frontier, and\nwill thus find, in regard to its safety, an inducement to make some\nsacrifices for the sake of the general protection; so the States\nwhich lie at the greatest distance from the heart of the Union, and\nwhich, of course, may partake least of the ordinary circulation of\nits benefits, will be at the same time immediately contiguous to\nforeign nations, and will consequently stand, on particular\noccasions, in greatest need of its strength and resources. It may\nbe inconvenient for Georgia, or the States forming our western or\nnortheastern borders, to send their representatives to the seat of\ngovernment; but they would find it more so to struggle alone\nagainst an invading enemy, or even to support alone the whole\nexpense of those precautions which may be dictated by the\nneighborhood of continual danger. If they should derive less\nbenefit, therefore, from the Union in some respects than the less\ndistant States, they will derive greater benefit from it in other\nrespects, and thus the proper equilibrium will be maintained\nthroughout.\n\nI submit to you, my fellow-citizens, these considerations, in\nfull confidence that the good sense which has so often marked your\ndecisions will allow them their due weight and effect; and that you\nwill never suffer difficulties, however formidable in appearance, or\nhowever fashionable the error on which they may be founded, to drive\nyou into the gloomy and perilous scene into which the advocates for\ndisunion would conduct you. Hearken not to the unnatural voice\nwhich tells you that the people of America, knit together as they\nare by so many cords of affection, can no longer live together as\nmembers of the same family; can no longer continue the mutual\nguardians of their mutual happiness; can no longer be\nfellowcitizens of one great, respectable, and flourishing empire.\nHearken not to the voice which petulantly tells you that the form\nof government recommended for your adoption is a novelty in the\npolitical world; that it has never yet had a place in the theories\nof 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\nbe shunned, believe me, the most alarming of all novelties, the most\nwild of all projects, the most rash of all attempts, is that of\nrendering us in pieces, in order to preserve our liberties and\npromote our happiness. But why is the experiment of an extended\nrepublic to be rejected, merely because it may comprise what is new?\nIs it not the glory of the people of America, that, whilst they\nhave paid a decent regard to the opinions of former times and other\nnations, they have not suffered a blind veneration for antiquity,\nfor custom, or for names, to overrule the suggestions of their own\ngood sense, the knowledge of their own situation, and the lessons of\ntheir own experience? To this manly spirit, posterity will be\nindebted for the possession, and the world for the example, of the\nnumerous innovations displayed on the American theatre, in favor of\nprivate rights and public happiness. Had no important step been\ntaken by the leaders of the Revolution for which a precedent could\nnot be discovered, no government established of which an exact model\ndid not present itself, the people of the United States might, at\nthis 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\nof mankind. Happily for America, happily, we trust, for the whole\nhuman race, they pursued a new and more noble course. They\naccomplished a revolution which has no parallel in the annals of\nhuman society. They reared the fabrics of governments which have no\nmodel on the face of the globe. They formed the design of a great\nConfederacy, which it is incumbent on their successors to improve\nand perpetuate. If their works betray imperfections, we wonder at\nthe fewness of them. If they erred most in the structure of the\nUnion, this was the work most difficult to be executed; this is the\nwork which has been new modelled by the act of your convention, and\nit is that act on which you are now to deliberate and to decide.\n\nPUBLIUS.\n", "date": "Friday, November 30, 1787", "title": "Objections to the Proposed Constitution From Extent of Territory Answered", "paper_id": 14, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIN THE course of the preceding papers, I have endeavored, my\nfellow-citizens, to place before you, in a clear and convincing\nlight, the importance of Union to your political safety and\nhappiness. I have unfolded to you a complication of dangers to\nwhich you would be exposed, should you permit that sacred knot which\nbinds the people of America together be severed or dissolved by\nambition or by avarice, by jealousy or by misrepresentation. In the\nsequel of the inquiry through which I propose to accompany you, the\ntruths intended to be inculcated will receive further confirmation\nfrom facts and arguments hitherto unnoticed. If the road over which\nyou will still have to pass should in some places appear to you\ntedious or irksome, you will recollect that you are in quest of\ninformation on a subject the most momentous which can engage the\nattention of a free people, that the field through which you have to\ntravel is in itself spacious, and that the difficulties of the\njourney have been unnecessarily increased by the mazes with which\nsophistry has beset the way. It will be my aim to remove the\nobstacles from your progress in as compendious a manner as it can be\ndone, without sacrificing utility to despatch.\n\nIn pursuance of the plan which I have laid down for the\ndiscussion of the subject, the point next in order to be examined is\nthe \"insufficiency of the present Confederation to the preservation\nof the Union.\" It may perhaps be asked what need there is of\nreasoning or proof to illustrate a position which is not either\ncontroverted or doubted, to which the understandings and feelings of\nall classes of men assent, and which in substance is admitted by the\nopponents as well as by the friends of the new Constitution. It\nmust in truth be acknowledged that, however these may differ in\nother respects, they in general appear to harmonize in this\nsentiment, at least, that there are material imperfections in our\nnational system, and that something is necessary to be done to\nrescue us from impending anarchy. The facts that support this\nopinion 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\nprincipal share in precipitating the extremity at which we are\narrived, a reluctant confession of the reality of those defects in\nthe scheme of our federal government, which have been long pointed\nout and regretted by the intelligent friends of the Union.\n\nWe may indeed with propriety be said to have reached almost the\nlast stage of national humiliation. There is scarcely anything that\ncan wound the pride or degrade the character of an independent\nnation which we do not experience. Are there engagements to the\nperformance of which we are held by every tie respectable among men?\nThese are the subjects of constant and unblushing violation. Do we\nowe debts to foreigners and to our own citizens contracted in a time\nof imminent peril for the preservation of our political existence?\nThese remain without any proper or satisfactory provision for their\ndischarge. Have we valuable territories and important posts in the\npossession of a foreign power which, by express stipulations, ought\nlong since to have been surrendered? These are still retained, to\nthe prejudice of our interests, not less than of our rights. Are we\nin a condition to resent or to repel the aggression? We have\nneither troops, nor treasury, nor government. [1] Are we even in a\ncondition to remonstrate with dignity? The just imputations on our\nown faith, in respect to the same treaty, ought first to be removed.\nAre we entitled by nature and compact to a free participation in\nthe navigation of the Mississippi? Spain excludes us from it. Is\npublic credit an indispensable resource in time of public danger?\nWe seem to have abandoned its cause as desperate and irretrievable.\nIs commerce of importance to national wealth? Ours is at the\nlowest point of declension. Is respectability in the eyes of\nforeign powers a safeguard against foreign encroachments? The\nimbecility of our government even forbids them to treat with us.\nOur ambassadors abroad are the mere pageants of mimic sovereignty.\nIs a violent and unnatural decrease in the value of land a symptom\nof national distress? The price of improved land in most parts of\nthe country is much lower than can be accounted for by the quantity\nof waste land at market, and can only be fully explained by that\nwant of private and public confidence, which are so alarmingly\nprevalent among all ranks, and which have a direct tendency to\ndepreciate property of every kind. Is private credit the friend and\npatron of industry? That most useful kind which relates to\nborrowing and lending is reduced within the narrowest limits, and\nthis still more from an opinion of insecurity than from the scarcity\nof money. To shorten an enumeration of particulars which can afford\nneither pleasure nor instruction, it may in general be demanded,\nwhat indication is there of national disorder, poverty, and\ninsignificance that could befall a community so peculiarly blessed\nwith natural advantages as we are, which does not form a part of the\ndark catalogue of our public misfortunes?\n\nThis is the melancholy situation to which we have been brought\nby those very maxims and councils which would now deter us from\nadopting the proposed Constitution; and which, not content with\nhaving conducted us to the brink of a precipice, seem resolved to\nplunge us into the abyss that awaits us below. Here, my countrymen,\nimpelled by every motive that ought to influence an enlightened\npeople, let us make a firm stand for our safety, our tranquillity,\nour dignity, our reputation. Let us at last break the fatal charm\nwhich has too long seduced us from the paths of felicity and\nprosperity.\n\nIt is true, as has been before observed that facts, too stubborn\nto be resisted, have produced a species of general assent to the\nabstract proposition that there exist material defects in our\nnational system; but the usefulness of the concession, on the part\nof the old adversaries of federal measures, is destroyed by a\nstrenuous opposition to a remedy, upon the only principles that can\ngive it a chance of success. While they admit that the government\nof the United States is destitute of energy, they contend against\nconferring upon it those powers which are requisite to supply that\nenergy. They seem still to aim at things repugnant and\nirreconcilable; at an augmentation of federal authority, without a\ndiminution of State authority; at sovereignty in the Union, and\ncomplete independence in the members. They still, in fine, seem to\ncherish with blind devotion the political monster of an imperium\nin imperio. This renders a full display of the principal defects\nof the Confederation necessary, in order to show that the evils we\nexperience do not proceed from minute or partial imperfections, but\nfrom fundamental errors in the structure of the building, which\ncannot be amended otherwise than by an alteration in the first\nprinciples and main pillars 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.\nThough this principle does not run through all the powers delegated\nto the Union, yet it pervades and governs those on which the\nefficacy of the rest depends. Except as to the rule of appointment,\nthe United States has an indefinite discretion to make requisitions\nfor men and money; but they have no authority to raise either, by\nregulations extending to the individual citizens of America. The\nconsequence of this is, that though in theory their resolutions\nconcerning those objects are laws, constitutionally binding on the\nmembers of the Union, yet in practice they are mere recommendations\nwhich the States observe or disregard at their option.\n\nIt is a singular instance of the capriciousness of the human\nmind, that after all the admonitions we have had from experience on\nthis head, there should still be found men who object to the new\nConstitution, for deviating from a principle which has been found\nthe bane of the old, and which is in itself evidently incompatible\nwith the idea of GOVERNMENT; a principle, in short, which, if it is\nto be executed at all, must substitute the violent and sanguinary\nagency of the sword to the mild influence of the magistracy.\n\nThere is nothing absurd or impracticable in the idea of a league\nor alliance between independent nations for certain defined purposes\nprecisely stated in a treaty regulating all the details of time,\nplace, circumstance, and quantity; leaving nothing to future\ndiscretion; and depending for its execution on the good faith of\nthe parties. Compacts of this kind exist among all civilized\nnations, subject to the usual vicissitudes of peace and war, of\nobservance and non-observance, as the interests or passions of the\ncontracting powers dictate. In the early part of the present\ncentury there was an epidemical rage in Europe for this species of\ncompacts, from which the politicians of the times fondly hoped for\nbenefits which were never realized. With a view to establishing the\nequilibrium of power and the peace of that part of the world, all\nthe resources of negotiation were exhausted, and triple and\nquadruple alliances were formed; but they were scarcely formed\nbefore they were broken, giving an instructive but afflicting lesson\nto mankind, how little dependence is to be placed on treaties which\nhave no other sanction than the obligations of good faith, and which\noppose general considerations of peace and justice to the impulse of\nany immediate interest or passion.\n\nIf the particular States in this country are disposed to stand\nin a similar relation to each other, and to drop the project of a\ngeneral DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be\npernicious, and would entail upon us all the mischiefs which have\nbeen enumerated under the first head; but it would have the merit\nof being, at least, consistent and practicable Abandoning all views\ntowards a confederate government, this would bring us to a simple\nalliance offensive and defensive; and would place us in a situation\nto be alternate friends and enemies of each other, as our mutual\njealousies and rivalships, nourished by the intrigues of foreign\nnations, should prescribe to us.\n\nBut if we are unwilling to be placed in this perilous situation;\nif we still will adhere to the design of a national government, or,\nwhich is the same thing, of a superintending power, under the\ndirection of a common council, we must resolve to incorporate into\nour plan those ingredients which may be considered as forming the\ncharacteristic difference between a league and a government; we\nmust extend the authority of the Union to the persons of the\ncitizens, --the only proper objects of government.\n\nGovernment implies the power of making laws. It is essential to\nthe idea of a law, that it be attended with a sanction; or, in\nother words, a penalty or punishment for disobedience. If there be\nno penalty annexed to disobedience, the resolutions or commands\nwhich pretend to be laws will, in fact, amount to nothing more than\nadvice or recommendation. This penalty, whatever it may be, can\nonly be inflicted in two ways: by the agency of the courts and\nministers of justice, or by military force; by the COERCION of the\nmagistracy, or by the COERCION of arms. The first kind can\nevidently apply only to men; the last kind must of necessity, be\nemployed 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\nsentences can only be carried into execution by the sword. In an\nassociation where the general authority is confined to the\ncollective bodies of the communities, that compose it, every breach\nof the laws must involve a state of war; and military execution\nmust become the only instrument of civil obedience. Such a state of\nthings can certainly not deserve the name of government, nor would\nany prudent man choose to commit his happiness to it.\n\nThere was a time when we were told that breaches, by the States,\nof the regulations of the federal authority were not to be expected;\nthat a sense of common interest would preside over the conduct of\nthe respective members, and would beget a full compliance with all\nthe constitutional requisitions of the Union. This language, at the\npresent day, would appear as wild as a great part of what we now\nhear from the same quarter will be thought, when we shall have\nreceived further lessons from that best oracle of wisdom, experience.\nIt at all times betrayed an ignorance of the true springs by which\nhuman conduct is actuated, and belied the original inducements to\nthe establishment of civil power. Why has government been\ninstituted at all? Because the passions of men will not conform to\nthe dictates of reason and justice, without constraint. Has it been\nfound that bodies of men act with more rectitude or greater\ndisinterestedness than individuals? The contrary of this has been\ninferred by all accurate observers of the conduct of mankind; and\nthe inference is founded upon obvious reasons. Regard to reputation\nhas a less active influence, when the infamy of a bad action is to\nbe divided among a number than when it is to fall singly upon one.\nA spirit of faction, which is apt to mingle its poison in the\ndeliberations of all bodies of men, will often hurry the persons of\nwhom they are composed into improprieties and excesses, for which\nthey would blush in a private capacity.\n\nIn addition to all this, there is, in the nature of sovereign\npower, an impatience of control, that disposes those who are\ninvested with the exercise of it, to look with an evil eye upon all\nexternal attempts to restrain or direct its operations. From this\nspirit it happens, that in every political association which is\nformed upon the principle of uniting in a common interest a number\nof lesser sovereignties, there will be found a kind of eccentric\ntendency in the subordinate or inferior orbs, by the operation of\nwhich there will be a perpetual effort in each to fly off from the\ncommon centre. This tendency is not difficult to be accounted for.\nIt has its origin in the love of power. Power controlled or\nabridged is almost always the rival and enemy of that power by which\nit is controlled or abridged. This simple proposition will teach us\nhow little reason there is to expect, that the persons intrusted\nwith the administration of the affairs of the particular members of\na confederacy will at all times be ready, with perfect good-humor,\nand an unbiased regard to the public weal, to execute the\nresolutions or decrees of the general authority. The reverse of\nthis results from the constitution of human nature.\n\nIf, therefore, the measures of the Confederacy cannot be\nexecuted without the intervention of the particular administrations,\nthere will be little prospect of their being executed at all. The\nrulers of the respective members, whether they have a constitutional\nright to do it or not, will undertake to judge of the propriety of\nthe measures themselves. They will consider the conformity of the\nthing proposed or required to their immediate interests or aims;\nthe momentary conveniences or inconveniences that would attend its\nadoption. All this will be done; and in a spirit of interested and\nsuspicious scrutiny, without that knowledge of national\ncircumstances and reasons of state, which is essential to a right\njudgment, and with that strong predilection in favor of local\nobjects, which can hardly fail to mislead the decision. The same\nprocess must be repeated in every member of which the body is\nconstituted; and the execution of the plans, framed by the councils\nof the whole, will always fluctuate on the discretion of the\nill-informed and prejudiced opinion of every part. Those who have\nbeen conversant in the proceedings of popular assemblies; who have\nseen how difficult it often is, where there is no exterior pressure\nof circumstances, to bring them to harmonious resolutions on\nimportant points, will readily conceive how impossible it must be to\ninduce a number of such assemblies, deliberating at a distance from\neach other, at different times, and under different impressions,\nlong to co-operate in the same views and pursuits.\n\nIn our case, the concurrence of thirteen distinct sovereign\nwills is requisite, under the Confederation, to the complete\nexecution of every important measure that proceeds from the Union.\nIt has happened as was to have been foreseen. The measures of the\nUnion have not been executed; the delinquencies of the States have,\nstep by step, matured themselves to an extreme, which has, at\nlength, arrested all the wheels of the national government, and\nbrought them to an awful stand. Congress at this time scarcely\npossess the means of keeping up the forms of administration, till\nthe States can have time to agree upon a more substantial substitute\nfor the present shadow of a federal government. Things did not come\nto this desperate extremity at once. The causes which have been\nspecified produced at first only unequal and disproportionate\ndegrees of compliance with the requisitions of the Union. The\ngreater deficiencies of some States furnished the pretext of example\nand the temptation of interest to the complying, or to the least\ndelinquent States. Why should we do more in proportion than those\nwho are embarked with us in the same political voyage? Why should\nwe consent to bear more than our proper share of the common burden?\nThese were suggestions which human selfishness could not withstand,\nand which even speculative men, who looked forward to remote\nconsequences, could not, without hesitation, combat. Each State,\nyielding to the persuasive voice of immediate interest or\nconvenience, has successively withdrawn its support, till the frail\nand tottering edifice seems ready to fall upon our heads, and to\ncrush us beneath its ruins.\n\nPUBLIUS.\n\n1. \"I mean for the Union.\"\n", "date": null, "title": "The Insufficiency of the Present Confederation to Preserve the Union", "paper_id": 15, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE tendency of the principle of legislation for States, or\ncommunities, in their political capacities, as it has been\nexemplified by the experiment we have made of it, is equally\nattested by the events which have befallen all other governments of\nthe confederate kind, of which we have any account, in exact\nproportion to its prevalence in those systems. The confirmations of\nthis fact will be worthy of a distinct and particular examination.\nI shall content myself with barely observing here, that of all the\nconfederacies of antiquity, which history has handed down to us, the\nLycian and Achaean leagues, as far as there remain vestiges of them,\nappear to have been most free from the fetters of that mistaken\nprinciple, and were accordingly those which have best deserved, and\nhave most liberally received, the applauding suffrages of political\nwriters.\n\nThis exceptionable principle may, as truly as emphatically, be\nstyled the parent of anarchy: It has been seen that delinquencies\nin the members of the Union are its natural and necessary offspring;\nand that whenever they happen, the only constitutional remedy is\nforce, and the immediate effect of the use of it, civil war.\n\nIt remains to inquire how far so odious an engine of government,\nin its application to us, would even be capable of answering its end.\nIf there should not be a large army constantly at the disposal of\nthe national government it would either not be able to employ force\nat all, or, when this could be done, it would amount to a war\nbetween parts of the Confederacy concerning the infractions of a\nleague, in which the strongest combination would be most likely to\nprevail, whether it consisted of those who supported or of those who\nresisted the general authority. It would rarely happen that the\ndelinquency to be redressed would be confined to a single member,\nand if there were more than one who had neglected their duty,\nsimilarity of situation would induce them to unite for common\ndefense. Independent of this motive of sympathy, if a large and\ninfluential State should happen to be the aggressing member, it\nwould commonly have weight enough with its neighbors to win over\nsome of them as associates to its cause. Specious arguments of\ndanger to the common liberty could easily be contrived; plausible\nexcuses for the deficiencies of the party could, without difficulty,\nbe invented to alarm the apprehensions, inflame the passions, and\nconciliate the good-will, even of those States which were not\nchargeable with any violation or omission of duty. This would be\nthe more likely to take place, as the delinquencies of the larger\nmembers might be expected sometimes to proceed from an ambitious\npremeditation in their rulers, with a view to getting rid of all\nexternal control upon their designs of personal aggrandizement; the\nbetter to effect which it is presumable they would tamper beforehand\nwith leading individuals in the adjacent States. If associates\ncould not be found at home, recourse would be had to the aid of\nforeign powers, who would seldom be disinclined to encouraging the\ndissensions of a Confederacy, from the firm union of which they had\nso much to fear. When the sword is once drawn, the passions of men\nobserve no bounds of moderation. The suggestions of wounded pride,\nthe instigations of irritated resentment, would be apt to carry the\nStates against which the arms of the Union were exerted, to any\nextremes necessary to avenge the affront or to avoid the disgrace of\nsubmission. The first war of this kind would probably terminate in\na dissolution of the Union.\n\nThis may be considered as the violent death of the Confederacy.\nIts more natural death is what we now seem to be on the point of\nexperiencing, if the federal system be not speedily renovated in a\nmore substantial form. It is not probable, considering the genius\nof this country, that the complying States would often be inclined\nto support the authority of the Union by engaging in a war against\nthe non-complying States. They would always be more ready to pursue\nthe milder course of putting themselves upon an equal footing with\nthe delinquent members by an imitation of their example. And the\nguilt of all would thus become the security of all. Our past\nexperience has exhibited the operation of this spirit in its full\nlight. There would, in fact, be an insuperable difficulty in\nascertaining when force could with propriety be employed. In the\narticle of pecuniary contribution, which would be the most usual\nsource of delinquency, it would often be impossible to decide\nwhether it had proceeded from disinclination or inability. The\npretense of the latter would always be at hand. And the case must\nbe very flagrant in which its fallacy could be detected with\nsufficient certainty to justify the harsh expedient of compulsion.\nIt is easy to see that this problem alone, as often as it should\noccur, would open a wide field for the exercise of factious views,\nof partiality, and of oppression, in the majority that happened to\nprevail in the national council.\n\nIt seems to require no pains to prove that the States ought not\nto prefer a national Constitution which could only be kept in motion\nby the instrumentality of a large army continually on foot to\nexecute the ordinary requisitions or decrees of the government. And\nyet this is the plain alternative involved by those who wish to deny\nit the power of extending its operations to individuals. Such a\nscheme, if practicable at all, would instantly degenerate into a\nmilitary despotism; but it will be found in every light\nimpracticable. The resources of the Union would not be equal to the\nmaintenance of an army considerable enough to confine the larger\nStates within the limits of their duty; nor would the means ever be\nfurnished of forming such an army in the first instance. Whoever\nconsiders the populousness and strength of several of these States\nsingly at the present juncture, and looks forward to what they will\nbecome, even at the distance of half a century, will at once dismiss\nas idle and visionary any scheme which aims at regulating their\nmovements by laws to operate upon them in their collective\ncapacities, and to be executed by a coercion applicable to them in\nthe same capacities. A project of this kind is little less romantic\nthan the monster-taming spirit which is attributed to the fabulous\nheroes and demi-gods of antiquity.\n\nEven in those confederacies which have been composed of members\nsmaller than many of our counties, the principle of legislation for\nsovereign States, supported by military coercion, has never been\nfound effectual. It has rarely been attempted to be employed, but\nagainst the weaker members; and in most instances attempts to\ncoerce the refractory and disobedient have been the signals of\nbloody wars, in which one half of the confederacy has displayed its\nbanners 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\nfederal government capable of regulating the common concerns and\npreserving the general tranquillity, it must be founded, as to the\nobjects committed to its care, upon the reverse of the principle\ncontended for by the opponents of the proposed Constitution. It\nmust carry its agency to the persons of the citizens. It must stand\nin need of no intermediate legislations; but must itself be\nempowered to employ the arm of the ordinary magistrate to execute\nits own resolutions. The majesty of the national authority must be\nmanifested through the medium of the courts of justice. The\ngovernment of the Union, like that of each State, must be able to\naddress itself immediately to the hopes and fears of individuals;\nand to attract to its support those passions which have the\nstrongest influence upon the human heart. It must, in short,\npossess all the means, and have aright to resort to all the methods,\nof executing the powers with which it is intrusted, that are\npossessed and exercised by the government of the particular States.\n\nTo this reasoning it may perhaps be objected, that if any State\nshould be disaffected to the authority of the Union, it could at any\ntime obstruct the execution of its laws, and bring the matter to the\nsame issue of force, with the necessity of which the opposite scheme\nis reproached.\n\nThe plausibility of this objection will vanish the moment we\nadvert to the essential difference between a mere NON-COMPLIANCE and\na DIRECT and ACTIVE RESISTANCE. If the interposition of the State\nlegislatures be necessary to give effect to a measure of the Union,\nthey have only NOT TO ACT, or to ACT EVASIVELY, and the measure is\ndefeated. This neglect of duty may be disguised under affected but\nunsubstantial provisions, so as not to appear, and of course not to\nexcite any alarm in the people for the safety of the Constitution.\nThe State leaders may even make a merit of their surreptitious\ninvasions of it on the ground of some temporary convenience,\nexemption, or advantage.\n\nBut if the execution of the laws of the national government\nshould not require the intervention of the State legislatures, if\nthey were to pass into immediate operation upon the citizens\nthemselves, the particular governments could not interrupt their\nprogress without an open and violent exertion of an unconstitutional\npower. No omissions nor evasions would answer the end. They would\nbe obliged to act, and in such a manner as would leave no doubt that\nthey had encroached on the national rights. An experiment of this\nnature would always be hazardous in the face of a constitution in\nany degree competent to its own defense, and of a people enlightened\nenough to distinguish between a legal exercise and an illegal\nusurpation of authority. The success of it would require not merely\na factious majority in the legislature, but the concurrence of the\ncourts of justice and of the body of the people. If the judges were\nnot embarked in a conspiracy with the legislature, they would\npronounce the resolutions of such a majority to be contrary to the\nsupreme law of the land, unconstitutional, and void. If the people\nwere not tainted with the spirit of their State representatives,\nthey, as the natural guardians of the Constitution, would throw\ntheir weight into the national scale and give it a decided\npreponderancy in the contest. Attempts of this kind would not often\nbe made with levity or rashness, because they could seldom be made\nwithout danger to the authors, unless in cases of a tyrannical\nexercise of the federal authority.\n\nIf opposition to the national government should arise from the\ndisorderly conduct of refractory or seditious individuals, it could\nbe overcome by the same means which are daily employed against the\nsame evil under the State governments. The magistracy, being\nequally the ministers of the law of the land, from whatever source\nit might emanate, would doubtless be as ready to guard the national\nas the local regulations from the inroads of private licentiousness.\nAs to those partial commotions and insurrections, which sometimes\ndisquiet society, from the intrigues of an inconsiderable faction,\nor from sudden or occasional illhumors that do not infect the great\nbody of the community the general government could command more\nextensive resources for the suppression of disturbances of that kind\nthan would be in the power of any single member. And as to those\nmortal feuds which, in certain conjunctures, spread a conflagration\nthrough a whole nation, or through a very large proportion of it,\nproceeding either from weighty causes of discontent given by the\ngovernment or from the contagion of some violent popular paroxysm,\nthey do not fall within any ordinary rules of calculation. When\nthey happen, they commonly amount to revolutions and dismemberments\nof empire. No form of government can always either avoid or control\nthem. It is in vain to hope to guard against events too mighty for\nhuman foresight or precaution, and it would be idle to object to a\ngovernment because it could not perform impossibilities.\n\nPUBLIUS.\n", "date": "Tuesday, December 4, 1787", "title": "The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)", "paper_id": 16, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nAN OBJECTION, of a nature different from that which has been\nstated and answered, in my last address, may perhaps be likewise\nurged against the principle of legislation for the individual\ncitizens of America. It may be said that it would tend to render\nthe government of the Union too powerful, and to enable it to absorb\nthose residuary authorities, which it might be judged proper to\nleave with the States for local purposes. Allowing the utmost\nlatitude to the love of power which any reasonable man can require,\nI confess I am at a loss to discover what temptation the persons\nintrusted with the administration of the general government could\never 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.\nCommerce, finance, negotiation, and war seem to comprehend all the\nobjects which have charms for minds governed by that passion; and\nall the powers necessary to those objects ought, in the first\ninstance, to be lodged in the national depository. The\nadministration of private justice between the citizens of the same\nState, the supervision of agriculture and of other concerns of a\nsimilar nature, all those things, in short, which are proper to be\nprovided for by local legislation, can never be desirable cares of a\ngeneral jurisdiction. It is therefore improbable that there should\nexist a disposition in the federal councils to usurp the powers with\nwhich they are connected; because the attempt to exercise those\npowers would be as troublesome as it would be nugatory; and the\npossession of them, for that reason, would contribute nothing to the\ndignity, to the importance, or to the splendor of the national\ngovernment.\n\nBut let it be admitted, for argument's sake, that mere\nwantonness and lust of domination would be sufficient to beget that\ndisposition; still it may be safely affirmed, that the sense of the\nconstituent body of the national representatives, or, in other\nwords, the people of the several States, would control the\nindulgence of so extravagant an appetite. It will always be far\nmore easy for the State governments to encroach upon the national\nauthorities than for the national government to encroach upon the\nState authorities. The proof of this proposition turns upon the\ngreater degree of influence which the State governments if they\nadminister their affairs with uprightness and prudence, will\ngenerally possess over the people; a circumstance which at the same\ntime teaches us that there is an inherent and intrinsic weakness in\nall federal constitutions; and that too much pains cannot be taken\nin their organization, to give them all the force which is\ncompatible with the principles of liberty.\n\nThe superiority of influence in favor of the particular\ngovernments would result partly from the diffusive construction of\nthe national government, but chiefly from the nature of the objects\nto which the attention of the State administrations would be\ndirected.\n\nIt is a known fact in human nature, that its affections are\ncommonly weak in proportion to the distance or diffusiveness of the\nobject. Upon the same principle that a man is more attached to his\nfamily than to his neighborhood, to his neighborhood than to the\ncommunity at large, the people of each State would be apt to feel a\nstronger bias towards their local governments than towards the\ngovernment of the Union; unless the force of that principle should\nbe destroyed by a much better administration 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\nfall under the superintendence of the local administrations, and\nwhich will form so many rivulets of influence, running through every\npart of the society, cannot be particularized, without involving a\ndetail too tedious and uninteresting to compensate for the\ninstruction it might afford.\n\nThere is one transcendant advantage belonging to the province of\nthe State governments, which alone suffices to place the matter in a\nclear and satisfactory light,--I mean the ordinary administration of\ncriminal and civil justice. This, of all others, is the most\npowerful, most universal, and most attractive source of popular\nobedience and attachment. It is that which, being the immediate and\nvisible guardian of life and property, having its benefits and its\nterrors in constant activity before the public eye, regulating all\nthose personal interests and familiar concerns to which the\nsensibility of individuals is more immediately awake, contributes,\nmore than any other circumstance, to impressing upon the minds of\nthe people, affection, esteem, and reverence towards the government.\nThis great cement of society, which will diffuse itself almost\nwholly through the channels of the particular governments,\nindependent of all other causes of influence, would insure them so\ndecided an empire over their respective citizens as to render them\nat 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,\nfalling less immediately under the observation of the mass of the\ncitizens, the benefits derived from it will chiefly be perceived and\nattended to by speculative men. Relating to more general interests,\nthey will be less apt to come home to the feelings of the people;\nand, in proportion, less likely to inspire an habitual sense of\nobligation, and an active sentiment of attachment.\n\nThe reasoning on this head has been abundantly exemplified by\nthe experience of all federal constitutions with which we are\nacquainted, and of all others which have borne the least analogy to\nthem.\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,\nwhose authority extended over the whole nation; and a number of\nsubordinate vassals, or feudatories, who had large portions of land\nallotted to them, and numerous trains of INFERIOR vassals or\nretainers, who occupied and cultivated that land upon the tenure of\nfealty or obedience, to the persons of whom they held it. Each\nprincipal vassal was a kind of sovereign, within his particular\ndemesnes. The consequences of this situation were a continual\nopposition to authority of the sovereign, and frequent wars between\nthe great barons or chief feudatories themselves. The power of the\nhead of the nation was commonly too weak, either to preserve the\npublic peace, or to protect the people against the oppressions of\ntheir 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\ntemper and of superior abilities, he would acquire a personal weight\nand influence, which answered, for the time, the purpose of a more\nregular authority. But in general, the power of the barons\ntriumphed over that of the prince; and in many instances his\ndominion was entirely thrown off, and the great fiefs were erected\ninto independent principalities or States. In those instances in\nwhich the monarch finally prevailed over his vassals, his success\nwas chiefly owing to the tyranny of those vassals over their\ndependents. The barons, or nobles, equally the enemies of the\nsovereign and the oppressors of the common people, were dreaded and\ndetested by both; till mutual danger and mutual interest effected a\nunion between them fatal to the power of the aristocracy. Had the\nnobles, by a conduct of clemency and justice, preserved the fidelity\nand devotion of their retainers and followers, the contests between\nthem and the prince must almost always have ended in their favor,\nand in the abridgment or subversion of the royal authority.\n\nThis is not an assertion founded merely in speculation or\nconjecture. Among other illustrations of its truth which might be\ncited, Scotland will furnish a cogent example. The spirit of\nclanship which was, at an early day, introduced into that kingdom,\nuniting the nobles and their dependants by ties equivalent to those\nof kindred, rendered the aristocracy a constant overmatch for the\npower of the monarch, till the incorporation with England subdued\nits fierce and ungovernable spirit, and reduced it within those\nrules of subordination which a more rational and more energetic\nsystem of civil polity had previously established in the latter\nkingdom.\n\nThe separate governments in a confederacy may aptly be compared\nwith the feudal baronies; with this advantage in their favor, that\nfrom the reasons already explained, they will generally possess the\nconfidence and good-will of the people, and with so important a\nsupport, will be able effectually to oppose all encroachments of the\nnational government. It will be well if they are not able to\ncounteract its legitimate and necessary authority. The points of\nsimilitude consist in the rivalship of power, applicable to both,\nand in the CONCENTRATION of large portions of the strength of the\ncommunity into particular DEPOSITS, in one case at the disposal of\nindividuals, in the other case at the disposal of 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.\nThis review shall form the subject of some ensuing papers.\n\nPUBLIUS.\n", "date": null, "title": "The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)", "paper_id": 17, "venue": "For the Independent Journal"}
{"author": "HAMILTON AND MADISON", "text": "To the People of the State of New York:\n\nAMONG the confederacies of antiquity, the most considerable was\nthat of the Grecian republics, associated under the Amphictyonic\ncouncil. From the best accounts transmitted of this celebrated\ninstitution, it bore a very instructive analogy to the present\nConfederation of the American States.\n\nThe members retained the character of independent and sovereign\nstates, and had equal votes in the federal council. This council\nhad a general authority to propose and resolve whatever it judged\nnecessary for the common welfare of Greece; to declare and carry on\nwar; to decide, in the last resort, all controversies between the\nmembers; to fine the aggressing party; to employ the whole force\nof the confederacy against the disobedient; to admit new members.\nThe Amphictyons were the guardians of religion, and of the immense\nriches belonging to the temple of Delphos, where they had the right\nof jurisdiction in controversies between the inhabitants and those\nwho came to consult the oracle. As a further provision for the\nefficacy of the federal powers, they took an oath mutually to defend\nand protect the united cities, to punish the violators of this oath,\nand to inflict vengeance on sacrilegious despoilers 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.\nThe Amphictyons had in their hands the superstition of the times,\none of the principal engines by which government was then\nmaintained; they had a declared authority to use coercion against\nrefractory cities, and were bound by oath to exert this authority on\nthe necessary occasions.\n\nVery different, nevertheless, was the experiment from the theory.\nThe powers, like those of the present Congress, were administered\nby deputies appointed wholly by the cities in their political\ncapacities; and exercised over them in the same capacities. Hence\nthe weakness, the disorders, and finally the destruction of the\nconfederacy. The more powerful members, instead of being kept in\nawe and subordination, tyrannized successively over all the rest.\nAthens, as we learn from Demosthenes, was the arbiter of Greece\nseventy-three years. The Lacedaemonians next governed it\ntwenty-nine years; at a subsequent period, after the battle of\nLeuctra, the Thebans had their turn of domination.\n\nIt happened but too often, according to Plutarch, that the\ndeputies of the strongest cities awed and corrupted those of the\nweaker; and that judgment went in favor of the most powerful party.\n\nEven in the midst of defensive and dangerous wars with Persia\nand Macedon, the members never acted in concert, and were, more or\nfewer of them, eternally the dupes or the hirelings of the common\nenemy. The intervals of foreign war were filled up by domestic\nvicissitudes convulsions, 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\npartisans by such a measure than themselves, and would become\nmasters of the public deliberations, vigorously opposed and defeated\nthe attempt. This piece of history proves at once the inefficiency\nof the union, the ambition and jealousy of its most powerful\nmembers, and the dependent and degraded condition of the rest. The\nsmaller members, though entitled by the theory of their system to\nrevolve in equal pride and majesty around the common center, had\nbecome, in fact, satellites of the orbs of primary 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,\nAthens and Sparta, inflated with the victories and the glory they\nhad acquired, became first rivals and then enemies; and did each\nother infinitely more mischief than they had suffered from Xerxes.\nTheir mutual jealousies, fears, hatreds, and injuries ended in the\ncelebrated Peloponnesian war; which itself ended in the ruin and\nslavery of the Athenians who had begun it.\n\nAs a weak government, when not at war, is ever agitated by\ninternal dissentions, so these never fail to bring on fresh\ncalamities from abroad. The Phocians having ploughed up some\nconsecrated ground belonging to the temple of Apollo, the\nAmphictyonic council, according to the superstition of the age,\nimposed a fine on the sacrilegious offenders. The Phocians, being\nabetted by Athens and Sparta, refused to submit to the decree. The\nThebans, with others of the cities, undertook to maintain the\nauthority of the Amphictyons, and to avenge the violated god. The\nlatter, being the weaker party, invited the assistance of Philip of\nMacedon, 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\ntheir influence and votes, gained admission into the Amphictyonic\ncouncil; and by his arts and his arms, made himself master of the\nconfederacy.\n\nSuch were the consequences of the fallacious principle on which\nthis interesting establishment was founded. Had Greece, says a\njudicious observer on her fate, been united by a stricter\nconfederation, and persevered in her union, she would never have\nworn the chains of Macedon; and might have proved a barrier to the\nvast projects of Rome.\n\nThe Achaean league, as it is called, was another society of\nGrecian republics, which supplies us with valuable instruction.\n\nThe Union here was far more intimate, and its organization much\nwiser, than in the preceding instance. It will accordingly appear,\nthat though not exempt from a similar catastrophe, it by no means\nequally deserved it.\n\nThe cities composing this league retained their municipal\njurisdiction, appointed their own officers, and enjoyed a perfect\nequality. The senate, in which they were represented, had the sole\nand exclusive right of peace and war; of sending and receiving\nambassadors; of entering into treaties and alliances; of\nappointing a chief magistrate or praetor, as he was called, who\ncommanded their armies, and who, with the advice and consent of ten\nof the senators, not only administered the government in the recess\nof the senate, but had a great share in its deliberations, when\nassembled. According to the primitive constitution, there were two\npraetors associated in the administration; but on trial a single\none was preferred.\n\nIt appears that the cities had all the same laws and customs,\nthe same weights and measures, and the same money. But how far this\neffect proceeded from the authority of the federal council is left\nin uncertainty. It is said only that the cities were in a manner\ncompelled to receive the same laws and usages. When Lacedaemon was\nbrought into the league by Philopoemen, it was attended with an\nabolition of the institutions and laws of Lycurgus, and an adoption\nof those of the Achaeans. The Amphictyonic confederacy, of which\nshe had been a member, left her in the full exercise of her\ngovernment and her legislation. This circumstance alone proves a\nvery material difference in the genius of the two systems.\n\nIt is much to be regretted that such imperfect monuments remain\nof this curious political fabric. Could its interior structure and\nregular operation be ascertained, it is probable that more light\nwould be thrown by it on the science of federal government, than by\nany of the like experiments with which we are acquainted.\n\nOne important fact seems to be witnessed by all the historians\nwho take notice of Achaean affairs. It is, that as well after the\nrenovation of the league by Aratus, as before its dissolution by the\narts of Macedon, there was infinitely more of moderation and justice\nin the administration of its government, and less of violence and\nsedition in the people, than were to be found in any of the cities\nexercising SINGLY all the prerogatives of sovereignty. The Abbe\nMably, in his observations on Greece, says that the popular\ngovernment, which was so tempestuous elsewhere, caused no disorders\nin the members of the Achaean republic, BECAUSE IT WAS THERE\nTEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.\n\nWe are not to conclude too hastily, however, that faction did\nnot, in a certain degree, agitate the particular cities; much less\nthat a due subordination and harmony reigned in the general system.\nThe contrary is sufficiently displayed in the vicissitudes and fate\nof the republic.\n\nWhilst the Amphictyonic confederacy remained, that of the\nAchaeans, which comprehended the less important cities only, made\nlittle figure on the theatre of Greece. When the former became a\nvictim to Macedon, the latter was spared by the policy of Philip and\nAlexander. Under the successors of these princes, however, a\ndifferent policy prevailed. The arts of division were practiced\namong the Achaeans. Each city was seduced into a separate interest;\nthe union was dissolved. Some of the cities fell under the tyranny\nof Macedonian garrisons; others under that of usurpers springing\nout of their own confusions. Shame and oppression erelong awaken\ntheir love of liberty. A few cities reunited. Their example was\nfollowed by others, as opportunities were found of cutting off their\ntyrants. The league soon embraced almost the whole Peloponnesus.\nMacedon saw its progress; but was hindered by internal dissensions\nfrom stopping it. All Greece caught the enthusiasm and seemed ready\nto unite in one confederacy, when the jealousy and envy in Sparta\nand Athens, of the rising glory of the Achaeans, threw a fatal damp\non the enterprise. The dread of the Macedonian power induced the\nleague to court the alliance of the Kings of Egypt and Syria, who,\nas successors of Alexander, were rivals of the king of Macedon.\nThis policy was defeated by Cleomenes, king of Sparta, who was led\nby his ambition to make an unprovoked attack on his neighbors, the\nAchaeans, and who, as an enemy to Macedon, had interest enough with\nthe Egyptian and Syrian princes to effect a breach of their\nengagements with the league.\n\nThe Achaeans were now reduced to the dilemma of submitting to\nCleomenes, or of supplicating the aid of Macedon, its former\noppressor. The latter expedient was adopted. The contests of the\nGreeks always afforded a pleasing opportunity to that powerful\nneighbor of intermeddling in their affairs. A Macedonian army\nquickly appeared. Cleomenes was vanquished. The Achaeans soon\nexperienced, as often happens, that a victorious and powerful ally\nis but another name for a master. All that their most abject\ncompliances could obtain from him was a toleration of the exercise\nof their laws. Philip, who was now on the throne of Macedon, soon\nprovoked by his tyrannies, fresh combinations among the Greeks. The\nAchaeans, though weakened by internal dissensions and by the\nrevolt of Messene, one of its members, being joined by the AEtolians\nand Athenians, erected the standard of opposition. Finding\nthemselves, though thus supported, unequal to the undertaking, they\nonce more had recourse to the dangerous expedient of introducing the\nsuccor of foreign arms. The Romans, to whom the invitation was\nmade, eagerly embraced it. Philip was conquered; Macedon subdued.\nA new crisis ensued to the league. Dissensions broke out among it\nmembers. These the Romans fostered. Callicrates and other popular\nleaders became mercenary instruments for inveigling their countrymen.\nThe more effectually to nourish discord and disorder the Romans\nhad, to the astonishment of those who confided in their sincerity,\nalready proclaimed universal liberty [1] throughout Greece. With\nthe same insidious views, they now seduced the members from the\nleague, by representing to their pride the violation it committed on\ntheir sovereignty. By these arts this union, the last hope of\nGreece, the last hope of ancient liberty, was torn into pieces; and\nsuch imbecility and distraction introduced, that the arms of Rome\nfound little difficulty in completing the ruin which their arts had\ncommenced. 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\nimportant portion of history; both because it teaches more than one\nlesson, and because, as a supplement to the outlines of the Achaean\nconstitution, it emphatically illustrates the tendency of federal\nbodies rather to anarchy among the members, than to tyranny in the\nhead.\n\nPUBLIUS.\n\n1. This was but another name more specious for the independence\nof the members on the federal head.\n", "date": null, "title": "The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)", "paper_id": 18, "venue": "For the Independent Journal"}
{"author": "HAMILTON AND MADISON", "text": "To the People of the State of New York:\n\nTHE examples of ancient confederacies, cited in my last paper,\nhave not exhausted the source of experimental instruction on this\nsubject. There are existing institutions, founded on a similar\nprinciple, which merit particular consideration. The first which\npresents itself is the Germanic 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\nhas taken its name from them. In the ninth century Charlemagne, its\nwarlike monarch, carried his victorious arms in every direction;\nand Germany became a part of his vast dominions. On the\ndismemberment, which took place under his sons, this part was\nerected into a separate and independent empire. Charlemagne and his\nimmediate descendants possessed the reality, as well as the ensigns\nand dignity of imperial power. But the principal vassals, whose\nfiefs had become hereditary, and who composed the national diets\nwhich Charlemagne had not abolished, gradually threw off the yoke\nand advanced to sovereign jurisdiction and independence. The force\nof imperial sovereignty was insufficient to restrain such powerful\ndependants; or to preserve the unity and tranquillity of the empire.\nThe most furious private wars, accompanied with every species of\ncalamity, were carried on between the different princes and states.\nThe imperial authority, unable to maintain the public order,\ndeclined by degrees till it was almost extinct in the anarchy, which\nagitated the long interval between the death of the last emperor of\nthe Suabian, and the accession of the first emperor of the Austrian\nlines. In the eleventh century the emperors enjoyed full\nsovereignty: In the fifteenth they had little more than the symbols\nand decorations of power.\n\nOut of this feudal system, which has itself many of the\nimportant features of a confederacy, has grown the federal system\nwhich constitutes the Germanic empire. Its powers are vested in a\ndiet representing the component members of the confederacy; in the\nemperor, who is the executive magistrate, with a negative on the\ndecrees of the diet; and in the imperial chamber and the aulic\ncouncil, two judiciary tribunals having supreme jurisdiction in\ncontroversies which concern the empire, or which happen among its\nmembers.\n\nThe diet possesses the general power of legislating for the\nempire; of making war and peace; contracting alliances; assessing\nquotas of troops and money; constructing fortresses; regulating\ncoin; admitting new members; and subjecting disobedient members to\nthe ban of the empire, by which the party is degraded from his\nsovereign rights and his possessions forfeited. The members of the\nconfederacy are expressly restricted from entering into compacts\nprejudicial to the empire; from imposing tolls and duties on their\nmutual intercourse, without the consent of the emperor and diet;\nfrom altering the value of money; from doing injustice to one\nanother; or from affording assistance or retreat to disturbers of\nthe public peace. And the ban is denounced against such as shall\nviolate any of these restrictions. The members of the diet, as\nsuch, are subject in all cases to be judged by the emperor and diet,\nand in their private capacities by the aulic council and imperial\nchamber.\n\nThe prerogatives of the emperor are numerous. The most\nimportant of them are: his exclusive right to make propositions to\nthe diet; to negative its resolutions; to name ambassadors; to\nconfer dignities and titles; to fill vacant electorates; to found\nuniversities; to grant privileges not injurious to the states of\nthe empire; to receive and apply the public revenues; and\ngenerally to watch over the public safety. In certain cases, the\nelectors form a council to him. In quality of emperor, he possesses\nno territory within the empire, nor receives any revenue for his\nsupport. 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\nrepresentatives and head of this confederacy, the natural\nsupposition would be, that it must form an exception to the general\ncharacter which belongs to its kindred systems. Nothing would be\nfurther from the reality. The fundamental principle on which it\nrests, that the empire is a community of sovereigns, that the diet\nis a representation of sovereigns and that the laws are addressed to\nsovereigns, renders the empire a nerveless body, incapable of\nregulating its own members, insecure against external dangers, and\nagitated with unceasing fermentations in its own bowels.\n\nThe history of Germany is a history of wars between the emperor\nand the princes and states; of wars among the princes and states\nthemselves; of the licentiousness of the strong, and the oppression\nof the weak; of foreign intrusions, and foreign intrigues; of\nrequisitions of men and money disregarded, or partially complied\nwith; of attempts to enforce them, altogether abortive, or attended\nwith slaughter and desolation, involving the innocent with the\nguilty; of general inbecility, confusion, and misery.\n\nIn the sixteenth century, the emperor, with one part of the\nempire on his side, was seen engaged against the other princes and\nstates. In one of the conflicts, the emperor himself was put to\nflight, and very near being made prisoner by the elector of Saxony.\nThe late king of Prussia was more than once pitted against his\nimperial sovereign; and commonly proved an overmatch for him.\nControversies and wars among the members themselves have been so\ncommon, that the German annals are crowded with the bloody pages\nwhich describe them. Previous to the peace of Westphalia, Germany\nwas desolated by a war of thirty years, in which the emperor, with\none half of the empire, was on one side, and Sweden, with the other\nhalf, on the opposite side. Peace was at length negotiated, and\ndictated 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\nthe necessity of self-defense, its situation is still deplorable.\nMilitary preparations must be preceded by so many tedious\ndiscussions, arising from the jealousies, pride, separate views, and\nclashing pretensions of sovereign bodies, that before the diet can\nsettle the arrangements, the enemy are in the field; and before the\nfederal troops are ready to take it, are retiring into winter\nquarters.\n\nThe small body of national troops, which has been judged\nnecessary in time of peace, is defectively kept up, badly paid,\ninfected with local prejudices, and supported by irregular and\ndisproportionate contributions to the treasury.\n\nThe impossibility of maintaining order and dispensing justice\namong these sovereign subjects, produced the experiment of dividing\nthe empire into nine or ten circles or districts; of giving them an\ninterior organization, and of charging them with the military\nexecution of the laws against delinquent and contumacious members.\nThis experiment has only served to demonstrate more fully the\nradical vice of the constitution. Each circle is the miniature\npicture of the deformities of this political monster. They either\nfail to execute their commissions, or they do it with all the\ndevastation and carnage of civil war. Sometimes whole circles are\ndefaulters; and then they increase the mischief which they were\ninstituted to remedy.\n\nWe may form some judgment of this scheme of military coercion\nfrom a sample given by Thuanus. In Donawerth, a free and imperial\ncity of the circle of Suabia, the Abb 300 de St. Croix enjoyed\ncertain immunities which had been reserved to him. In the exercise\nof these, on some public occasions, outrages were committed on him\nby the people of the city. The consequence was that the city was\nput under the ban of the empire, and the Duke of Bavaria, though\ndirector of another circle, obtained an appointment to enforce it.\nHe soon appeared before the city with a corps of ten thousand\ntroops, and finding it a fit occasion, as he had secretly intended\nfrom the beginning, to revive an antiquated claim, on the pretext\nthat his ancestors had suffered the place to be dismembered from his\nterritory, [1] he took possession of it in his own name, disarmed,\nand punished the inhabitants, and reannexed the city to his domains.\n\nIt may be asked, perhaps, what has so long kept this disjointed\nmachine from falling entirely to pieces? The answer is obvious:\nThe weakness of most of the members, who are unwilling to expose\nthemselves to the mercy of foreign powers; the weakness of most of\nthe principal members, compared with the formidable powers all\naround them; the vast weight and influence which the emperor\nderives from his separate and heriditary dominions; and the\ninterest he feels in preserving a system with which his family pride\nis connected, and which constitutes him the first prince in Europe;\n--these causes support a feeble and precarious Union; whilst the\nrepellant quality, incident to the nature of sovereignty, and which\ntime continually strengthens, prevents any reform whatever, founded\non a proper consolidation. Nor is it to be imagined, if this\nobstacle could be surmounted, that the neighboring powers would\nsuffer a revolution to take place which would give to the empire the\nforce and preeminence to which it is entitled. Foreign nations have\nlong considered themselves as interested in the changes made by\nevents in this constitution; and have, on various occasions,\nbetrayed their policy of perpetuating its anarchy and weakness.\n\nIf more direct examples were wanting, Poland, as a government\nover local sovereigns, might not improperly be taken notice of. Nor\ncould any proof more striking be given of the calamities flowing\nfrom such institutions. Equally unfit for self-government and\nself-defense, it has long been at the mercy of its powerful\nneighbors; who have lately had the mercy to disburden it of one\nthird 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\ncommon coin; no common judicatory; nor any other common mark of\nsovereignty.\n\nThey are kept together by the peculiarity of their topographical\nposition; by their individual weakness and insignificancy; by the\nfear of powerful neighbors, to one of which they were formerly\nsubject; by the few sources of contention among a people of such\nsimple and homogeneous manners; by their joint interest in their\ndependent possessions; by the mutual aid they stand in need of, for\nsuppressing insurrections and rebellions, an aid expressly\nstipulated and often required and afforded; and by the necessity of\nsome regular and permanent provision for accomodating disputes among\nthe cantons. The provision is, that the parties at variance shall\neach choose four judges out of the neutral cantons, who, in case of\ndisagreement, choose an umpire. This tribunal, under an oath of\nimpartiality, pronounces definitive sentence, which all the cantons\nare bound to enforce. The competency of this regulation may be\nestimated by a clause in their treaty of 1683, with Victor Amadeus\nof Savoy; in which he obliges himself to interpose as mediator in\ndisputes between the cantons, and to employ force, if necessary,\nagainst the contumacious party.\n\nSo far as the peculiarity of their case will admit of comparison\nwith that of the United States, it serves to confirm the principle\nintended to be established. Whatever efficacy the union may have\nhad in ordinary cases, it appears that the moment a cause of\ndifference sprang up, capable of trying its strength, it failed.\nThe controversies on the subject of religion, which in three\ninstances have kindled violent and bloody contests, may be said, in\nfact, to have severed the league. The Protestant and Catholic\ncantons have since had their separate diets, where all the most\nimportant concerns are adjusted, and which have left the general\ndiet little other business than to take care of the common bailages.\n\nThat separation had another consequence, which merits attention.\nIt produced opposite alliances with foreign powers: of Berne, at\nthe head of the Protestant association, with the United Provinces;\nand of Luzerne, at the head of the Catholic association, with\nFrance.\n\nPUBLIUS.\n\n1. Pfeffel, \"Nouvel Abreg. Chronol. de l'Hist., etc.,\nd'Allemagne,\" says the pretext was to indemnify himself for the\nexpense of the expedition.\n", "date": null, "title": "The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)", "paper_id": 19, "venue": "For the Independent Journal"}
{"author": "HAMILTON AND MADISON", "text": "To the People of the State of New York:\n\nTHE United Netherlands are a confederacy of republics, or rather\nof aristocracies of a very remarkable texture, yet confirming all\nthe lessons derived from those which we have already reviewed.\n\nThe union is composed of seven coequal and sovereign states, and\neach state or province is a composition of equal and independent\ncities. In all important cases, not only the provinces but the\ncities must be unanimous.\n\nThe sovereignty of the Union is represented by the\nStates-General, consisting usually of about fifty deputies appointed\nby the provinces. They hold their seats, some for life, some for\nsix, three, and one years; from two provinces they continue in\nappointment during pleasure.\n\nThe States-General have authority to enter into treaties and\nalliances; to make war and peace; to raise armies and equip\nfleets; to ascertain quotas and demand contributions. In all these\ncases, however, unanimity and the sanction of their constituents are\nrequisite. They have authority to appoint and receive ambassadors;\nto execute treaties and alliances already formed; to provide for\nthe collection of duties on imports and exports; to regulate the\nmint, with a saving to the provincial rights; to govern as\nsovereigns the dependent territories. The provinces are restrained,\nunless with the general consent, from entering into foreign\ntreaties; from establishing imposts injurious to others, or\ncharging their neighbors with higher duties than their own subjects.\nA council of state, a chamber of accounts, with five colleges of\nadmiralty, aid and fortify the federal administration.\n\nThe executive magistrate of the union is the stadtholder, who is\nnow an hereditary prince. His principal weight and influence in the\nrepublic are derived from this independent title; from his great\npatrimonial estates; from his family connections with some of the\nchief potentates of Europe; and, more than all, perhaps, from his\nbeing stadtholder in the several provinces, as well as for the\nunion; in which provincial quality he has the appointment of town\nmagistrates under certain regulations, executes provincial decrees,\npresides when he pleases in the provincial tribunals, and has\nthroughout the power of pardon.\n\nAs stadtholder of the union, he has, however, considerable\nprerogatives.\n\nIn his political capacity he has authority to settle disputes\nbetween the provinces, when other methods fail; to assist at the\ndeliberations of the States-General, and at their particular\nconferences; to give audiences to foreign ambassadors, and to keep\nagents for his particular affairs at foreign courts.\n\nIn his military capacity he commands the federal troops,\nprovides for garrisons, and in general regulates military affairs;\ndisposes of all appointments, from colonels to ensigns, and of the\ngovernments and posts of fortified towns.\n\nIn his marine capacity he is admiral-general, and superintends\nand directs every thing relative to naval forces and other naval\naffairs; presides in the admiralties in person or by proxy;\nappoints lieutenant-admirals and other officers; and establishes\ncouncils of war, whose sentences are not executed till he approves\nthem.\n\nHis revenue, exclusive of his private income, amounts to three\nhundred thousand florins. The standing army which he commands\nconsists of about forty thousand men.\n\nSuch is the nature of the celebrated Belgic confederacy, as\ndelineated on parchment. What are the characters which practice has\nstamped upon it? Imbecility in the government; discord among the\nprovinces; foreign influence and indignities; a precarious\nexistence in peace, and peculiar calamities from war.\n\nIt was long ago remarked by Grotius, that nothing but the hatred\nof his countrymen to the house of Austria kept them from being\nruined by the vices of their constitution.\n\nThe union of Utrecht, says another respectable writer, reposes\nan authority in the States-General, seemingly sufficient to secure\nharmony, but the jealousy in each province renders the practice very\ndifferent from the theory.\n\nThe same instrument, says another, obliges each province to levy\ncertain contributions; but this article never could, and probably\nnever will, be executed; because the inland provinces, who have\nlittle commerce, cannot pay an equal quota.\n\nIn matters of contribution, it is the practice to waive the\narticles of the constitution. The danger of delay obliges the\nconsenting provinces to furnish their quotas, without waiting for\nthe others; and then to obtain reimbursement from the others, by\ndeputations, which are frequent, or otherwise, as they can. The\ngreat wealth and influence of the province of Holland enable her to\neffect 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\npracticable, though dreadful, in a confedracy where one of the\nmembers exceeds in force all the rest, and where several of them are\ntoo small to meditate resistance; but utterly impracticable in one\ncomposed of members, several of which are equal to each other in\nstrength and resources, and equal singly to a vigorous and\npersevering defense.\n\nForeign ministers, says Sir William Temple, who was himself a\nforeign minister, elude matters taken ad referendum, by\ntampering with the provinces and cities. In 1726, the treaty of\nHanover was delayed by these means a whole year. Instances of a\nlike nature are numerous and notorious.\n\nIn critical emergencies, the States-General are often compelled\nto overleap their constitutional bounds. In 1688, they concluded a\ntreaty of themselves at the risk of their heads. The treaty of\nWestphalia, in 1648, by which their independence was formerly and\nfinally recognized, was concluded without the consent of Zealand.\nEven as recently as the last treaty of peace with Great Britain,\nthe constitutional principle of unanimity was departed from. A weak\nconstitution must necessarily terminate in dissolution, for want of\nproper powers, or the usurpation of powers requisite for the public\nsafety. Whether the usurpation, when once begun, will stop at the\nsalutary point, or go forward to the dangerous extreme, must depend\non the contingencies of the moment. Tyranny has perhaps oftener\ngrown out of the assumptions of power, called for, on pressing\nexigencies, by a defective constitution, than out of the full\nexercise of the largest constitutional authorities.\n\nNotwithstanding the calamities produced by the stadtholdership,\nit has been supposed that without his influence in the individual\nprovinces, the causes of anarchy manifest in the confederacy would\nlong ago have dissolved it. \"Under such a government,\" says the\nAbbe Mably, \"the Union could never have subsisted, if the provinces\nhad not a spring within themselves, capable of quickening their\ntardiness, and compelling them to the same way of thinking. This\nspring is the stadtholder.\" It is remarked by Sir William Temple,\n\"that in the intermissions of the stadtholdership, Holland, by her\nriches and her authority, which drew the others into a sort of\ndependence, supplied the place.\"\n\nThese are not the only circumstances which have controlled the\ntendency to anarchy and dissolution. The surrounding powers impose\nan absolute necessity of union to a certain degree, at the same time\nthat they nourish by their intrigues the constitutional vices which\nkeep the republic in some degree always at their mercy.\n\nThe true patriots have long bewailed the fatal tendency of these\nvices, and have made no less than four regular experiments by\nEXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply\na remedy. As many times has their laudable zeal found it impossible\nto UNITE THE PUBLIC COUNCILS in reforming the known, the\nacknowledged, the fatal evils of the existing constitution. Let us\npause, my fellow-citizens, for one moment, over this melancholy and\nmonitory lesson of history; and with the tear that drops for the\ncalamities brought on mankind by their adverse opinions and selfish\npassions, let our gratitude mingle an ejaculation to Heaven, for the\npropitious concord which has distinguished the consultations for our\npolitical happiness.\n\nA design was also conceived of establishing a general tax to be\nadministered by the federal authority. This also had its\nadversaries and failed.\n\nThis unhappy people seem to be now suffering from popular\nconvulsions, from dissensions among the states, and from the actual\ninvasion of foreign arms, the crisis of their destiny. All nations\nhave their eyes fixed on the awful spectacle. The first wish\nprompted by humanity is, that this severe trial may issue in such a\nrevolution of their government as will establish their union, and\nrender it the parent of tranquillity, freedom and happiness: The\nnext, that the asylum under which, we trust, the enjoyment of these\nblessings will speedily be secured in this country, may receive and\nconsole them for the catastrophe of their own.\n\nI make no apology for having dwelt so long on the contemplation\nof these federal precedents. Experience is the oracle of truth;\nand where its responses are unequivocal, they ought to be\nconclusive and sacred. The important truth, which it unequivocally\npronounces in the present case, is that a sovereignty over\nsovereigns, a government over governments, a legislation for\ncommunities, as contradistinguished from individuals, as it is a\nsolecism in theory, so in practice it is subversive of the order and\nends of civil polity, by substituting VIOLENCE in place of LAW, or\nthe destructive COERCION of the SWORD in place of the mild and\nsalutary COERCION of the MAGISTRACY.\n\nPUBLIUS.\n", "date": "Tuesday, December 11, 1787", "title": "The Same Subject Continued (The Insufficiency of the Present Confederation to Preserve the Union)", "paper_id": 20, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nHAVING in the three last numbers taken a summary review of the\nprincipal circumstances and events which have depicted the genius\nand fate of other confederate governments, I shall now proceed in\nthe enumeration of the most important of those defects which have\nhitherto disappointed our hopes from the system established among\nourselves. To form a safe and satisfactory judgment of the proper\nremedy, it is absolutely necessary that we should be well acquainted\nwith the extent and malignity of the disease.\n\nThe next most palpable defect of the subsisting Confederation,\nis the total want of a SANCTION to its laws. The United States, as\nnow composed, have no powers to exact obedience, or punish\ndisobedience to their resolutions, either by pecuniary mulcts, by a\nsuspension or divestiture of privileges, or by any other\nconstitutional mode. There is no express delegation of authority to\nthem to use force against delinquent members; and if such a right\nshould be ascribed to the federal head, as resulting from the nature\nof the social compact between the States, it must be by inference\nand construction, in the face of that part of the second article, by\nwhich it is declared, \"that each State shall retain every power,\njurisdiction, and right, not EXPRESSLY delegated to the United\nStates in Congress assembled.\" There is, doubtless, a striking\nabsurdity in supposing that a right of this kind does not exist, but\nwe are reduced to the dilemma either of embracing that supposition,\npreposterous as it may seem, or of contravening or explaining away a\nprovision, which has been of late a repeated theme of the eulogies\nof those who oppose the new Constitution; and the want of which, in\nthat plan, has been the subject of much plausible animadversion, and\nsevere criticism. If we are unwilling to impair the force of this\napplauded provision, we shall be obliged to conclude, that the\nUnited 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\nhave been cited, that the American Confederacy, in this particular,\nstands discriminated from every other institution of a similar kind,\nand exhibits a new and unexampled phenomenon in the political world.\n\nThe want of a mutual guaranty of the State governments is\nanother capital imperfection in the federal plan. There is nothing\nof this kind declared in the articles that compose it; and to imply\na tacit guaranty from considerations of utility, would be a still\nmore flagrant departure from the clause which has been mentioned,\nthan to imply a tacit power of coercion from the like considerations.\nThe want of a guaranty, though it might in its consequences\nendanger the Union, does not so immediately attack its existence as\nthe want of a constitutional sanction to its laws.\n\nWithout a guaranty the assistance to be derived from the Union\nin repelling 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\nthe people, while the national government could legally do nothing\nmore than behold its encroachments with indignation and regret. A\nsuccessful faction may erect a tyranny on the ruins of order and\nlaw, while no succor could constitutionally be afforded by the Union\nto the friends and supporters of the government. The tempestuous\nsituation from which Massachusetts has scarcely emerged, evinces\nthat dangers of this kind are not merely speculative. Who can\ndetermine what might have been the issue of her late convulsions, if\nthe malcontents had been headed by a Caesar or by a Cromwell? Who\ncan predict what effect a despotism, established in Massachusetts,\nwould have upon the liberties of New Hampshire or Rhode Island, of\nConnecticut or New York?\n\nThe inordinate pride of State importance has suggested to some\nminds an objection to the principle of a guaranty in the federal\ngovernment, as involving an officious interference in the domestic\nconcerns of the members. A scruple of this kind would deprive us of\none of the principal advantages to be expected from union, and can\nonly flow from a misapprehension of the nature of the provision\nitself. It could be no impediment to reforms of the State\nconstitution by a majority of the people in a legal and peaceable\nmode. This right would remain undiminished. The guaranty could\nonly operate against changes to be effected by violence. Towards\nthe preventions of calamities of this kind, too many checks cannot\nbe provided. The peace of society and the stability of government\ndepend absolutely on the efficacy of the precautions adopted on this\nhead. Where the whole power of the government is in the hands of\nthe people, there is the less pretense for the use of violent\nremedies in partial or occasional distempers of the State. The\nnatural cure for an ill-administration, in a popular or\nrepresentative constitution, is a change of men. A guaranty by the\nnational authority would be as much levelled against the usurpations\nof rulers as against the ferments and outrages of faction and\nsedition in the 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\nappeared from the trial which has been made of it. I speak of it\nnow solely with a view to equality among the States. Those who have\nbeen accustomed to contemplate the circumstances which produce and\nconstitute national wealth, must be satisfied that there is no\ncommon standard or barometer by which the degrees of it can be\nascertained. Neither the value of lands, nor the numbers of the\npeople, which have been successively proposed as the rule of State\ncontributions, has any pretension to being a just representative.\nIf we compare the wealth of the United Netherlands with that of\nRussia or Germany, or even of France, and if we at the same time\ncompare the total value of the lands and the aggregate population of\nthat contracted district with the total value of the lands and the\naggregate population of the immense regions of either of the three\nlast-mentioned countries, we shall at once discover that there is no\ncomparison between the proportion of either of these two objects and\nthat of the relative wealth of those nations. If the like parallel\nwere to be run between several of the American States, it would\nfurnish a like result. Let Virginia be contrasted with North\nCarolina, Pennsylvania with Connecticut, or Maryland with New\nJersey, and we shall be convinced that the respective abilities of\nthose States, in relation to revenue, bear little or no analogy to\ntheir comparative stock in lands or to their comparative population.\nThe position may be equally illustrated by a similar process\nbetween the counties of the same State. No man who is acquainted\nwith the State of New York will doubt that the active wealth of\nKing's County bears a much greater proportion to that of Montgomery\nthan it would appear to be if we should take either the total value\nof the lands or the total number of the people as a criterion!\n\nThe wealth of nations depends upon an infinite variety of causes.\nSituation, soil, climate, the nature of the productions, the\nnature of the government, the genius of the citizens, the degree of\ninformation they possess, the state of commerce, of arts, of\nindustry, these circumstances and many more, too complex, minute, or\nadventitious to admit of a particular specification, occasion\ndifferences hardly conceivable in the relative opulence and riches\nof different countries. The consequence clearly is that there can\nbe no common measure of national wealth, and, of course, no general\nor stationary rule by which the ability of a state to pay taxes can\nbe determined. The attempt, therefore, to regulate the\ncontributions of the members of a confederacy by any such rule,\ncannot fail to be productive of glaring inequality and extreme\noppression.\n\nThis inequality would of itself be sufficient in America to work\nthe eventual destruction of the Union, if any mode of enforcing a\ncompliance with its requisitions could be devised. The suffering\nStates would not long consent to remain associated upon a principle\nwhich distributes the public burdens with so unequal a hand, and\nwhich was calculated to impoverish and oppress the citizens of some\nStates, while those of others would scarcely be conscious of the\nsmall proportion of the weight they were required to sustain. This,\nhowever, is an evil inseparable from the principle of quotas and\nrequisitions.\n\nThere is no method of steering clear of this inconvenience, but\nby authorizing the national government to raise its own revenues in\nits own way. Imposts, excises, and, in general, all duties upon\narticles of consumption, may be compared to a fluid, which will, in\ntime, find its level with the means of paying them. The amount to\nbe contributed by each citizen will in a degree be at his own\noption, and can be regulated by an attention to his resources. The\nrich may be extravagant, the poor can be frugal; and private\noppression may always be avoided by a judicious selection of objects\nproper for such impositions. If inequalities should arise in some\nStates from duties on particular objects, these will, in all\nprobability, be counterbalanced by proportional inequalities in\nother States, from the duties on other objects. In the course of\ntime and things, an equilibrium, as far as it is attainable in so\ncomplicated a subject, will be established everywhere. Or, if\ninequalities should still exist, they would neither be so great in\ntheir degree, so uniform in their operation, nor so odious in their\nappearance, as those which would necessarily spring from quotas,\nupon any scale that can possibly be devised.\n\nIt is a signal advantage of taxes on articles of consumption,\nthat they contain in their own nature a security against excess.\nThey prescribe their own limit; which cannot be exceeded without\ndefeating the end proposed, that is, an extension of the revenue.\nWhen applied to this object, the saying is as just as it is witty,\nthat, \"in political arithmetic, two and two do not always make four.\"\n\nIf duties are too high, they lessen the consumption; the\ncollection is eluded; and the product to the treasury is not so\ngreat as when they are confined within proper and moderate bounds.\nThis forms a complete barrier against any material oppression of\nthe citizens by taxes of this class, and is itself a natural\nlimitation of the power of imposing them.\n\nImpositions of this kind usually fall under the denomination of\nindirect taxes, and must for a long time constitute the chief part\nof the revenue raised in this country. Those of the direct kind,\nwhich principally relate to land and buildings, may admit of a rule\nof apportionment. Either the value of land, or the number of the\npeople, may serve as a standard. The state of agriculture and the\npopulousness of a country have been considered as nearly connected\nwith each other. And, as a rule, for the purpose intended, numbers,\nin the view of simplicity and certainty, are entitled to a\npreference. In every country it is a herculean task to obtain a\nvaluation of the land; in a country imperfectly settled and\nprogressive in improvement, the difficulties are increased almost to\nimpracticability. The expense of an accurate valuation is, in all\nsituations, a formidable objection. In a branch of taxation where\nno limits to the discretion of the government are to be found in the\nnature 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", "date": null, "title": "Other Defects of the Present Confederation", "paper_id": 21, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIN ADDITION to the defects already enumerated in the existing\nfederal system, there are others of not less importance, which\nconcur in rendering it altogether unfit for the administration of\nthe affairs of the Union.\n\nThe want of a power to regulate commerce is by all parties\nallowed to be of the number. The utility of such a power has been\nanticipated under the first head of our inquiries; and for this\nreason, as well as from the universal conviction entertained upon\nthe subject, little need be added in this place. It is indeed\nevident, on the most superficial view, that there is no object,\neither as it respects the interests of trade or finance, that more\nstrongly demands a federal superintendence. The want of it has\nalready operated as a bar to the formation of beneficial treaties\nwith 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\nstipulations with the United States, by which they conceded\nprivileges of any importance to them, while they were apprised that\nthe engagements on the part of the Union might at any moment be\nviolated by its members, and while they found from experience that\nthey might enjoy every advantage they desired in our markets,\nwithout granting us any return but such as their momentary\nconvenience might suggest. It is not, therefore, to be wondered at\nthat Mr. Jenkinson, in ushering into the House of Commons a bill for\nregulating the temporary intercourse between the two countries,\nshould preface its introduction by a declaration that similar\nprovisions in former bills had been found to answer every purpose to\nthe commerce of Great Britain, and that it would be prudent to\npersist in the plan until it should appear whether the American\ngovernment was likely or not to acquire greater consistency. [1]\n\nSeveral States have endeavored, by separate prohibitions,\nrestrictions, and exclusions, to influence the conduct of that\nkingdom in this particular, but the want of concert, arising from\nthe want of a general authority and from clashing and dissimilar\nviews in the State, has hitherto frustrated every experiment of the\nkind, and will continue to do so as long as the same obstacles to a\nuniformity of measures continue to exist.\n\nThe interfering and unneighborly regulations of some States,\ncontrary to the true spirit of the Union, have, in different\ninstances, given just cause of umbrage and complaint to others, and\nit is to be feared that examples of this nature, if not restrained\nby a national control, would be multiplied and extended till they\nbecame not less serious sources of animosity and discord than\ninjurious impediments to the intercourse between the different parts\nof the Confederacy. \"The commerce of the German empire [2] is in\ncontinual trammels from the multiplicity of the duties which the\nseveral princes and states exact upon the merchandises passing\nthrough their territories, by means of which the fine streams and\nnavigable 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\napplicable to us, yet we may reasonably expect, from the gradual\nconflicts of State regulations, that the citizens of each would at\nlength come to be considered and treated by the others in no better\nlight than that of foreigners and aliens.\n\nThe power of raising armies, by the most obvious construction of\nthe articles of the Confederation, is merely a power of making\nrequisitions upon the States for quotas of men. This practice in\nthe course of the late war, was found replete with obstructions to a\nvigorous and to an economical system of defense. It gave birth to a\ncompetition between the States which created a kind of auction for\nmen. In order to furnish the quotas required of them, they outbid\neach other till bounties grew to an enormous and insupportable size.\nThe hope of a still further increase afforded an inducement to\nthose who were disposed to serve to procrastinate their enlistment,\nand disinclined them from engaging for any considerable periods.\nHence, slow and scanty levies of men, in the most critical\nemergencies of our affairs; short enlistments at an unparalleled\nexpense; continual fluctuations in the troops, ruinous to their\ndiscipline and subjecting the public safety frequently to the\nperilous crisis of a disbanded army. Hence, also, those oppressive\nexpedients for raising men which were upon several occasions\npracticed, and which nothing but the enthusiasm of liberty would\nhave induced the people to endure.\n\nThis method of raising troops is not more unfriendly to economy\nand vigor than it is to an equal distribution of the burden. The\nStates near the seat of war, influenced by motives of\nself-preservation, made efforts to furnish their quotas, which even\nexceeded their abilities; while those at a distance from danger\nwere, for the most part, as remiss as the others were diligent, in\ntheir exertions. The immediate pressure of this inequality was not\nin this case, as in that of the contributions of money, alleviated\nby the hope of a final liquidation. The States which did not pay\ntheir proportions of money might at least be charged with their\ndeficiencies; but no account could be formed of the deficiencies in\nthe supplies of men. We shall not, however, see much reason to\nreget the want of this hope, when we consider how little prospect\nthere is, that the most delinquent States will ever be able to make\ncompensation for their pecuniary failures. The system of quotas and\nrequisitions, whether it be applied to men or money, is, in every\nview, a system of imbecility in the Union, and of inequality and\ninjustice among the members.\n\nThe right of equal suffrage among the States is another\nexceptionable part of the Confederation. Every idea of proportion\nand every rule of fair representation conspire to condemn a\nprinciple, which gives to Rhode Island an equal weight in the scale\nof power with Massachusetts, or Connecticut, or New York; and to\nDeleware an equal voice in the national deliberations with\nPennsylvania, or Virginia, or North Carolina. Its operation\ncontradicts the fundamental maxim of republican government, which\nrequires that the sense of the majority should prevail. Sophistry\nmay reply, that sovereigns are equal, and that a majority of the\nvotes of the States will be a majority of confederated America. But\nthis kind of logical legerdemain will never counteract the plain\nsuggestions of justice and common-sense. It may happen that this\nmajority of States is a small minority of the people of\nAmerica [3]; and two thirds of the people of America could not\nlong be persuaded, upon the credit of artificial distinctions and\nsyllogistic subtleties, to submit their interests to the management\nand disposal of one third. The larger States would after a while\nrevolt from the idea of receiving the law from the smaller. To\nacquiesce in such a privation of their due importance in the\npolitical scale, would be not merely to be insensible to the love of\npower, but even to sacrifice the desire of equality. It is neither\nrational to expect the first, nor just to require the last. The\nsmaller States, considering how peculiarly their safety and welfare\ndepend on union, ought readily to renounce a pretension which, if\nnot relinquished, 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\nobviate the impropriety of an equal vote between States of the most\nunequal dimensions and populousness; nor is the inference accurate\nin point of fact; for we can enumerate nine States which contain\nless than a majority of the people [4]; and it is constitutionally\npossible that these nine may give the vote. Besides, there are\nmatters of considerable moment determinable by a bare majority; and\nthere are others, concerning which doubts have been entertained,\nwhich, if interpreted in favor of the sufficiency of a vote of seven\nStates, would extend its operation to interests of the first\nmagnitude. In addition to this, it is to be observed that there is\na probability of an increase in the number of States, and no\nprovision for a proportional augmentation of the ratio of votes.\n\nBut this is not all: what at first sight may seem a remedy, is,\nin reality, a poison. To give a minority a negative upon the\nmajority (which is always the case where more than a majority is\nrequisite to a decision), is, in its tendency, to subject the sense\nof the greater number to that of the lesser. Congress, from the\nnonattendance of a few States, have been frequently in the situation\nof a Polish diet, where a single VOTE has been sufficient to put a\nstop to all their movements. A sixtieth part of the Union, which is\nabout the proportion of Delaware and Rhode Island, has several times\nbeen able to oppose an entire bar to its operations. This is one of\nthose refinements which, in practice, has an effect the reverse of\nwhat is expected from it in theory. The necessity of unanimity in\npublic bodies, or of something approaching towards it, has been\nfounded upon a supposition that it would contribute to security.\nBut its real operation is to embarrass the administration, to\ndestroy the energy of the government, and to substitute the\npleasure, caprice, or artifices of an insignificant, turbulent, or\ncorrupt junto, to the regular deliberations and decisions of a\nrespectable majority. In those emergencies of a nation, in which\nthe goodness or badness, the weakness or strength of its government,\nis of the greatest importance, there is commonly a necessity for\naction. The public business must, in some way or other, go forward.\nIf a pertinacious minority can control the opinion of a majority,\nrespecting the best mode of conducting it, the majority, in order\nthat something may be done, must conform to the views of the\nminority; and thus the sense of the smaller number will overrule\nthat of the greater, and give a tone to the national proceedings.\nHence, tedious delays; continual negotiation and intrigue;\ncontemptible compromises of the public good. And yet, in such a\nsystem, it is even happy when such compromises can take place: for\nupon some occasions things will not admit of accommodation; and\nthen the measures of government must be injuriously suspended, or\nfatally defeated. It is often, by the impracticability of obtaining\nthe concurrence of the necessary number of votes, kept in a state of\ninaction. Its situation must always savor of weakness, sometimes\nborder upon anarchy.\n\nIt is not difficult to discover, that a principle of this kind\ngives greater scope to foreign corruption, as well as to domestic\nfaction, than that which permits the sense of the majority to\ndecide; though the contrary of this has been presumed. The mistake\nhas proceeded from not attending with due care to the mischiefs that\nmay be occasioned by obstructing the progress of government at\ncertain critical seasons. When the concurrence of a large number is\nrequired by the Constitution to the doing of any national act, we\nare apt to rest satisfied that all is safe, because nothing improper\nwill be likely TO BE DONE, but we forget how much good may be\nprevented, and how much ill may be produced, by the power of\nhindering the doing what may be necessary, and of keeping affairs in\nthe same unfavorable posture in which they may happen to stand at\nparticular periods.\n\nSuppose, for instance, we were engaged in a war, in conjunction\nwith one foreign nation, against another. Suppose the necessity of\nour situation demanded peace, and the interest or ambition of our\nally led him to seek the prosecution of the war, with views that\nmight justify us in making separate terms. In such a state of\nthings, this ally of ours would evidently find it much easier, by\nhis bribes and intrigues, to tie up the hands of government from\nmaking peace, where two thirds of all the votes were requisite to\nthat object, than where a simple majority would suffice. In the\nfirst case, he would have to corrupt a smaller number; in the last,\na greater number. Upon the same principle, it would be much easier\nfor a foreign power with which we were at war to perplex our\ncouncils and embarrass our exertions. And, in a commercial view, we\nmay be subjected to similar inconveniences. A nation, with which we\nmight have a treaty of commerce, could with much greater facility\nprevent our forming a connection with her competitor in trade,\nthough such a connection should be ever so beneficial to ourselves.\n\nEvils of this description ought not to be regarded as imaginary.\nOne of the weak sides of republics, among their numerous\nadvantages, is that they afford too easy an inlet to foreign\ncorruption. An hereditary monarch, though often disposed to\nsacrifice his subjects to his ambition, has so great a personal\ninterest in the government and in the external glory of the nation,\nthat it is not easy for a foreign power to give him an equivalent\nfor what he would sacrifice by treachery to the state. The world\nhas accordingly been witness to few examples of this species of\nroyal prostitution, though there have been abundant specimens of\nevery other kind.\n\nIn republics, persons elevated from the mass of the community,\nby the suffrages of their fellow-citizens, to stations of great\npre-eminence and power, may find compensations for betraying their\ntrust, which, to any but minds animated and guided by superior\nvirtue, may appear to exceed the proportion of interest they have in\nthe common stock, and to overbalance the obligations of duty. Hence\nit is that history furnishes us with so many mortifying examples of\nthe prevalency of foreign corruption in republican governments. How\nmuch this contributed to the ruin of the ancient commonwealths has\nbeen already delineated. It is well known that the deputies of the\nUnited Provinces have, in various instances, been purchased by the\nemissaries of the neighboring kingdoms. The Earl of Chesterfield\n(if my memory serves me right), in a letter to his court, intimates\nthat his success in an important negotiation must depend on his\nobtaining a major's commission for one of those deputies. And in\nSweden the parties were alternately bought by France and England in\nso barefaced and notorious a manner that it excited universal\ndisgust in the nation, and was a principal cause that the most\nlimited monarch in Europe, in a single day, without tumult,\nviolence, or opposition, became one of the most absolute and\nuncontrolled.\n\nA circumstance which crowns the defects of the Confederation\nremains yet to be mentioned, the want of a judiciary power. Laws\nare a dead letter without courts to expound and define their true\nmeaning and operation. The treaties of the United States, to have\nany force at all, must be considered as part of the law of the land.\nTheir true import, as far as respects individuals, must, like all\nother laws, be ascertained by judicial determinations. To produce\nuniformity in these determinations, they ought to be submitted, in\nthe last resort, to one SUPREME TRIBUNAL. And this tribunal ought\nto be instituted under the same authority which forms the treaties\nthemselves. These ingredients are both indispensable. If there is\nin each State a court of final jurisdiction, there may be as many\ndifferent final determinations on the same point as there are courts.\nThere are endless diversities in the opinions of men. We often\nsee not only different courts but the judges of the came court\ndiffering from each other. To avoid the confusion which would\nunavoidably result from the contradictory decisions of a number of\nindependent judicatories, all nations have found it necessary to\nestablish one court paramount to the rest, possessing a general\nsuperintendence, and authorized to settle and declare in the last\nresort a uniform rule of civil justice.\n\nThis is the more necessary where the frame of the government is\nso compounded that the laws of the whole are in danger of being\ncontravened by the laws of the parts. In this case, if the\nparticular tribunals are invested with a right of ultimate\njurisdiction, besides the contradictions to be expected from\ndifference of opinion, there will be much to fear from the bias of\nlocal views and prejudices, and from the interference of local\nregulations. As often as such an interference was to happen, there\nwould be reason to apprehend that the provisions of the particular\nlaws might be preferred to those of the general laws; for nothing\nis more natural to men in office than to look with peculiar\ndeference towards that authority to which they owe their official\nexistence. The treaties of the United States, under the present\nConstitution, are liable to the infractions of thirteen different\nlegislatures, and as many different courts of final jurisdiction,\nacting under the authority of those legislatures. The faith, the\nreputation, the peace of the whole Union, are thus continually at\nthe mercy of the prejudices, the passions, and the interests of\nevery member of which it is composed. Is it possible that foreign\nnations can either respect or confide in such a government? Is it\npossible that the people of America will longer consent to trust\ntheir honor, their happiness, their safety, on so precarious a\nfoundation?\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\nrendered abortive. It must be by this time evident to all men of\nreflection, who can divest themselves of the prepossessions of\npreconceived opinions, that it is a system so radically vicious and\nunsound, as to admit not of amendment but by an entire change in its\nleading features and characters.\n\nThe organization of Congress is itself utterly improper for the\nexercise of those powers which are necessary to be deposited in the\nUnion. A single assembly may be a proper receptacle of those\nslender, or rather fettered, authorities, which have been heretofore\ndelegated to the federal head; but it would be inconsistent with\nall the principles of good government, to intrust it with those\nadditional powers which, even the moderate and more rational\nadversaries of the proposed Constitution admit, ought to reside in\nthe United States. If that plan should not be adopted, and if the\nnecessity of the Union should be able to withstand the ambitious\naims of those men who may indulge magnificent schemes of personal\naggrandizement from its dissolution, the probability would be, that\nwe should run into the project of conferring supplementary powers\nupon Congress, as they are now constituted; and either the machine,\nfrom the intrinsic feebleness of its structure, will moulder into\npieces, in spite of our ill-judged efforts to prop it; or, by\nsuccessive augmentations of its force an energy, as necessity might\nprompt, we shall finally accumulate, in a single body, all the most\nimportant prerogatives of sovereignty, and thus entail upon our\nposterity one of the most execrable forms of government that human\ninfatuation ever contrived. Thus, we should create in reality that\nvery tyranny which the adversaries of the new Constitution either\nare, or affect to be, solicitous to avert.\n\nIt has not a little contributed to the infirmities of the\nexisting federal system, that it never had a ratification by the\nPEOPLE. Resting on no better foundation than the consent of the\nseveral legislatures, it has been exposed to frequent and intricate\nquestions concerning the validity of its powers, and has, in some\ninstances, given birth to the enormous doctrine of a right of\nlegislative repeal. Owing its ratification to the law of a State,\nit has been contended that the same authority might repeal the law\nby which it was ratified. However gross a heresy it may be to\nmaintain that a PARTY to a COMPACT has a right to revoke that\nCOMPACT, the doctrine itself has had respectable advocates. The\npossibility 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\nspeech on introducing the last bill.\n\n2. Encyclopedia, article \"Empire.\"\n\n3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia,\nSouth Carolina, and Maryland are a majority of the whole number of\nthe States, but they do not contain one third of the people.\n\n4. Add New York and Connecticut to the foregoing seven, and they\nwill be less than a majority.\n", "date": "Friday, December 14, 1787", "title": "The Same Subject Continued (Other Defects of the Present Confederation)", "paper_id": 22, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE necessity of a Constitution, at least equally energetic with\nthe one proposed, to the preservation of the Union, is the point at\nthe examination of which we are now arrived.\n\nThis inquiry will naturally divide itself into three\nbranches the objects to be provided for by the federal government,\nthe quantity of power necessary to the accomplishment of those\nobjects, the persons upon whom that power ought to operate. Its\ndistribution and organization will more properly claim our attention\nunder the succeeding head.\n\nThe principal purposes to be answered by union are these the\ncommon defense of the members; the preservation of the public peace\nas well against internal convulsions as external attacks; the\nregulation of commerce with other nations and between the States;\nthe superintendence of our intercourse, political and commercial,\nwith foreign countries.\n\nThe authorities essential to the common defense are these: to\nraise armies; to build and equip fleets; to prescribe rules for\nthe government of both; to direct their operations; to provide for\ntheir support. These powers ought to exist without limitation,\nBECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY\nOF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF\nTHE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances\nthat endanger the safety of nations are infinite, and for this\nreason no constitutional shackles can wisely be imposed on the power\nto which the care of it is committed. This power ought to be\ncoextensive with all the possible combinations of such\ncircumstances; and ought to be under the direction of the same\ncouncils which are appointed to preside over the common defense.\n\nThis is one of those truths which, to a correct and unprejudiced\nmind, carries its own evidence along with it; and may be obscured,\nbut cannot be made plainer by argument or reasoning. It rests upon\naxioms as simple as they are universal; the MEANS ought to be\nproportioned to the END; the persons, from whose agency the\nattainment of any END is expected, ought to possess the MEANS by\nwhich it is to be attained.\n\nWhether there ought to be a federal government intrusted with\nthe care of the common defense, is a question in the first instance,\nopen for discussion; but the moment it is decided in the\naffirmative, it will follow, that that government ought to be\nclothed with all the powers requisite to complete execution of its\ntrust. And unless it can be shown that the circumstances which may\naffect the public safety are reducible within certain determinate\nlimits; unless the contrary of this position can be fairly and\nrationally disputed, it must be admitted, as a necessary\nconsequence, that there can be no limitation of that authority which\nis to provide for the defense and protection of the community, in\nany matter essential to its efficacy that is, in any matter\nessential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL\nFORCES.\n\nDefective as the present Confederation has been proved to be,\nthis principle appears to have been fully recognized by the framers\nof it; though they have not made proper or adequate provision for\nits exercise. Congress have an unlimited discretion to make\nrequisitions of men and money; to govern the army and navy; to\ndirect their operations. As their requisitions are made\nconstitutionally binding upon the States, who are in fact under the\nmost solemn obligations to furnish the supplies required of them,\nthe intention evidently was that the United States should command\nwhatever resources were by them judged requisite to the \"common\ndefense and general welfare.\" It was presumed that a sense of\ntheir true interests, and a regard to the dictates of good faith,\nwould be found sufficient pledges for the punctual performance of\nthe duty of the members to the federal head.\n\nThe experiment has, however, demonstrated that this expectation\nwas ill-founded and illusory; and the observations, made under the\nlast head, will, I imagine, have sufficed to convince the impartial\nand discerning, that there is an absolute necessity for an entire\nchange in the first principles of the system; that if we are in\nearnest about giving the Union energy and duration, we must abandon\nthe vain project of legislating upon the States in their collective\ncapacities; we must extend the laws of the federal government to\nthe individual citizens of America; we must discard the fallacious\nscheme of quotas and requisitions, as equally impracticable and\nunjust. The result from all this is that the Union ought to be\ninvested with full power to levy troops; to build and equip fleets;\nand to raise the revenues which will be required for the formation\nand support of an army and navy, in the customary and ordinary modes\npracticed in other governments.\n\nIf the circumstances of our country are such as to demand a\ncompound instead of a simple, a confederate instead of a sole,\ngovernment, the essential point which will remain to be adjusted\nwill be to discriminate the OBJECTS, as far as it can be done, which\nshall appertain to the different provinces or departments of power;\nallowing to each the most ample authority for fulfilling the\nobjects committed to its charge. Shall the Union be constituted the\nguardian of the common safety? Are fleets and armies and revenues\nnecessary to this purpose? The government of the Union must be\nempowered to pass all laws, and to make all regulations which have\nrelation to them. The same must be the case in respect to commerce,\nand to every other matter to which its jurisdiction is permitted to\nextend. Is the administration of justice between the citizens of\nthe same State the proper department of the local governments?\nThese must possess all the authorities which are connected with\nthis object, and with every other that may be allotted to their\nparticular cognizance and direction. Not to confer in each case a\ndegree of power commensurate to the end, would be to violate the\nmost obvious rules of prudence and propriety, and improvidently to\ntrust the great interests of the nation to hands which are disabled\nfrom managing them with vigor and success.\n\nWho is likely to make suitable provisions for the public\ndefense, as that body to which the guardianship of the public safety\nis confided; which, as the centre of information, will best\nunderstand the extent and urgency of the dangers that threaten; as\nthe representative of the WHOLE, will feel itself most deeply\ninterested in the preservation of every part; which, from the\nresponsibility implied in the duty assigned to it, will be most\nsensibly impressed with the necessity of proper exertions; and\nwhich, by the extension of its authority throughout the States, can\nalone establish uniformity and concert in the plans and measures by\nwhich the common safety is to be secured? Is there not a manifest\ninconsistency in devolving upon the federal government the care of\nthe general defense, and leaving in the State governments the\nEFFECTIVE powers by which it is to be provided for? Is not a want\nof co-operation the infallible consequence of such a system? And\nwill not weakness, disorder, an undue distribution of the burdens\nand calamities of war, an unnecessary and intolerable increase of\nexpense, be its natural and inevitable concomitants? Have we not\nhad unequivocal experience of its effects in the course of the\nrevolution which we have just accomplished?\n\nEvery view we may take of the subject, as candid inquirers after\ntruth, will serve to convince us, that it is both unwise and\ndangerous to deny the federal government an unconfined authority, as\nto all those objects which are intrusted to its management. It will\nindeed deserve the most vigilant and careful attention of the\npeople, to see that it be modeled in such a manner as to admit of\nits being safely vested with the requisite powers. If any plan\nwhich has been, or may be, offered to our consideration, should not,\nupon a dispassionate inspection, be found to answer this\ndescription, it ought to be rejected. A government, the\nconstitution of which renders it unfit to be trusted with all the\npowers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT,\nwould be an unsafe and improper depositary of the NATIONAL INTERESTS.\nWherever THESE can with propriety be confided, the coincident\npowers may safely accompany them. This is the true result of all\njust reasoning upon the subject. And the adversaries of the plan\npromulgated by the convention ought to have confined themselves to\nshowing, that the internal structure of the proposed government was\nsuch as to render it unworthy of the confidence of the people. They\nought not to have wandered into inflammatory declamations and\nunmeaning cavils about the extent of the powers. The POWERS are not\ntoo extensive for the OBJECTS of federal administration, or, in\nother words, for the management of our NATIONAL INTERESTS; nor can\nany satisfactory argument be framed to show that they are chargeable\nwith such an excess. If it be true, as has been insinuated by some\nof the writers on the other side, that the difficulty arises from\nthe nature of the thing, and that the extent of the country will not\npermit us to form a government in which such ample powers can safely\nbe reposed, it would prove that we ought to contract our views, and\nresort 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\nthe most essential national interests, without daring to trust it to\nthe authorities which are indispensible to their proper and\nefficient management. Let us not attempt to reconcile\ncontradictions, but firmly embrace a rational alternative.\n\nI trust, however, that the impracticability of one general\nsystem cannot be shown. I am greatly mistaken, if any thing of\nweight has yet been advanced of this tendency; and I flatter\nmyself, that the observations which have been made in the course of\nthese papers have served to place the reverse of that position in as\nclear a light as any matter still in the womb of time and experience\ncan be susceptible of. This, at all events, must be evident, that\nthe very difficulty itself, drawn from the extent of the country, is\nthe strongest argument in favor of an energetic government; for any\nother can certainly never preserve the Union of so large an empire.\nIf we embrace the tenets of those who oppose the adoption of the\nproposed Constitution, as the standard of our political creed, we\ncannot fail to verify the gloomy doctrines which predict the\nimpracticability of a national system pervading entire limits of the\npresent Confederacy.\n\nPUBLIUS.\n", "date": "Tuesday, December 18, 1787", "title": "The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union", "paper_id": 23, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTo THE powers proposed to be conferred upon the federal\ngovernment, in respect to the creation and direction of the national\nforces, I have met with but one specific objection, which, if I\nunderstand it right, is this, that proper provision has not been\nmade against the existence of standing armies in time of peace; an\nobjection which, I shall now endeavor to show, rests on weak and\nunsubstantial foundations.\n\nIt has indeed been brought forward in the most vague and general\nform, supported only by bold assertions, without the appearance of\nargument; without even the sanction of theoretical opinions; in\ncontradiction to the practice of other free nations, and to the\ngeneral sense of America, as expressed in most of the existing\nconstitutions. The proprietory of this remark will appear, the\nmoment it is recollected that the objection under consideration\nturns upon a supposed necessity of restraining the LEGISLATIVE\nauthority of the nation, in the article of military establishments;\na principle unheard of, except in one or two of our State\nconstitutions, and rejected in all the rest.\n\nA stranger to our politics, who was to read our newspapers at\nthe present juncture, without having previously inspected the plan\nreported by the convention, would be naturally led to one of two\nconclusions: either that it contained a positive injunction, that\nstanding armies should be kept up in time of peace; or that it\nvested in the EXECUTIVE the whole power of levying troops, without\nsubjecting his discretion, in any shape, to the control of the\nlegislature.\n\nIf he came afterwards to peruse the plan itself, he would be\nsurprised to discover, that neither the one nor the other was the\ncase; that the whole power of raising armies was lodged in the\nLEGISLATURE, not in the EXECUTIVE; that this legislature was to be\na popular body, consisting of the representatives of the people\nperiodically elected; and that instead of the provision he had\nsupposed in favor of standing armies, there was to be found, in\nrespect to this object, an important qualification even of the\nlegislative discretion, in that clause which forbids the\nappropriation of money for the support of an army for any longer\nperiod than two years a precaution which, upon a nearer view of it,\nwill appear to be a great and real security against the keeping up\nof troops without evident necessity.\n\nDisappointed in his first surmise, the person I have supposed\nwould be apt to pursue his conjectures a little further. He would\nnaturally say to himself, it is impossible that all this vehement\nand pathetic declamation can be without some colorable pretext. It\nmust needs be that this people, so jealous of their liberties, have,\nin all the preceding models of the constitutions which they have\nestablished, inserted the most precise and rigid precautions on this\npoint, the omission of which, in the new plan, has given birth to\nall this apprehension and clamor.\n\nIf, under this impression, he proceeded to pass in review the\nseveral State constitutions, how great would be his disappointment\nto find that TWO ONLY of them [1] contained an interdiction of\nstanding armies in time of peace; that the other eleven had either\nobserved a profound silence on the subject, or had in express terms\nadmitted the right of the Legislature to authorize their existence.\n\nStill, however he would be persuaded that there must be some\nplausible foundation for the cry raised on this head. He would\nnever be able to imagine, while any source of information remained\nunexplored, that it was nothing more than an experiment upon the\npublic credulity, dictated either by a deliberate intention to\ndeceive, or by the overflowings of a zeal too intemperate to be\ningenuous. It would probably occur to him, that he would be likely\nto find the precautions he was in search of in the primitive compact\nbetween the States. Here, at length, he would expect to meet with a\nsolution of the enigma. No doubt, he would observe to himself, the\nexisting Confederation must contain the most explicit provisions\nagainst military establishments in time of peace; and a departure\nfrom this model, in a favorite point, has occasioned the discontent\nwhich appears to influence these political champions.\n\nIf he should now apply himself to a careful and critical survey\nof the articles of Confederation, his astonishment would not only be\nincreased, but would acquire a mixture of indignation, at the\nunexpected discovery, that these articles, instead of containing the\nprohibition he looked for, and though they had, with jealous\ncircumspection, restricted the authority of the State legislatures\nin this particular, had not imposed a single restraint on that of\nthe United States. If he happened to be a man of quick sensibility,\nor ardent temper, he could now no longer refrain from regarding\nthese clamors as the dishonest artifices of a sinister and\nunprincipled opposition to a plan which ought at least to receive a\nfair and candid examination from all sincere lovers of their\ncountry! How else, he would say, could the authors of them have\nbeen tempted to vent such loud censures upon that plan, about a\npoint in which it seems to have conformed itself to the general\nsense of America as declared in its different forms of government,\nand in which it has even superadded a new and powerful guard unknown\nto any of them? If, on the contrary, he happened to be a man of\ncalm and dispassionate feelings, he would indulge a sigh for the\nfrailty of human nature, and would lament, that in a matter so\ninteresting to the happiness of millions, the true merits of the\nquestion should be perplexed and entangled by expedients so\nunfriendly to an impartial and right determination. Even such a man\ncould hardly forbear remarking, that a conduct of this kind has too\nmuch the appearance of an intention to mislead the people by\nalarming their passions, rather than to convince them by arguments\naddressed 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\nview of its intrinsic merits. From a close examination it will\nappear that restraints upon the discretion of the legislature in\nrespect to military establishments in time of peace, would be\nimproper to be imposed, and if imposed, from the necessities of\nsociety, would be unlikely to be observed.\n\nThough a wide ocean separates the United States from Europe, yet\nthere are various considerations that warn us against an excess of\nconfidence or security. On one side of us, and stretching far into\nour rear, are growing settlements subject to the dominion of Britain.\nOn the other side, and extending to meet the British settlements,\nare colonies and establishments subject to the dominion of Spain.\nThis situation and the vicinity of the West India Islands,\nbelonging to these two powers create between them, in respect to\ntheir American possessions and in relation to us, a common interest.\nThe savage tribes on our Western frontier ought to be regarded as\nour natural enemies, their natural allies, because they have most to\nfear from us, and most to hope from them. The improvements in the\nart of navigation have, as to the facility of communication,\nrendered distant nations, in a great measure, neighbors. Britain\nand Spain are among the principal maritime powers of Europe. A\nfuture concert of views between these nations ought not to be\nregarded as improbable. The increasing remoteness of consanguinity\nis every day diminishing the force of the family compact between\nFrance and Spain. And politicians have ever with great reason\nconsidered the ties of blood as feeble and precarious links of\npolitical connection. These circumstances combined, admonish us not\nto be too sanguine in considering ourselves as entirely out of the\nreach of danger.\n\nPrevious to the Revolution, and ever since the peace, there has\nbeen a constant necessity for keeping small garrisons on our Western\nfrontier. No person can doubt that these will continue to be\nindispensable, if it should only be against the ravages and\ndepredations of the Indians. These garrisons must either be\nfurnished by occasional detachments from the militia, or by\npermanent corps in the pay of the government. The first is\nimpracticable; 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\ntimes of profound peace. And if they could be prevailed upon or\ncompelled to do it, the increased expense of a frequent rotation of\nservice, and the loss of labor and disconcertion of the industrious\npursuits of individuals, would form conclusive objections to the\nscheme. It would be as burdensome and injurious to the public as\nruinous to private citizens. The latter resource of permanent corps\nin the pay of the government amounts to a standing army in time of\npeace; a small one, indeed, but not the less real for being small.\nHere is a simple view of the subject, that shows us at once the\nimpropriety of a constitutional interdiction of such establishments,\nand the necessity of leaving the matter to the discretion and\nprudence of the legislature.\n\nIn proportion to our increase in strength, it is probable, nay,\nit may be said certain, that Britain and Spain would augment their\nmilitary establishments in our neighborhood. If we should not be\nwilling to be exposed, in a naked and defenseless condition, to\ntheir insults and encroachments, we should find it expedient to\nincrease our frontier garrisons in some ratio to the force by which\nour Western settlements might be annoyed. There are, and will be,\nparticular posts, the possession of which will include the command\nof large districts of territory, and facilitate future invasions of\nthe remainder. It may be added that some of those posts will be\nkeys to the trade with the Indian nations. Can any man think it\nwould be wise to leave such posts in a situation to be at any\ninstant seized by one or the other of two neighboring and formidable\npowers? To act this part would be to desert all the usual maxims of\nprudence and policy.\n\nIf we mean to be a commercial people, or even to be secure on\nour Atlantic side, we must endeavor, as soon as possible, to have a\nnavy. To this purpose there must be dock-yards and arsenals; and\nfor the defense of these, fortifications, and probably garrisons.\nWhen a nation has become so powerful by sea that it can protect its\ndock-yards by its fleets, this supersedes the necessity of garrisons\nfor that purpose; but where naval establishments are in their\ninfancy, moderate garrisons will, in all likelihood, be found an\nindispensable security against descents for the destruction of the\narsenals and dock-yards, and sometimes of the fleet itself.\n\nPUBLIUS.\n\n1. This statement of the matter is taken from the printed\ncollection of State constitutions. Pennsylvania and North Carolina\nare the two which contain the interdiction in these words: \"As\nstanding armies in time of peace are dangerous to liberty, THEY\nOUGHT NOT to be kept up.\" This is, in truth, rather a CAUTION than\na PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland\nhave, in each of their bils of rights, a clause to this effect:\n\"Standing armies are dangerous to liberty, and ought not to be\nraised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE\"; which\nis a formal admission of the authority of the Legislature. New York\nhas no bills of rights, and her constitution says not a word about\nthe matter. No bills of rights appear annexed to the constitutions\nof the other States, except the foregoing, and their constitutions\nare equally silent. I am told, however that one or two States have\nbills of rights which do not appear in this collection; but that\nthose also recognize the right of the legislative authority in this\nrespect.\n", "date": null, "title": "The Powers Necessary to the Common Defense Further Considered", "paper_id": 24, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIT MAY perhaps be urged that the objects enumerated in the\npreceding number ought to be provided for by the State governments,\nunder the direction of the Union. But this would be, in reality, an\ninversion of the primary principle of our political association, as\nit would in practice transfer the care of the common defense from\nthe federal head to the individual members: a project oppressive to\nsome States, dangerous to all, and baneful to the Confederacy.\n\nThe territories of Britain, Spain, and of the Indian nations in\nour neighborhood do not border on particular States, but encircle\nthe Union from Maine to Georgia. The danger, though in different\ndegrees, is therefore common. And the means of guarding against it\nought, in like manner, to be the objects of common councils and of a\ncommon treasury. It happens that some States, from local situation,\nare more directly exposed. New York is of this class. Upon the\nplan of separate provisions, New York would have to sustain the\nwhole weight of the establishments requisite to her immediate\nsafety, and to the mediate or ultimate protection of her neighbors.\nThis would neither be equitable as it respected New York nor safe\nas it respected the other States. Various inconveniences would\nattend such a system. The States, to whose lot it might fall to\nsupport the necessary establishments, would be as little able as\nwilling, for a considerable time to come, to bear the burden of\ncompetent provisions. The security of all would thus be subjected\nto the parsimony, improvidence, or inability of a part. If the\nresources of such part becoming more abundant and extensive, its\nprovisions should be proportionally enlarged, the other States would\nquickly take the alarm at seeing the whole military force of the\nUnion in the hands of two or three of its members, and those\nprobably amongst the most powerful. They would each choose to have\nsome counterpoise, and pretenses could easily be contrived. In this\nsituation, military establishments, nourished by mutual jealousy,\nwould be apt to swell beyond their natural or proper size; and\nbeing at the separate disposal of the members, they would be engines\nfor the abridgment or demolition of the national authority.\n\nReasons have been already given to induce a supposition that the\nState governments will too naturally be prone to a rivalship with\nthat of the Union, the foundation of which will be the love of\npower; and that in any contest between the federal head and one of\nits members the people will be most apt to unite with their local\ngovernment. If, in addition to this immense advantage, the ambition\nof the members should be stimulated by the separate and independent\npossession of military forces, it would afford too strong a\ntemptation and too great a facility to them to make enterprises\nupon, and finally to subvert, the constitutional authority of the\nUnion. On the other hand, the liberty of the people would be less\nsafe in this state of things than in that which left the national\nforces in the hands of the national government. As far as an army\nmay be considered as a dangerous weapon of power, it had better be\nin those hands of which the people are most likely to be jealous\nthan in those of which they are least likely to be jealous. For it\nis 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\nleast suspicion.\n\nThe framers of the existing Confederation, fully aware of the\ndanger to the Union from the separate possession of military forces\nby the States, have, in express terms, prohibited them from having\neither ships or troops, unless with the consent of Congress. The\ntruth is, that the existence of a federal government and military\nestablishments under State authority are not less at variance with\neach other than a due supply of the federal treasury and the system\nof quotas and requisitions.\n\nThere are other lights besides those already taken notice of, in\nwhich the impropriety of restraints on the discretion of the\nnational legislature will be equally manifest. The design of the\nobjection, which has been mentioned, is to preclude standing armies\nin time of peace, though we have never been informed how far it is\ndesigned the prohibition should extend; whether to raising armies\nas well as to KEEPING THEM UP in a season of tranquillity or not.\nIf it be confined to the latter it will have no precise\nsignification, and it will be ineffectual for the purpose intended.\nWhen armies are once raised what shall be denominated \"keeping\nthem up,\" contrary to the sense of the Constitution? What time\nshall be requisite to ascertain the violation? Shall it be a week,\na month, a year? Or shall we say they may be continued as long as\nthe danger which occasioned their being raised continues? This\nwould be to admit that they might be kept up IN TIME OF PEACE,\nagainst threatening or impending danger, which would be at once to\ndeviate from the literal meaning of the prohibition, and to\nintroduce an extensive latitude of construction. Who shall judge of\nthe continuance of the danger? This must undoubtedly be submitted\nto the national government, and the matter would then be brought to\nthis issue, that the national government, to provide against\napprehended danger, might in the first instance raise troops, and\nmight afterwards keep them on foot as long as they supposed the\npeace or safety of the community was in any degree of jeopardy. It\nis easy to perceive that a discretion so latitudinary as this would\nafford ample room for eluding the force of the provision.\n\nThe supposed utility of a provision of this kind can only be\nfounded on the supposed probability, or at least possibility, of a\ncombination between the executive and the legislative, in some\nscheme of usurpation. Should this at any time happen, how easy\nwould it be to fabricate pretenses of approaching danger! Indian\nhostilities, instigated by Spain or Britain, would always be at hand.\nProvocations to produce the desired appearances might even be\ngiven to some foreign power, and appeased again by timely\nconcessions. If we can reasonably presume such a combination to\nhave been formed, and that the enterprise is warranted by a\nsufficient prospect of success, the army, when once raised, from\nwhatever cause, or on whatever pretext, may be applied to the\nexecution of the project.\n\nIf, to obviate this consequence, it should be resolved to extend\nthe prohibition to the RAISING of armies in time of peace, the\nUnited States would then exhibit the most extraordinary spectacle\nwhich the world has yet seen, that of a nation incapacitated by its\nConstitution to prepare for defense, before it was actually invaded.\nAs the ceremony of a formal denunciation of war has of late fallen\ninto disuse, the presence of an enemy within our territories must be\nwaited for, as the legal warrant to the government to begin its\nlevies of men for the protection of the State. We must receive the\nblow, before we could even prepare to return it. All that kind of\npolicy by which nations anticipate distant danger, and meet the\ngathering storm, must be abstained from, as contrary to the genuine\nmaxims of a free government. We must expose our property and\nliberty 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\nits preservation.\n\nHere I expect we shall be told that the militia of the country\nis its natural bulwark, and would be at all times equal to the\nnational defense. This doctrine, in substance, had like to have\nlost us our independence. It cost millions to the United States\nthat might have been saved. The facts which, from our own\nexperience, forbid a reliance of this kind, are too recent to permit\nus to be the dupes of such a suggestion. The steady operations of\nwar against a regular and disciplined army can only be successfully\nconducted by a force of the same kind. Considerations of economy,\nnot less than of stability and vigor, confirm this position. The\nAmerican militia, in the course of the late war, have, by their\nvalor on numerous occasions, erected eternal monuments to their\nfame; but the bravest of them feel and know that the liberty of\ntheir country could not have been established by their efforts\nalone, however great and valuable they were. War, like most other\nthings, is a science to be acquired and perfected by diligence, by\nperserverance, by time, and by practice.\n\nAll violent policy, as it is contrary to the natural and\nexperienced course of human affairs, defeats itself. Pennsylvania,\nat this instant, affords an example of the truth of this remark.\nThe Bill of Rights of that State declares that standing armies are\ndangerous to liberty, and ought not to be kept up in time of peace.\nPennsylvania, nevertheless, in a time of profound peace, from the\nexistence of partial disorders in one or two of her counties, has\nresolved to raise a body of troops; and in all probability will\nkeep them up as long as there is any appearance of danger to the\npublic peace. The conduct of Massachusetts affords a lesson on the\nsame subject, though on different ground. That State (without\nwaiting for the sanction of Congress, as the articles of the\nConfederation require) was compelled to raise troops to quell a\ndomestic insurrection, and still keeps a corps in pay to prevent a\nrevival of the spirit of revolt. The particular constitution of\nMassachusetts opposed no obstacle to the measure; but the instance\nis still of use to instruct us that cases are likely to occur under\nour government, as well as under those of other nations, which will\nsometimes render a military force in time of peace essential to the\nsecurity of the society, and that it is therefore improper in this\nrespect to control the legislative discretion. It also teaches us,\nin its application to the United States, how little the rights of a\nfeeble government are likely to be respected, even by its own\nconstituents. And it teaches us, in addition to the rest, how\nunequal parchment provisions are to a struggle with public necessity.\n\nIt was a fundamental maxim of the Lacedaemonian commonwealth,\nthat the post of admiral should not be conferred twice on the same\nperson. The Peloponnesian confederates, having suffered a severe\ndefeat at sea from the Athenians, demanded Lysander, who had before\nserved with success in that capacity, to command the combined fleets.\nThe Lacedaemonians, to gratify their allies, and yet preserve the\nsemblance of an adherence to their ancient institutions, had\nrecourse to the flimsy subterfuge of investing Lysander with the\nreal power of admiral, under the nominal title of vice-admiral.\nThis instance is selected from among a multitude that might be\ncited to confirm the truth already advanced and illustrated by\ndomestic examples; which is, that nations pay little regard to\nrules and maxims calculated in their very nature to run counter to\nthe necessities of society. Wise politicians will be cautious about\nfettering the government with restrictions that cannot be observed,\nbecause they know that every breach of the fundamental laws, though\ndictated by necessity, impairs that sacred reverence which ought to\nbe maintained in the breast of rulers towards the constitution of a\ncountry, and forms a precedent for other breaches where the same\nplea of necessity does not exist at all, or is less urgent and\npalpable.\n\nPUBLIUS.\n", "date": "Friday, December 21, 1787", "title": "The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)", "paper_id": 25, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIT WAS a thing hardly to be expected that in a popular\nrevolution the minds of men should stop at that happy mean which\nmarks the salutary boundary between POWER and PRIVILEGE, and\ncombines the energy of government with the security of private\nrights. A failure in this delicate and important point is the great\nsource of the inconveniences we experience, and if we are not\ncautious to avoid a repetition of the error, in our future attempts\nto rectify and ameliorate our system, we may travel from one\nchimerical project to another; we may try change after change; but\nwe shall never be likely to make any material change for the better.\n\nThe idea of restraining the legislative authority, in the means\nof providing for the national defense, is one of those refinements\nwhich owe their origin to a zeal for liberty more ardent than\nenlightened. We have seen, however, that it has not had thus far an\nextensive prevalency; that even in this country, where it made its\nfirst appearance, Pennsylvania and North Carolina are the only two\nStates by which it has been in any degree patronized; and that all\nthe others have refused to give it the least countenance; wisely\njudging that confidence must be placed somewhere; that the\nnecessity of doing it, is implied in the very act of delegating\npower; and that it is better to hazard the abuse of that confidence\nthan to embarrass the government and endanger the public safety by\nimpolitic restrictions on the legislative authority. The opponents\nof the proposed Constitution combat, in this respect, the general\ndecision of America; and instead of being taught by experience the\npropriety of correcting any extremes into which we may have\nheretofore run, they appear disposed to conduct us into others still\nmore 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\nmay be affirmed without the imputation of invective, that if the\nprinciples they inculcate, on various points, could so far obtain as\nto become the popular creed, they would utterly unfit the people of\nthis country for any species of government whatever. But a danger\nof this kind is not to be apprehended. The citizens of America have\ntoo much discernment to be argued into anarchy. And I am much\nmistaken, if experience has not wrought a deep and solemn conviction\nin the public mind, that greater energy of government is essential\nto the welfare and prosperity of the community.\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 may\narise from a contemplation of the nature and tendency of such\ninstitutions, fortified by the events that have happened in other\nages and countries, yet as a national sentiment, it must be traced\nto those habits of thinking which we derive from the nation from\nwhom the inhabitants of these States have in general sprung.\n\nIn England, for a long time after the Norman Conquest, the\nauthority of the monarch was almost unlimited. Inroads were\ngradually made upon the prerogative, in favor of liberty, first by\nthe barons, and afterwards by the people, till the greatest part of\nits most formidable pretensions became extinct. But it was not till\nthe revolution in 1688, which elevated the Prince of Orange to the\nthrone of Great Britain, that English liberty was completely\ntriumphant. As incident to the undefined power of making war, an\nacknowledged prerogative of the crown, Charles II. had, by his own\nauthority, kept on foot in time of peace a body of 5,000 regular\ntroops. And this number James II. increased to 30,000; who were\npaid out of his civil list. At the revolution, to abolish the\nexercise of so dangerous an authority, it became an article of the\nBill of Rights then framed, that \"the raising or keeping a standing\narmy within 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\npitch, no security against the danger of standing armies was thought\nrequisite, beyond a prohibition of their being raised or kept up by\nthe mere authority of the executive magistrate. The patriots, who\neffected that memorable revolution, were too temperate, too\nwellinformed, to think of any restraint on the legislative\ndiscretion. They were aware that a certain number of troops for\nguards and garrisons were indispensable; that no precise bounds\ncould be set to the national exigencies; that a power equal to\nevery possible contingency must exist somewhere in the government:\nand that when they referred the exercise of that power to the\njudgment of the legislature, they had arrived at the ultimate point\nof precaution which was reconcilable with the safety of the\ncommunity.\n\nFrom the same source, the people of America may be said to have\nderived an hereditary impression of danger to liberty, from standing\narmies in time of peace. The circumstances of a revolution\nquickened the public sensibility on every point connected with the\nsecurity of popular rights, and in some instances raise the warmth\nof our zeal beyond the degree which consisted with the due\ntemperature of the body politic. The attempts of two of the States\nto restrict the authority of the legislature in the article of\nmilitary establishments, are of the number of these instances. The\nprinciples which had taught us to be jealous of the power of an\nhereditary monarch were by an injudicious excess extended to the\nrepresentatives of the people in their popular assemblies. Even in\nsome of the States, where this error was not adopted, we find\nunnecessary declarations that standing armies ought not to be kept\nup, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I\ncall 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\nall, under those constitutions, can by no construction be deemed to\nreside anywhere else, than in the legislatures themselves; and it\nwas superfluous, if not absurd, to declare that a matter should not\nbe done without the consent of a body, which alone had the power of\ndoing it. Accordingly, in some of these constitutions, and among\nothers, in that of this State of New York, which has been justly\ncelebrated, both in Europe and America, as one of the best of the\nforms of government established in this country, there is a total\nsilence 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\nup, but that they OUGHT NOT to be kept up, in time of peace. This\nambiguity of terms appears to have been the result of a conflict\nbetween jealousy and conviction; between the desire of excluding\nsuch establishments at all events, and the persuasion that an\nabsolute exclusion would be unwise and unsafe.\n\nCan it be doubted that such a provision, whenever the situation\nof public affairs was understood to require a departure from it,\nwould be interpreted by the legislature into a mere admonition, and\nwould be made to yield to the necessities or supposed necessities of\nthe State? Let the fact already mentioned, with respect to\nPennsylvania, decide. What then (it may be asked) is the use of\nsuch a provision, if it cease to operate the moment there is an\ninclination to disregard it?\n\nLet us examine whether there be any comparison, in point of\nefficacy, between the provision alluded to and that which is\ncontained in the new Constitution, for restraining the\nappropriations of money for military purposes to the period of two\nyears. The former, by aiming at too much, is calculated to effect\nnothing; the latter, by steering clear of an imprudent extreme, and\nby being perfectly compatible with a proper provision for the\nexigencies of the nation, will have a salutary and powerful\noperation.\n\nThe legislature of the United States will be OBLIGED, by this\nprovision, once at least in every two years, to deliberate upon the\npropriety of keeping a military force on foot; to come to a new\nresolution on the point; and to declare their sense of the matter,\nby a formal vote in the face of their constituents. They are not AT\nLIBERTY to vest in the executive department permanent funds for the\nsupport of an army, if they were even incautious enough to be\nwilling to repose in it so improper a confidence. As the spirit of\nparty, in different degrees, must be expected to infect all\npolitical bodies, there will be, no doubt, persons in the national\nlegislature willing enough to arraign the measures and criminate the\nviews of the majority. The provision for the support of a military\nforce will always be a favorable topic for declamation. As often as\nthe question comes forward, the public attention will be roused and\nattracted to the subject, by the party in opposition; and if the\nmajority should be really disposed to exceed the proper limits, the\ncommunity will be warned of the danger, and will have an opportunity\nof taking measures to guard against it. Independent of parties in\nthe 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\nTIME to mature them for execution. An army, so large as seriously\nto menace those liberties, could only be formed by progressive\naugmentations; which would suppose, not merely a temporary\ncombination between the legislature and executive, but a continued\nconspiracy for a series of time. Is it probable that such a\ncombination would exist at all? Is it probable that it would be\npersevered in, and transmitted along through all the successive\nvariations in a representative body, which biennial elections would\nnaturally produce in both houses? Is it presumable, that every man,\nthe instant he took his seat in the national Senate or House of\nRepresentatives, would commence a traitor to his constituents and to\nhis country? Can it be supposed that there would not be found one\nman, discerning enough to detect so atrocious a conspiracy, or bold\nor honest enough to apprise his constituents of their danger? If\nsuch presumptions can fairly be made, there ought at once to be an\nend of all delegated authority. The people should resolve to recall\nall the powers they have heretofore parted with out of their own\nhands, and to divide themselves into as many States as there are\ncounties, in order that they may be able to manage their own\nconcerns in person.\n\nIf such suppositions could even be reasonably made, still the\nconcealment of the design, for any duration, would be impracticable.\nIt would be announced, by the very circumstance of augmenting the\narmy to so great an extent in time of profound peace. What\ncolorable reason could be assigned, in a country so situated, for\nsuch vast augmentations of the military force? It is impossible\nthat the people could be long deceived; and the destruction of the\nproject, and of the projectors, would quickly follow the discovery.\n\nIt has been said that the provision which limits the\nappropriation of money for the support of an army to the period of\ntwo years would be unavailing, because the Executive, when once\npossessed of a force large enough to awe the people into submission,\nwould find resources in that very force sufficient to enable him to\ndispense with supplies from the acts of the legislature. But the\nquestion again recurs, upon what pretense could he be put in\npossession of a force of that magnitude in time of peace? If we\nsuppose it to have been created in consequence of some domestic\ninsurrection or foreign war, then it becomes a case not within the\nprinciples of the objection; for this is levelled against the power\nof keeping up troops in time of peace. Few persons will be so\nvisionary as seriously to contend that military forces ought not to\nbe raised to quell a rebellion or resist an invasion; and if the\ndefense of the community under such circumstances should make it\nnecessary to have an army so numerous as to hazard its liberty, this\nis one of those calamaties for which there is neither preventative\nnor cure. It cannot be provided against by any possible form of\ngovernment; it might even result from a simple league offensive and\ndefensive, if it should ever be necessary for the confederates or\nallies to form an army for common defense.\n\nBut it is an evil infinitely less likely to attend us in a\nunited than in a disunited state; nay, it may be safely asserted\nthat it is an evil altogether unlikely to attend us in the latter\nsituation. It is not easy to conceive a possibility that dangers so\nformidable can assail the whole Union, as to demand a force\nconsiderable enough to place our liberties in the least jeopardy,\nespecially if we take into our view the aid to be derived from the\nmilitia, which ought always to be counted upon as a valuable and\npowerful auxiliary. But in a state of disunion (as has been fully\nshown in another place), the contrary of this supposition would\nbecome not only probable, but almost unavoidable.\n\nPUBLIUS.\n", "date": null, "title": "The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered", "paper_id": 26, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIT HAS been urged, in different shapes, that a Constitution of\nthe kind proposed by the convention cannot operate without the aid\nof a military force to execute its laws. This, however, like most\nother things that have been alleged on that side, rests on mere\ngeneral assertion, unsupported by any precise or intelligible\ndesignation of the reasons upon which it is founded. As far as I\nhave been able to divine the latent meaning of the objectors, it\nseems to originate in a presupposition that the people will be\ndisinclined to the exercise of federal authority in any matter of an\ninternal nature. Waiving any exception that might be taken to the\ninaccuracy or inexplicitness of the distinction between internal and\nexternal, let us inquire what ground there is to presuppose that\ndisinclination in the people. Unless we presume at the same time\nthat the powers of the general government will be worse administered\nthan those of the State government, there seems to be no room for\nthe presumption of ill-will, disaffection, or opposition in the\npeople. I believe it may be laid down as a general rule that their\nconfidence in and obedience to a government will commonly be\nproportioned to the goodness or badness of its administration. It\nmust be admitted that there are exceptions to this rule; but these\nexceptions depend so entirely on accidental causes, that they cannot\nbe considered as having any relation to the intrinsic merits or\ndemerits of a constitution. These can only be judged of by general\nprinciples and maxims.\n\nVarious reasons have been suggested, in the course of these\npapers, to induce a probability that the general government will be\nbetter administered than the particular governments; the principal\nof which reasons are that the extension of the spheres of election\nwill present a greater option, or latitude of choice, to the people;\nthat through the medium of the State legislatures which are select\nbodies of men, and which are to appoint the members of the national\nSenate there is reason to expect that this branch will generally be\ncomposed with peculiar care and judgment; that these circumstances\npromise greater knowledge and more extensive information in the\nnational councils, and that they will be less apt to be tainted by\nthe spirit of faction, and more out of the reach of those occasional\nill-humors, or temporary prejudices and propensities, which, in\nsmaller societies, frequently contaminate the public councils, beget\ninjustice and oppression of a part of the community, and engender\nschemes which, though they gratify a momentary inclination or\ndesire, terminate in general distress, dissatisfaction, and disgust.\nSeveral additional reasons of considerable force, to fortify that\nprobability, will occur when we come to survey, with a more critical\neye, the interior structure of the edifice which we are invited to\nerect. It will be sufficient here to remark, that until\nsatisfactory reasons can be assigned to justify an opinion, that the\nfederal government is likely to be administered in such a manner as\nto render it odious or contemptible to the people, there can be no\nreasonable foundation for the supposition that the laws of the Union\nwill meet with any greater obstruction from them, or will stand in\nneed of any other methods to enforce their execution, than the laws\nof the particular members.\n\nThe hope of impunity is a strong incitement to sedition; the\ndread of punishment, a proportionably strong discouragement to it.\nWill not the government of the Union, which, if possessed of a due\ndegree of power, can call to its aid the collective resources of the\nwhole Confederacy, be more likely to repress the FORMER sentiment\nand to inspire the LATTER, than that of a single State, which can\nonly command the resources within itself? A turbulent faction in a\nState may easily suppose itself able to contend with the friends to\nthe government in that State; but it can hardly be so infatuated as\nto imagine itself a match for the combined efforts of the Union. If\nthis reflection be just, there is less danger of resistance from\nirregular combinations of individuals to the authority of the\nConfederacy than to that of a single member.\n\nI will, in this place, hazard an observation, which will not be\nthe less just because to some it may appear new; which is, that the\nmore the operations of the national authority are intermingled in\nthe ordinary exercise of government, the more the citizens are\naccustomed to meet with it in the common occurrences of their\npolitical life, the more it is familiarized to their sight and to\ntheir feelings, the further it enters into those objects which touch\nthe most sensible chords and put in motion the most active springs\nof the human heart, the greater will be the probability that it will\nconciliate the respect and attachment of the community. Man is very\nmuch a creature of habit. A thing that rarely strikes his senses\nwill generally have but little influence upon his mind. A\ngovernment continually at a distance and out of sight can hardly be\nexpected to interest the sensations of the people. The inference\nis, that the authority of the Union, and the affections of the\ncitizens towards it, will be strengthened, rather than weakened, by\nits extension to what are called matters of internal concern; and\nwill have less occasion to recur to force, in proportion to the\nfamiliarity and comprehensiveness of its agency. The more it\ncirculates through those channels and currents in which the passions\nof mankind naturally flow, the less will it require the aid of the\nviolent and perilous expedients of compulsion.\n\nOne thing, at all events, must be evident, that a government\nlike the one proposed would bid much fairer to avoid the necessity\nof using force, than that species of league contend for by most of\nits opponents; the authority of which should only operate upon the\nStates in their political or collective capacities. It has been\nshown that in such a Confederacy there can be no sanction for the\nlaws but force; that frequent delinquencies in the members are the\nnatural offspring of the very frame of the government; and that as\noften as these happen, they can only be redressed, if at all, by war\nand violence.\n\nThe plan reported by the convention, by extending the authority\nof the federal head to the individual citizens of the several\nStates, will enable the government to employ the ordinary magistracy\nof each, in the execution of its laws. It is easy to perceive that\nthis will tend to destroy, in the common apprehension, all\ndistinction between the sources from which they might proceed; and\nwill give the federal government the same advantage for securing a\ndue obedience to its authority which is enjoyed by the government of\neach State, in addition to the influence on public opinion which\nwill result from the important consideration of its having power to\ncall to its assistance and support the resources of the whole Union.\nIt merits particular attention in this place, that the laws of the\nConfederacy, as to the ENUMERATED and LEGITIMATE objects of its\njurisdiction, will become the SUPREME LAW of the land; to the\nobservance of which all officers, legislative, executive, and\njudicial, in each State, will be bound by the sanctity of an oath.\nThus the legislatures, courts, and magistrates, of the respective\nmembers, will be incorporated into the operations of the national\ngovernment AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS;\nand will be rendered auxiliary to the enforcement of its laws. [1%]\nAny man who will pursue, by his own reflections, the consequences\nof this situation, will perceive that there is good ground to\ncalculate upon a regular and peaceable execution of the laws of the\nUnion, if its powers are administered with a common share of\nprudence. If we will arbitrarily suppose the contrary, we may\ndeduce any inferences we please from the supposition; for it is\ncertainly possible, by an injudicious exercise of the authorities of\nthe best government that ever was, or ever can be instituted, to\nprovoke and precipitate the people into the wildest excesses. But\nthough the adversaries of the proposed Constitution should presume\nthat the national rulers would be insensible to the motives of\npublic good, or to the obligations of duty, I would still ask them\nhow the interests of ambition, or the views of encroachment, can be\npromoted by such a conduct?\n\nPUBLIUS.\n\n1. The sophistry which has been employed to show that this will\ntend to the destruction of the State governments, will, in its will,\nin its proper place, be fully detected.\n", "date": "Tuesday, December 25, 1787", "title": "The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)", "paper_id": 27, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHAT there may happen cases in which the national government may\nbe necessitated to resort to force, cannot be denied. Our own\nexperience has corroborated the lessons taught by the examples of\nother nations; that emergencies of this sort will sometimes arise\nin all societies, however constituted; that seditions and\ninsurrections are, unhappily, maladies as inseparable from the body\npolitic as tumors and eruptions from the natural body; that the\nidea of governing at all times by the simple force of law (which we\nhave been told is the only admissible principle of republican\ngovernment), has no place but in the reveries of those political\ndoctors whose sagacity disdains the admonitions of experimental\ninstruction.\n\nShould such emergencies at any time happen under the national\ngovernment, there could be no remedy but force. The means to be\nemployed must be proportioned to the extent of the mischief. If it\nshould be a slight commotion in a small part of a State, the militia\nof the residue would be adequate to its suppression; and the\nnational presumption is that they would be ready to do their duty.\nAn insurrection, whatever may be its immediate cause, eventually\nendangers all government. Regard to the public peace, if not to the\nrights of the Union, would engage the citizens to whom the contagion\nhad not communicated itself to oppose the insurgents; and if the\ngeneral government should be found in practice conducive to the\nprosperity and felicity of the people, it were irrational to believe\nthat they would be disinclined to its support.\n\nIf, on the contrary, the insurrection should pervade a whole\nState, or a principal part of it, the employment of a different kind\nof force might become unavoidable. It appears that Massachusetts\nfound it necessary to raise troops for repressing the disorders\nwithin that State; that Pennsylvania, from the mere apprehension of\ncommotions among a part of her citizens, has thought proper to have\nrecourse to the same measure. Suppose the State of New York had\nbeen inclined to re-establish her lost jurisdiction over the\ninhabitants of Vermont, could she have hoped for success in such an\nenterprise from the efforts of the militia alone? Would she not\nhave been compelled to raise and to maintain a more regular force\nfor the execution of her design? If it must then be admitted that\nthe necessity of recurring to a force different from the militia, in\ncases of this extraordinary nature, is applicable to the State\ngovernments 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\nsurprising that men who declare an attachment to the Union in the\nabstract, should urge as an objection to the proposed Constitution\nwhat applies with tenfold weight to the plan for which they contend;\nand what, as far as it has any foundation in truth, is an\ninevitable consequence of civil society upon an enlarged scale? Who\nwould not prefer that possibility to the unceasing agitations and\nfrequent revolutions which are the continual scourges of petty\nrepublics?\n\nLet us pursue this examination in another light. Suppose, in\nlieu of one general system, two, or three, or even four\nConfederacies were to be formed, would not the same difficulty\noppose itself to the operations of either of these Confederacies?\nWould not each of them be exposed to the same casualties; and when\nthese happened, be obliged to have recourse to the same expedients\nfor upholding its authority which are objected to in a government\nfor all the States? Would the militia, in this supposition, be more\nready or more able to support the federal authority than in the case\nof a general union? All candid and intelligent men must, upon due\nconsideration, 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 for\ndifferent parcels of them, or even if there should be an entire\nseparation of the States, there might sometimes be a necessity to\nmake use of a force constituted differently from the militia, to\npreserve the peace of the community and to maintain the just\nauthority of the laws against those violent invasions of them which\namount to insurrections and rebellions.\n\nIndependent of all other reasonings upon the subject, it is a\nfull answer to those who require a more peremptory provision against\nmilitary establishments in time of peace, to say that the whole\npower of the proposed government is to be in the hands of the\nrepresentatives of the people. This is the essential, and, after\nall, only efficacious security for the rights and privileges of the\npeople, which is attainable in civil society. [1]\n\nIf the representatives of the people betray their constituents,\nthere is then no resource left but in the exertion of that original\nright of self-defense which is paramount to all positive forms of\ngovernment, and which against the usurpations of the national\nrulers, may be exerted with infinitely better prospect of success\nthan against those of the rulers of an individual state. In a\nsingle state, if the persons intrusted with supreme power become\nusurpers, the different parcels, subdivisions, or districts of which\nit consists, having no distinct government in each, can take no\nregular measures for defense. The citizens must rush tumultuously\nto arms, without concert, without system, without resource; except\nin their courage and despair. The usurpers, clothed with the forms\nof legal authority, can too often crush the opposition in embryo.\nThe smaller the extent of the territory, the more difficult will it\nbe for the people to form a regular or systematic plan of\nopposition, and the more easy will it be to defeat their early\nefforts. 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\npeculiar coincidence of circumstances to insure success to the\npopular resistance.\n\nThe obstacles to usurpation and the facilities of resistance\nincrease with the increased extent of the state, provided the\ncitizens understand their rights and are disposed to defend them.\nThe natural strength of the people in a large community, in\nproportion to the artificial strength of the government, is greater\nthan in a small, and of course more competent to a struggle with the\nattempts of the government to establish a tyranny. But in a\nconfederacy the people, without exaggeration, may be said to be\nentirely the masters of their own fate. Power being almost always\nthe rival of power, the general government will at all times stand\nready to check the usurpations of the state governments, and these\nwill have the same disposition towards the general government. The\npeople, by throwing themselves into either scale, will infallibly\nmake it preponderate. If their rights are invaded by either, they\ncan make use of the other as the instrument of redress. How wise\nwill it be in them by cherishing the union to preserve to themselves\nan advantage which can never be too highly prized!\n\nIt may safely be received as an axiom in our political system,\nthat the State governments will, in all possible contingencies,\nafford complete security against invasions of the public liberty by\nthe national authority. Projects of usurpation cannot be masked\nunder pretenses so likely to escape the penetration of select bodies\nof men, as of the people at large. The legislatures will have\nbetter means of information. They can discover the danger at a\ndistance; and possessing all the organs of civil power, and the\nconfidence of the people, they can at once adopt a regular plan of\nopposition, in which they can combine all the resources of the\ncommunity. They can readily communicate with each other in the\ndifferent States, and unite their common forces for the protection\nof their common liberty.\n\nThe great extent of the country is a further security. We have\nalready experienced its utility against the attacks of a foreign\npower. And it would have precisely the same effect against the\nenterprises of ambitious rulers in the national councils. If the\nfederal army should be able to quell the resistance of one State,\nthe distant States would have it in their power to make head with\nfresh forces. The advantages obtained in one place must be\nabandoned to subdue the opposition in others; and the moment the\npart which had been reduced to submission was left to itself, its\nefforts would be renewed, and its resistance revive.\n\nWe should recollect that the extent of the military force must,\nat all events, be regulated by the resources of the country. For a\nlong time to come, it will not be possible to maintain a large army;\nand as the means of doing this increase, the population and natural\nstrength of the community will proportionably increase. When will\nthe time arrive that the federal government can raise and maintain\nan army capable of erecting a despotism over the great body of the\npeople of an immense empire, who are in a situation, through the\nmedium of their State governments, to take measures for their own\ndefense, with all the celerity, regularity, and system of\nindependent nations? The apprehension may be considered as a\ndisease, for which there can be found no cure in the resources of\nargument and reasoning.\n\nPUBLIUS.\n\n1. Its full efficacy will be examined hereafter.\n", "date": null, "title": "The Same Subject Continued (The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered)", "paper_id": 28, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE power of regulating the militia, and of commanding its\nservices in times of insurrection and invasion are natural incidents\nto the duties of superintending the common defense, and of watching\nover the internal peace of the Confederacy.\n\nIt requires no skill in the science of war to discern that\nuniformity in the organization and discipline of the militia would\nbe attended with the most beneficial effects, whenever they were\ncalled into service for the public defense. It would enable them to\ndischarge the duties of the camp and of the field with mutual\nintelligence and concert an advantage of peculiar moment in the\noperations of an army; and it would fit them much sooner to acquire\nthe degree of proficiency in military functions which would be\nessential to their usefulness. This desirable uniformity can only\nbe accomplished by confiding the regulation of the militia to the\ndirection of the national authority. It is, therefore, with the\nmost evident propriety, that the plan of the convention proposes to\nempower the Union \"to provide for organizing, arming, and\ndisciplining the militia, and for governing such part of them as may\nbe employed in the service of the United States, RESERVING TO THE\nSTATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE\nAUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE\nPRESCRIBED BY CONGRESS.\"\n\nOf the different grounds which have been taken in opposition to\nthe plan of the convention, there is none that was so little to have\nbeen expected, or is so untenable in itself, as the one from which\nthis particular provision has been attacked. If a well-regulated\nmilitia be the most natural defense of a free country, it ought\ncertainly to be under the regulation and at the disposal of that\nbody which is constituted the guardian of the national security. If\nstanding armies are dangerous to liberty, an efficacious power over\nthe militia, in the body to whose care the protection of the State\nis committed, ought, as far as possible, to take away the inducement\nand the pretext to such unfriendly institutions. If the federal\ngovernment can command the aid of the militia in those emergencies\nwhich call for the military arm in support of the civil magistrate,\nit can the better dispense with the employment of a different kind\nof force. If it cannot avail itself of the former, it will be\nobliged to recur to the latter. To render an army unnecessary, will\nbe a more certain method of preventing its existence than a thousand\nprohibitions upon paper.\n\nIn order to cast an odium upon the power of calling forth the\nmilitia to execute the laws of the Union, it has been remarked that\nthere is nowhere any provision in the proposed Constitution for\ncalling out the POSSE COMITATUS, to assist the magistrate in the\nexecution of his duty, whence it has been inferred, that military\nforce was intended to be his only auxiliary. There is a striking\nincoherence in the objections which have appeared, and sometimes\neven from the same quarter, not much calculated to inspire a very\nfavorable opinion of the sincerity or fair dealing of their authors.\nThe same persons who tell us in one breath, that the powers of the\nfederal government will be despotic and unlimited, inform us in the\nnext, that it has not authority sufficient even to call out the\nPOSSE COMITATUS. The latter, fortunately, is as much short of the\ntruth as the former exceeds it. It would be as absurd to doubt,\nthat a right to pass all laws NECESSARY AND PROPER to execute its\ndeclared 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\nwould involve that of varying the rules of descent and of the\nalienation of landed property, or of abolishing the trial by jury in\ncases relating to it. It being therefore evident that the\nsupposition of a want of power to require the aid of the POSSE\nCOMITATUS is entirely destitute of color, it will follow, that the\nconclusion which has been drawn from it, in its application to the\nauthority of the federal government over the militia, is as uncandid\nas it is illogical. What reason could there be to infer, that force\nwas intended to be the sole instrument of authority, merely because\nthere is a power to make use of it when necessary? What shall we\nthink of the motives which could induce men of sense to reason in\nthis manner? How shall we prevent a conflict between charity and\njudgment?\n\nBy a curious refinement upon the spirit of republican jealousy,\nwe are even taught to apprehend danger from the militia itself, in\nthe hands of the federal government. It is observed that select\ncorps may be formed, composed of the young and ardent, who may be\nrendered subservient to the views of arbitrary power. What plan for\nthe regulation of the militia may be pursued by the national\ngovernment, is impossible to be foreseen. But so far from viewing\nthe matter in the same light with those who object to select corps\nas dangerous, were the Constitution ratified, and were I to deliver\nmy sentiments to a member of the federal legislature from this State\non the subject of a militia establishment, I should hold to him, in\nsubstance, the following discourse:\n\n\"The project of disciplining all the militia of the United\nStates is as futile as it would be injurious, if it were capable of\nbeing carried into execution. A tolerable expertness in military\nmovements is a business that requires time and practice. It is not\na day, or even a week, that will suffice for the attainment of it.\nTo oblige the great body of the yeomanry, and of the other classes\nof the citizens, to be under arms for the purpose of going through\nmilitary exercises and evolutions, as often as might be necessary to\nacquire the degree of perfection which would entitle them to the\ncharacter of a well-regulated militia, would be a real grievance to\nthe people, and a serious public inconvenience and loss. It would\nform an annual deduction from the productive labor of the country,\nto an amount which, calculating upon the present numbers of the\npeople, would not fall far short of the whole expense of the civil\nestablishments of all the States. To attempt a thing which would\nabridge the mass of labor and industry to so considerable an extent,\nwould be unwise: and the experiment, if made, could not succeed,\nbecause it would not long be endured. Little more can reasonably be\naimed at, with respect to the people at large, than to have them\nproperly armed and equipped; and in order to see that this be not\nneglected, 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\nthe utmost importance that a well-digested plan should, as soon as\npossible, be adopted for the proper establishment of the militia.\nThe attention of the government ought particularly to be directed\nto the formation of a select corps of moderate extent, upon such\nprinciples as will really fit them for service in case of need. By\nthus circumscribing the plan, it will be possible to have an\nexcellent body of well-trained militia, ready to take the field\nwhenever the defense of the State shall require it. This will not\nonly lessen the call for military establishments, but if\ncircumstances should at any time oblige the government to form an\narmy of any magnitude that army can never be formidable to the\nliberties of the people while there is a large body of citizens,\nlittle, if at all, inferior to them in discipline and the use of\narms, who stand ready to defend their own rights and those of their\nfellow-citizens. This appears to me the only substitute that can be\ndevised for a standing army, and the best possible security against\nit, if it should exist.\"\n\nThus differently from the adversaries of the proposed\nConstitution should I reason on the same subject, deducing arguments\nof safety from the very sources which they represent as fraught with\ndanger and perdition. But how the national legislature may reason\non the point, is a thing which neither they nor I can foresee.\n\nThere is something so far-fetched and so extravagant in the idea\nof danger to liberty from the militia, that one is at a loss whether\nto treat it with gravity or with raillery; whether to consider it\nas a mere trial of skill, like the paradoxes of rhetoricians; as a\ndisingenuous artifice to instil prejudices at any price; or as the\nserious offspring of political fanaticism. Where in the name of\ncommon-sense, are our fears to end if we may not trust our sons, our\nbrothers, our neighbors, our fellow-citizens? What shadow of danger\ncan there be from men who are daily mingling with the rest of their\ncountrymen and who participate with them in the same feelings,\nsentiments, habits and interests? What reasonable cause of\napprehension can be inferred from a power in the Union to prescribe\nregulations for the militia, and to command its services when\nnecessary, while the particular States are to have the SOLE AND\nEXCLUSIVE 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\nalways secure to them a preponderating influence over the militia.\n\nIn reading many of the publications against the Constitution, a\nman is apt to imagine that he is perusing some ill-written tale or\nromance, which instead of natural and agreeable images, exhibits to\nthe mind nothing but frightful and distorted shapes \"Gorgons, hydras,\nand chimeras dire\"; discoloring and disfiguring whatever it represents,\nand transforming everything it touches into a monster.\n\nA sample of this is to be observed in the exaggerated and\nimprobable suggestions which have taken place respecting the power\nof calling for the services of the militia. That of New Hampshire\nis to be marched to Georgia, of Georgia to New Hampshire, of New\nYork to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts\ndue to the French and Dutch are to be paid in militiamen instead of\nlouis d'ors and ducats. At one moment there is to be a large army\nto lay prostrate the liberties of the people; at another moment the\nmilitia of Virginia are to be dragged from their homes five or six\nhundred miles, to tame the republican contumacy of Massachusetts;\nand that of Massachusetts is to be transported an equal distance to\nsubdue the refractory haughtiness of the aristocratic Virginians.\nDo the persons who rave at this rate imagine that their art or\ntheir 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\ndespotism, what need of the militia? If there should be no army,\nwhither would the militia, irritated by being called upon to\nundertake a distant and hopeless expedition, for the purpose of\nriveting the chains of slavery upon a part of their countrymen,\ndirect their course, but to the seat of the tyrants, who had\nmeditated so foolish as well as so wicked a project, to crush them\nin their imagined intrenchments of power, and to make them an\nexample of the just vengeance of an abused and incensed people? Is\nthis the way in which usurpers stride to dominion over a numerous\nand enlightened nation? Do they begin by exciting the detestation\nof the very instruments of their intended usurpations? Do they\nusually commence their career by wanton and disgustful acts of\npower, calculated to answer no end, but to draw upon themselves\nuniversal hatred and execration? Are suppositions of this sort the\nsober admonitions of discerning patriots to a discerning people? Or\nare they the inflammatory ravings of incendiaries or distempered\nenthusiasts? If we were even to suppose the national rulers\nactuated by the most ungovernable ambition, it is impossible to\nbelieve that they would employ such preposterous means to accomplish\ntheir designs.\n\nIn times of insurrection, or invasion, it would be natural and\nproper that the militia of a neighboring State should be marched\ninto another, to resist a common enemy, or to guard the republic\nagainst the violence of faction or sedition. This was frequently\nthe case, in respect to the first object, in the course of the late\nwar; and this mutual succor is, indeed, a principal end of our\npolitical association. If the power of affording it be placed under\nthe direction of the Union, there will be no danger of a supine and\nlistless inattention to the dangers of a neighbor, till its near\napproach had superadded the incitements of selfpreservation to the\ntoo feeble impulses of duty and sympathy.\n\nPUBLIUS.\n", "date": "Thursday, January 10, 1788", "title": "Concerning the Militia", "paper_id": 29, "venue": "From the Daily Advertiser"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIT HAS been already observed that the federal government ought\nto possess the power of providing for the support of the national\nforces; in which proposition was intended to be included the\nexpense of raising troops, of building and equipping fleets, and all\nother expenses in any wise connected with military arrangements and\noperations. But these are not the only objects to which the\njurisdiction of the Union, in respect to revenue, must necessarily\nbe empowered to extend. It must embrace a provision for the support\nof the national civil list; for the payment of the national debts\ncontracted, or that may be contracted; and, in general, for all\nthose matters which will call for disbursements out of the national\ntreasury. The conclusion is, that there must be interwoven, in the\nframe of the government, a general power of taxation, in one shape\nor another.\n\nMoney is, with propriety, considered as the vital principle of\nthe body politic; as that which sustains its life and motion, and\nenables it to perform its most essential functions. A complete\npower, therefore, to procure a regular and adequate supply of it, as\nfar as the resources of the community will permit, may be regarded\nas an indispensable ingredient in every constitution. From a\ndeficiency in this particular, one of two evils must ensue; either\nthe people must be subjected to continual plunder, as a substitute\nfor a more eligible mode of supplying the public wants, or the\ngovernment must sink into a fatal atrophy, and, in a short course of\ntime, perish.\n\nIn the Ottoman or Turkish empire, the sovereign, though in other\nrespects absolute master of the lives and fortunes of his subjects,\nhas no right to impose a new tax. The consequence is that he\npermits the bashaws or governors of provinces to pillage the people\nwithout mercy; and, in turn, squeezes out of them the sums of which\nhe stands in need, to satisfy his own exigencies and those of the\nstate. In America, from a like cause, the government of the Union\nhas gradually dwindled into a state of decay, approaching nearly to\nannihilation. Who can doubt, that the happiness of the people in\nboth countries would be promoted by competent authorities in the\nproper hands, to provide the revenues which the necessities of the\npublic might require?\n\nThe present Confederation, feeble as it is intended to repose in\nthe United States, an unlimited power of providing for the pecuniary\nwants of the Union. But proceeding upon an erroneous principle, it\nhas been done in such a manner as entirely to have frustrated the\nintention. Congress, by the articles which compose that compact (as\nhas already been stated), are authorized to ascertain and call for\nany sums of money necessary, in their judgment, to the service of\nthe United States; and their requisitions, if conformable to the\nrule of apportionment, are in every constitutional sense obligatory\nupon the States. These have no right to question the propriety of\nthe demand; no discretion beyond that of devising the ways and\nmeans of furnishing the sums demanded. But though this be strictly\nand truly the case; though the assumption of such a right would be\nan infringement of the articles of Union; though it may seldom or\nnever have been avowedly claimed, yet in practice it has been\nconstantly exercised, and would continue to be so, as long as the\nrevenues of the Confederacy should remain dependent on the\nintermediate agency of its members. What the consequences of this\nsystem have been, is within the knowledge of every man the least\nconversant in our public affairs, and has been amply unfolded in\ndifferent parts of these inquiries. It is this which has chiefly\ncontributed to reduce us to a situation, which affords ample cause\nboth of mortification to ourselves, and of triumph to our enemies.\n\nWhat remedy can there be for this situation, but in a change of\nthe system which has produced it in a change of the fallacious and\ndelusive system of quotas and requisitions? What substitute can\nthere be imagined for this ignis fatuus in finance, but that of\npermitting the national government to raise its own revenues by the\nordinary methods of taxation authorized in every well-ordered\nconstitution of civil government? Ingenious men may declaim with\nplausibility on any subject; but no human ingenuity can point out\nany other expedient to rescue us from the inconveniences and\nembarrassments naturally resulting from defective supplies of the\npublic treasury.\n\nThe more intelligent adversaries of the new Constitution admit\nthe force of this reasoning; but they qualify their admission by a\ndistinction between what they call INTERNAL and EXTERNAL taxation.\nThe former they would reserve to the State governments; the\nlatter, which they explain into commercial imposts, or rather duties\non imported articles, they declare themselves willing to concede to\nthe federal head. This distinction, however, would violate the\nmaxim of good sense and sound policy, which dictates that every\nPOWER ought to be in proportion to its OBJECT; and would still\nleave the general government in a kind of tutelage to the State\ngovernments, inconsistent with every idea of vigor or efficiency.\nWho can pretend that commercial imposts are, or would be, alone\nequal to the present and future exigencies of the Union? Taking\ninto the account the existing debt, foreign and domestic, upon any\nplan of extinguishment which a man moderately impressed with the\nimportance of public justice and public credit could approve, in\naddition to the establishments which all parties will acknowledge to\nbe necessary, we could not reasonably flatter ourselves, that this\nresource alone, upon the most improved scale, would even suffice for\nits present necessities. Its future necessities admit not of\ncalculation or limitation; and upon the principle, more than once\nadverted to, the power of making provision for them as they arise\nought to be equally unconfined. I believe it may be regarded as a\nposition warranted by the history of mankind, that, IN THE USUAL\nPROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF\nITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.\n\nTo say that deficiencies may be provided for by requisitions\nupon the States, is on the one hand to acknowledge that this system\ncannot be depended upon, and on the other hand to depend upon it for\nevery thing beyond a certain limit. Those who have carefully\nattended to its vices and deformities as they have been exhibited by\nexperience or delineated in the course of these papers, must feel\ninvincible repugnancy to trusting the national interests in any\ndegree to its operation. Its inevitable tendency, whenever it is\nbrought into activity, must be to enfeeble the Union, and sow the\nseeds of discord and contention between the federal head and its\nmembers, and between the members themselves. Can it be expected\nthat the deficiencies would be better supplied in this mode than the\ntotal wants of the Union have heretofore been supplied in the same\nmode? It ought to be recollected that if less will be required from\nthe States, they will have proportionably less means to answer the\ndemand. If the opinions of those who contend for the distinction\nwhich has been mentioned were to be received as evidence of truth,\none would be led to conclude that there was some known point in the\neconomy 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\nsupplying the wants of government, and all beyond this is unworthy\nof our care or anxiety. How is it possible that a government half\nsupplied and always necessitous, can fulfill the purposes of its\ninstitution, can provide for the security, advance the prosperity,\nor support the reputation of the commonwealth? How can it ever\npossess either energy or stability, dignity or credit, confidence at\nhome or respectability abroad? How can its administration be any\nthing else than a succession of expedients temporizing, impotent,\ndisgraceful? How will it be able to avoid a frequent sacrifice of\nits engagements to immediate necessity? How can it undertake or\nexecute any liberal or enlarged plans of public good?\n\nLet us attend to what would be the effects of this situation in\nthe very first war in which we should happen to be engaged. We will\npresume, for argument's sake, that the revenue arising from the\nimpost duties answers the purposes of a provision for the public\ndebt and of a peace establishment for the Union. Thus\ncircumstanced, a war breaks out. What would be the probable conduct\nof the government in such an emergency? Taught by experience that\nproper dependence could not be placed on the success of\nrequisitions, unable by its own authority to lay hold of fresh\nresources, and urged by considerations of national danger, would it\nnot be driven to the expedient of diverting the funds already\nappropriated from their proper objects to the defense of the State?\nIt is not easy to see how a step of this kind could be avoided;\nand if it should be taken, it is evident that it would prove the\ndestruction of public credit at the very moment that it was becoming\nessential to the public safety. To imagine that at such a crisis\ncredit might be dispensed with, would be the extreme of infatuation.\nIn the modern system of war, nations the most wealthy are obliged\nto have recourse to large loans. A country so little opulent as\nours must feel this necessity in a much stronger degree. But who\nwould lend to a government that prefaced its overtures for borrowing\nby an act which demonstrated that no reliance could be placed on the\nsteadiness of its measures for paying? The loans it might be able\nto procure would be as limited in their extent as burdensome in\ntheir conditions. They would be made upon the same principles that\nusurers commonly lend to bankrupt and fraudulent debtors, with a\nsparing hand and at enormous premiums.\n\nIt may perhaps be imagined that, from the scantiness of the\nresources of the country, the necessity of diverting the established\nfunds in the case supposed would exist, though the national\ngovernment should possess an unrestrained power of taxation. But\ntwo considerations will serve to quiet all apprehension on this\nhead: one is, that we are sure the resources of the community, in\ntheir full extent, will be brought into activity for the benefit of\nthe Union; the other is, that whatever deficiences there may be,\ncan without difficulty be supplied by loans.\n\nThe power of creating new funds upon new objects of taxation, by\nits own authority, would enable the national government to borrow as\nfar as its necessities might require. Foreigners, as well as the\ncitizens of America, could then reasonably repose confidence in its\nengagements; but to depend upon a government that must itself\ndepend upon thirteen other governments for the means of fulfilling\nits contracts, when once its situation is clearly understood, would\nrequire a degree of credulity not often to be met with in the\npecuniary transactions of mankind, and little reconcilable with the\nusual sharp-sightedness of avarice.\n\nReflections of this kind may have trifling weight with men who\nhope to see realized in America the halcyon scenes of the poetic or\nfabulous age; but to those who believe we are likely to experience\na common portion of the vicissitudes and calamities which have\nfallen to the lot of other nations, they must appear entitled to\nserious attention. Such men must behold the actual situation of\ntheir country with painful solicitude, and deprecate the evils which\nambition or revenge might, with too much facility, inflict upon it.\n\nPUBLIUS.\n", "date": "Friday, December 28, 1787", "title": "Concerning the General Power of Taxation", "paper_id": 30, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIN DISQUISITIONS of every kind, there are certain primary\ntruths, or first principles, upon which all subsequent reasonings\nmust depend. These contain an internal evidence which, antecedent\nto all reflection or combination, commands the assent of the mind.\nWhere it produces not this effect, it must proceed either from some\ndefect or disorder in the organs of perception, or from the\ninfluence of some strong interest, or passion, or prejudice. Of\nthis nature are the maxims in geometry, that \"the whole is greater\nthan its part; things equal to the same are equal to one another;\ntwo straight lines cannot enclose a space; and all right angles\nare equal to each other.\" Of the same nature are these other\nmaxims in ethics and politics, that there cannot be an effect\nwithout a cause; that the means ought to be proportioned to the\nend; that every power ought to be commensurate with its object;\nthat there ought to be no limitation of a power destined to effect\na purpose which is itself incapable of limitation. And there are\nother truths in the two latter sciences which, if they cannot\npretend to rank in the class of axioms, are yet such direct\ninferences from them, and so obvious in themselves, and so agreeable\nto the natural and unsophisticated dictates of common-sense, that\nthey challenge the assent of a sound and unbiased mind, with a\ndegree of force and conviction almost equally irresistible.\n\nThe objects of geometrical inquiry are so entirely abstracted\nfrom those pursuits which stir up and put in motion the unruly\npassions of the human heart, that mankind, without difficulty, adopt\nnot only the more simple theorems of the science, but even those\nabstruse paradoxes which, however they may appear susceptible of\ndemonstration, are at variance with the natural conceptions which\nthe mind, without the aid of philosophy, would be led to entertain\nupon the subject. The INFINITE DIVISIBILITY of matter, or, in other\nwords, the INFINITE divisibility of a FINITE thing, extending even\nto the minutest atom, is a point agreed among geometricians, though\nnot less incomprehensible to common-sense than any of those\nmysteries in religion, against which the batteries of infidelity\nhave been so industriously leveled.\n\nBut in the sciences of morals and politics, men are found far\nless tractable. To a certain degree, it is right and useful that\nthis should be the case. Caution and investigation are a necessary\narmor against error and imposition. But this untractableness may be\ncarried too far, and may degenerate into obstinacy, perverseness, or\ndisingenuity. Though it cannot be pretended that the principles of\nmoral and political knowledge have, in general, the same degree of\ncertainty with those of the mathematics, yet they have much better\nclaims in this respect than, to judge from the conduct of men in\nparticular situations, we should be disposed to allow them. The\nobscurity is much oftener in the passions and prejudices of the\nreasoner than in the subject. Men, upon too many occasions, do not\ngive their own understandings fair play; but, yielding to some\nuntoward bias, they entangle themselves in words and confound\nthemselves in subtleties.\n\nHow else could it happen (if we admit the objectors to be\nsincere in their opposition), that positions so clear as those which\nmanifest the necessity of a general power of taxation in the\ngovernment of the Union, should have to encounter any adversaries\namong men of discernment? Though these positions have been\nelsewhere fully stated, they will perhaps not be improperly\nrecapitulated in this place, as introductory to an examination of\nwhat may have been offered by way of objection to them. They are in\nsubstance as follows:\n\nA government ought to contain in itself every power requisite to\nthe full accomplishment of the objects committed to its care, and to\nthe complete execution of the trusts for which it is responsible,\nfree from every other control but a regard to the public good and to\nthe sense of the people.\n\nAs the duties of superintending the national defense and of\nsecuring the public peace against foreign or domestic violence\ninvolve a provision for casualties and dangers to which no possible\nlimits can be assigned, the power of making that provision ought to\nknow no other bounds than the exigencies of the nation and the\nresources of the community.\n\nAs revenue is the essential engine by which the means of\nanswering the national exigencies must be procured, the power of\nprocuring that article in its full extent must necessarily be\ncomprehended in that of providing for those exigencies.\n\nAs theory and practice conspire to prove that the power of\nprocuring revenue is unavailing when exercised over the States in\ntheir collective capacities, the federal government must of\nnecessity be invested with an unqualified power of taxation in the\nordinary modes.\n\nDid not experience evince the contrary, it would be natural to\nconclude that the propriety of a general power of taxation in the\nnational government might safely be permitted to rest on the\nevidence of these propositions, unassisted by any additional\narguments or illustrations. But we find, in fact, that the\nantagonists of the proposed Constitution, so far from acquiescing in\ntheir justness or truth, seem to make their principal and most\nzealous effort against this part of the plan. It may therefore be\nsatisfactory to analyze the arguments with which they combat it.\n\nThose of them which have been most labored with that view, seem\nin substance to amount to this: \"It is not true, because the\nexigencies of the Union may not be susceptible of limitation, that\nits power of laying taxes ought to be unconfined. Revenue is as\nrequisite to the purposes of the local administrations as to those\nof the Union; and the former are at least of equal importance with\nthe latter to the happiness of the people. It is, therefore, as\nnecessary that the State governments should be able to command the\nmeans of supplying their wants, as that the national government\nshould possess the like faculty in respect to the wants of the Union.\nBut an indefinite power of taxation in the LATTER might, and\nprobably would in time, deprive the FORMER of the means of providing\nfor their own necessities; and would subject them entirely to the\nmercy 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\nall laws that may be NECESSARY for carrying into execution the\nauthorities with which it is proposed to vest it, the national\ngovernment might at any time abolish the taxes imposed for State\nobjects upon the pretense of an interference with its own. It might\nallege a necessity of doing this in order to give efficacy to the\nnational revenues. And thus all the resources of taxation might by\ndegrees become the subjects of federal monopoly, to the entire\nexclusion and destruction of the State governments.\"\n\nThis mode of reasoning appears sometimes to turn upon the\nsupposition of usurpation in the national government; at other\ntimes it seems to be designed only as a deduction from the\nconstitutional operation of its intended powers. It is only in the\nlatter light that it can be admitted to have any pretensions to\nfairness. The moment we launch into conjectures about the\nusurpations of the federal government, we get into an unfathomable\nabyss, and fairly put ourselves out of the reach of all reasoning.\nImagination may range at pleasure till it gets bewildered amidst\nthe labyrinths of an enchanted castle, and knows not on which side\nto turn to extricate itself from the perplexities into which it has\nso rashly adventured. Whatever may be the limits or modifications\nof the powers of the Union, it is easy to imagine an endless train\nof possible dangers; and by indulging an excess of jealousy and\ntimidity, we may bring ourselves to a state of absolute scepticism\nand irresolution. I repeat here what I have observed in substance\nin another place, that all observations founded upon the danger of\nusurpation ought to be referred to the composition and structure of\nthe government, not to the nature or extent of its powers. The\nState governments, by their original constitutions, are invested\nwith complete sovereignty. In what does our security consist\nagainst usurpation from that quarter? Doubtless in the manner of\ntheir formation, and in a due dependence of those who are to\nadminister them upon the people. If the proposed construction of\nthe federal government be found, upon an impartial examination of\nit, to be such as to afford, to a proper extent, the same species of\nsecurity, all apprehensions on the score of usurpation ought to be\ndiscarded.\n\nIt should not be forgotten that a disposition in the State\ngovernments to encroach upon the rights of the Union is quite as\nprobable as a disposition in the Union to encroach upon the rights\nof the State governments. What side would be likely to prevail in\nsuch a conflict, must depend on the means which the contending\nparties could employ toward insuring success. As in republics\nstrength is always on the side of the people, and as there are\nweighty reasons to induce a belief that the State governments will\ncommonly possess most influence over them, the natural conclusion is\nthat such contests will be most apt to end to the disadvantage of\nthe Union; and that there is greater probability of encroachments\nby the members upon the federal head, than by the federal head upon\nthe members. But it is evident that all conjectures of this kind\nmust be extremely vague and fallible: and that it is by far the\nsafest course to lay them altogether aside, and to confine our\nattention wholly to the nature and extent of the powers as they are\ndelineated in the Constitution. Every thing beyond this must be\nleft to the prudence and firmness of the people; who, as they will\nhold the scales in their own hands, it is to be hoped, will always\ntake care to preserve the constitutional equilibrium between the\ngeneral and the State governments. Upon this ground, which is\nevidently the true one, it will not be difficult to obviate the\nobjections which have been made to an indefinite power of taxation\nin the United States.\n\nPUBLIUS.\n", "date": "Tuesday, January 1, 1788", "title": "The Same Subject Continued (Concerning the General Power of Taxation)", "paper_id": 31, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nALTHOUGH I am of opinion that there would be no real danger of\nthe consequences which seem to be apprehended to the State\ngovernments from a power in the Union to control them in the levies\nof money, because I am persuaded that the sense of the people, the\nextreme hazard of provoking the resentments of the State\ngovernments, and a conviction of the utility and necessity of local\nadministrations for local purposes, would be a complete barrier\nagainst the oppressive use of such a power; yet I am willing here\nto allow, in its full extent, the justness of the reasoning which\nrequires that the individual States should possess an independent\nand uncontrollable authority to raise their own revenues for the\nsupply of their own wants. And making this concession, I affirm\nthat (with the sole exception of duties on imports and exports) they\nwould, under the plan of the convention, retain that authority in\nthe most absolute and unqualified sense; and that an attempt on the\npart of the national government to abridge them in the exercise of\nit, would be a violent assumption of power, unwarranted by any\narticle or clause of its Constitution.\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\nclearly retain all the rights of sovereignty which they before had,\nand which were not, by that act, EXCLUSIVELY delegated to the United\nStates. This exclusive delegation, or rather this alienation, of\nState sovereignty, would only exist in three cases: where the\nConstitution in express terms granted an exclusive authority to the\nUnion; where it granted in one instance an authority to the Union,\nand in another prohibited the States from exercising the like\nauthority; and where it granted an authority to the Union, to which\na similar authority in the States would be absolutely and totally\nCONTRADICTORY and REPUGNANT. I use these terms to distinguish this\nlast case from another which might appear to resemble it, but which\nwould, in fact, be essentially different; I mean where the exercise\nof 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\njurisdiction in the federal government may be exemplified by the\nfollowing instances: The last clause but one in the eighth section\nof the first article provides expressly that Congress shall exercise\n\"EXCLUSIVE LEGISLATION\" over the district to be appropriated as\nthe seat of government. This answers to the first case. The first\nclause of the same section empowers Congress \"TO LAY AND COLLECT\nTAXES, DUTIES, IMPOSTS AND EXCISES\"; and the second clause of the\ntenth section of the same article declares that, \"NO STATE SHALL,\nwithout the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON\nIMPORTS OR EXPORTS, except for the purpose of executing its\ninspection laws.\" Hence would result an exclusive power in the\nUnion to lay duties on imports and exports, with the particular\nexception mentioned; but this power is abridged by another clause,\nwhich declares that no tax or duty shall be laid on articles\nexported from any State; in consequence of which qualification, it\nnow only extends to the DUTIES ON IMPORTS. This answers to the\nsecond case. The third will be found in that clause which declares\nthat Congress shall have power \"to establish an UNIFORM RULE of\nnaturalization throughout the United States.\" This must\nnecessarily 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\nwhich is in fact widely different, affects the question immediately\nunder consideration. I mean the power of imposing taxes on all\narticles other than exports and imports. This, I contend, is\nmanifestly a concurrent and coequal authority in the United States\nand in the individual States. There is plainly no expression in the\ngranting clause which makes that power EXCLUSIVE in the Union.\nThere is no independent clause or sentence which prohibits the\nStates from exercising it. So far is this from being the case, that\na plain and conclusive argument to the contrary is to be deduced\nfrom the restraint laid upon the States in relation to duties on\nimports and exports. This restriction implies an admission that, if\nit were not inserted, the States would possess the power it\nexcludes; and it implies a further admission, that as to all other\ntaxes, the authority of the States remains undiminished. In any\nother view it would be both unnecessary and dangerous; it would be\nunnecessary, because if the grant to the Union of the power of\nlaying such duties implied the exclusion of the States, or even\ntheir subordination in this particular, there could be no need of\nsuch a restriction; it would be dangerous, because the introduction\nof it leads directly to the conclusion which has been mentioned, and\nwhich, if the reasoning of the objectors be just, could not have\nbeen intended; I mean that the States, in all cases to which the\nrestriction did not apply, would have a concurrent power of taxation\nwith the Union. The restriction in question amounts to what lawyers\ncall a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an\nAFFIRMANCE of another; a negation of the authority of the States to\nimpose 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\nthe imposition of taxes of the former kind, and to leave them at\nliberty to lay others SUBJECT TO THE CONTROL of the national\nlegislature. The restraining or prohibitory clause only says, that\nthey shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties;\nand if we are to understand this in the sense last mentioned, the\nConstitution would then be made to introduce a formal provision for\nthe sake of a very absurd conclusion; which is, that the States,\nWITH THE CONSENT of the national legislature, might tax imports and\nexports; and that they might tax every other article, UNLESS\nCONTROLLED by the same body. If this was the intention, why not\nleave it, in the first instance, to what is alleged to be the\nnatural operation of the original clause, conferring a general power\nof taxation upon the Union? It is evident that this could not have\nbeen 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\nin the States and in the Union, it cannot be supported in that sense\nwhich would be requisite to work an exclusion of the States. It is,\nindeed, possible that a tax might be laid on a particular article by\na State which might render it INEXPEDIENT that thus a further tax\nshould be laid on the same article by the Union; but it would not\nimply a constitutional inability to impose a further tax. The\nquantity of the imposition, the expediency or inexpediency of an\nincrease on either side, would be mutually questions of prudence;\nbut there would be involved no direct contradiction of power. The\nparticular policy of the national and of the State systems of\nfinance might now and then not exactly coincide, and might require\nreciprocal forbearances. It is not, however a mere possibility of\ninconvenience in the exercise of powers, but an immediate\nconstitutional repugnancy that can by implication alienate and\nextinguish a pre-existing right of sovereignty.\n\nThe necessity of a concurrent jurisdiction in certain cases\nresults from the division of the sovereign power; and the rule that\nall authorities, of which the States are not explicitly divested in\nfavor of the Union, remain with them in full vigor, is not a\ntheoretical consequence of that division, but is clearly admitted by\nthe whole tenor of the instrument which contains the articles of the\nproposed Constitution. We there find that, notwithstanding the\naffirmative grants of general authorities, there has been the most\npointed care in those cases where it was deemed improper that the\nlike authorities should reside in the States, to insert negative\nclauses prohibiting the exercise of them by the States. The tenth\nsection of the first article consists altogether of such provisions.\nThis circumstance is a clear indication of the sense of the\nconvention, and furnishes a rule of interpretation out of the body\nof the act, which justifies the position I have advanced and refutes\nevery hypothesis to the contrary.\n\nPUBLIUS.\n", "date": "Thursday, January 3, 1788", "title": "The Same Subject Continued (Concerning the General Power of Taxation)", "paper_id": 32, "venue": "From the Daily Advertiser"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE residue of the argument against the provisions of the\nConstitution in respect to taxation is ingrafted upon the following\nclause. The last clause of the eighth section of the first article\nof the plan under consideration authorizes the national legislature\n\"to make all laws which shall be NECESSARY and PROPER for carrying\ninto execution THE POWERS by that Constitution vested in the\ngovernment of the United States, or in any department or officer\nthereof\"; and the second clause of the sixth article declares,\n\"that the Constitution and the laws of the United States made IN\nPURSUANCE THEREOF, and the treaties made by their authority shall be\nthe SUPREME LAW of the land, any thing in the constitution or laws\nof any State to the contrary notwithstanding.\"\n\nThese two clauses have been the source of much virulent\ninvective and petulant declamation against the proposed Constitution.\nThey have been held up to the people in all the exaggerated colors\nof misrepresentation as the pernicious engines by which their local\ngovernments were to be destroyed and their liberties exterminated;\nas the hideous monster whose devouring jaws would spare neither sex\nnor age, nor high nor low, nor sacred nor profane; and yet, strange\nas it may appear, after all this clamor, to those who may not have\nhappened to contemplate them in the same light, it may be affirmed\nwith perfect confidence that the constitutional operation of the\nintended government would be precisely the same, if these clauses\nwere entirely obliterated, as if they were repeated in every article.\nThey are only declaratory of a truth which would have resulted by\nnecessary and unavoidable implication from the very act of\nconstituting a federal government, and vesting it with certain\nspecified powers. This is so clear a proposition, that moderation\nitself can scarcely listen to the railings which have been so\ncopiously vented against this part of the plan, without emotions\nthat disturb its equanimity.\n\nWhat is a power, but the ability or faculty of doing a thing?\nWhat is the ability to do a thing, but the power of employing the\nMEANS necessary to its execution? What is a LEGISLATIVE power, but\na power of making LAWS? What are the MEANS to execute a LEGISLATIVE\npower but LAWS? What is the power of laying and collecting taxes,\nbut a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and\ncollect taxes? What are the proper means of executing such a power,\nbut NECESSARY and PROPER laws?\n\nThis simple train of inquiry furnishes us at once with a test by\nwhich to judge of the true nature of the clause complained of. It\nconducts us to this palpable truth, that a power to lay and collect\ntaxes must be a power to pass all laws NECESSARY and PROPER for the\nexecution of that power; and what does the unfortunate and\nculumniated provision in question do more than declare the same\ntruth, to wit, that the national legislature, to whom the power of\nlaying and collecting taxes had been previously given, might, in the\nexecution of that power, pass all laws NECESSARY and PROPER to carry\nit into effect? I have applied these observations thus particularly\nto the power of taxation, because it is the immediate subject under\nconsideration, and because it is the most important of the\nauthorities proposed to be conferred upon the Union. But the same\nprocess will lead to the same result, in relation to all other\npowers declared in the Constitution. And it is EXPRESSLY to execute\nthese powers that the sweeping clause, as it has been affectedly\ncalled, authorizes the national legislature to pass all NECESSARY\nand PROPER laws. If there is any thing exceptionable, it must be\nsought for in the specific powers upon which this general\ndeclaration is predicated. The declaration itself, though it may be\nchargeable with tautology or redundancy, is at least perfectly\nharmless.\n\nBut SUSPICION may ask, Why then was it introduced? The answer\nis, that it could only have been done for greater caution, and to\nguard against all cavilling refinements in those who might hereafter\nfeel a disposition to curtail and evade the legitimate authorities\nof the Union. The Convention probably foresaw, what it has been a\nprincipal aim of these papers to inculcate, that the danger which\nmost threatens our political welfare is that the State governments\nwill finally sap the foundations of the Union; and might therefore\nthink it necessary, in so cardinal a point, to leave nothing to\nconstruction. Whatever may have been the inducement to it, the\nwisdom of the precaution is evident from the cry which has been\nraised against it; as that very cry betrays a disposition to\nquestion the great and essential truth which it is manifestly the\nobject 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\nfully upon the simple grant of those powers as upon the declaratory\nclause; and I answer, in the second place, that the national\ngovernment, like every other, must judge, in the first instance, of\nthe proper exercise of its powers, and its constituents in the last.\nIf the federal government should overpass the just bounds of its\nauthority and make a tyrannical use of its powers, the people, whose\ncreature it is, must appeal to the standard they have formed, and\ntake such measures to redress the injury done to the Constitution as\nthe exigency may suggest and prudence justify. The propriety of a\nlaw, in a constitutional light, must always be determined by the\nnature of the powers upon which it is founded. Suppose, by some\nforced constructions of its authority (which, indeed, cannot easily\nbe imagined), the Federal legislature should attempt to vary the law\nof descent in any State, would it not be evident that, in making\nsuch an attempt, it had exceeded its jurisdiction, and infringed\nupon that of the State? Suppose, again, that upon the pretense of\nan interference with its revenues, it should undertake to abrogate a\nlandtax imposed by the authority of a State; would it not be\nequally evident that this was an invasion of that concurrent\njurisdiction in respect to this species of tax, which its\nConstitution plainly supposes to exist in the State governments? If\nthere ever should be a doubt on this head, the credit of it will be\nentirely due to those reasoners who, in the imprudent zeal of their\nanimosity to the plan of the convention, have labored to envelop it\nin a cloud calculated to obscure the plainest and simplest truths.\n\nBut it is said that the laws of the Union are to be the SUPREME\nLAW of the land. But what inference can be drawn from this, or what\nwould they amount to, if they were not to be supreme? It is evident\nthey would amount to nothing. A LAW, by the very meaning of the\nterm, includes supremacy. It is a rule which those to whom it is\nprescribed are bound to observe. This results from every political\nassociation. If individuals enter into a state of society, the laws\nof that society must be the supreme regulator of their conduct. If\na number of political societies enter into a larger political\nsociety, the laws which the latter may enact, pursuant to the powers\nintrusted to it by its constitution, must necessarily be supreme\nover those societies, and the individuals of whom they are composed.\nIt would otherwise be a mere treaty, dependent on the good faith of\nthe parties, and not a government, which is only another word for\nPOLITICAL POWER AND SUPREMACY. But it will not follow from this\ndoctrine that acts of the large society which are NOT PURSUANT to\nits constitutional powers, but which are invasions of the residuary\nauthorities of the smaller societies, will become the supreme law of\nthe land. These will be merely acts of usurpation, and will deserve\nto be treated as such. Hence we perceive that the clause which\ndeclares the supremacy of the laws of the Union, like the one we\nhave 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\nthe convention; since that limitation would have been to be\nunderstood, though it had not been expressed.\n\nThough a law, therefore, laying a tax for the use of the United\nStates would be supreme in its nature, and could not legally be\nopposed or controlled, yet a law for abrogating or preventing the\ncollection of a tax laid by the authority of the State, (unless upon\nimports and exports), would not be the supreme law of the land, but\na usurpation of power not granted by the Constitution. As far as an\nimproper accumulation of taxes on the same object might tend to\nrender the collection difficult or precarious, this would be a\nmutual inconvenience, not arising from a superiority or defect of\npower on either side, but from an injudicious exercise of power by\none or the other, in a manner equally disadvantageous to both. It\nis to be hoped and presumed, however, that mutual interest would\ndictate a concert in this respect which would avoid any material\ninconvenience. The inference from the whole is, that the individual\nStates would, under the proposed Constitution, retain an independent\nand uncontrollable authority to raise revenue to any extent of which\nthey may stand in need, by every kind of taxation, except duties on\nimports and exports. It will be shown in the next paper that this\nCONCURRENT JURISDICTION in the article of taxation was the only\nadmissible substitute for an entire subordination, in respect to\nthis branch of power, of the State authority to that of the Union.\n\nPUBLIUS.\n", "date": "January 3, 1788", "title": "The Same Subject Continued (Concerning the General Power of Taxation)", "paper_id": 33, "venue": "From the Daily Advertiser"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nI FLATTER myself it has been clearly shown in my last number\nthat the particular States, under the proposed Constitution, would\nhave COEQUAL authority with the Union in the article of revenue,\nexcept as to duties on imports. As this leaves open to the States\nfar the greatest part of the resources of the community, there can\nbe no color for the assertion that they would not possess means as\nabundant as could be desired for the supply of their own wants,\nindependent of all external control. That the field is sufficiently\nwide will more fully appear when we come to advert to the\ninconsiderable share of the public expenses for which it will fall\nto the lot of the State governments to provide.\n\nTo argue upon abstract principles that this co-ordinate\nauthority cannot exist, is to set up supposition and theory against\nfact and reality. However proper such reasonings might be to show\nthat a thing OUGHT NOT TO EXIST, they are wholly to be rejected when\nthey are made use of to prove that it does not exist contrary to the\nevidence of the fact itself. It is well known that in the Roman\nrepublic the legislative authority, in the last resort, resided for\nages in two different political bodies not as branches of the same\nlegislature, but as distinct and independent legislatures, in each\nof which an opposite interest prevailed: in one the patrician; in\nthe other, the plebian. Many arguments might have been adduced to\nprove the unfitness of two such seemingly contradictory authorities,\neach having power to ANNUL or REPEAL the acts of the other. But a\nman would have been regarded as frantic who should have attempted at\nRome to disprove their existence. It will be readily understood\nthat I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA.\nThe former, in which the people voted by centuries, was so arranged\nas to give a superiority to the patrician interest; in the latter,\nin which numbers prevailed, the plebian interest had an entire\npredominancy. And yet these two legislatures coexisted for ages,\nand the Roman republic attained to the utmost height of human\ngreatness.\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\nis little reason to apprehend any inconvenience; because, in a\nshort course of time, the wants of the States will naturally reduce\nthemselves within A VERY NARROW COMPASS; and in the interim, the\nUnited States will, in all probability, find it convenient to\nabstain wholly from those objects to which the particular States\nwould be inclined to resort.\n\nTo form a more precise judgment of the true merits of this\nquestion, it will be well to advert to the proportion between the\nobjects that will require a federal provision in respect to revenue,\nand those which will require a State provision. We shall discover\nthat the former are altogether unlimited, and that the latter are\ncircumscribed within very moderate bounds. In pursuing this\ninquiry, we must bear in mind that we are not to confine our view to\nthe present period, but to look forward to remote futurity.\nConstitutions of civil government are not to be framed upon a\ncalculation of existing exigencies, but upon a combination of these\nwith the probable exigencies of ages, according to the natural and\ntried course of human affairs. Nothing, therefore, can be more\nfallacious than to infer the extent of any power, proper to be\nlodged in the national government, from an estimate of its immediate\nnecessities. There ought to be a CAPACITY to provide for future\ncontingencies as they may happen; and as these are illimitable in\ntheir nature, it is impossible safely to limit that capacity. It is\ntrue, perhaps, that a computation might be made with sufficient\naccuracy to answer the purpose of the quantity of revenue requisite\nto discharge the subsisting engagements of the Union, and to\nmaintain those establishments which, for some time to come, would\nsuffice in time of peace. But would it be wise, or would it not\nrather be the extreme of folly, to stop at this point, and to leave\nthe government intrusted with the care of the national defense in a\nstate of absolute incapacity to provide for the protection of the\ncommunity against future invasions of the public peace, by foreign\nwar or domestic convulsions? If, on the contrary, we ought to\nexceed this point, where can we stop, short of an indefinite power\nof providing for emergencies as they may arise? Though it is easy\nto assert, in general terms, the possibility of forming a rational\njudgment of a due provision against probable dangers, yet we may\nsafely challenge those who make the assertion to bring forward their\ndata, and may affirm that they would be found as vague and uncertain\nas any that could be produced to establish the probable duration of\nthe world. Observations confined to the mere prospects of internal\nattacks can deserve no weight; though even these will admit of no\nsatisfactory calculation: but if we mean to be a commercial people,\nit must form a part of our policy to be able one day to defend that\ncommerce. The support of a navy and of naval wars would involve\ncontingencies that must baffle all the efforts of political\narithmetic.\n\nAdmitting that we ought to try the novel and absurd experiment\nin politics of tying up the hands of government from offensive war\nfounded upon reasons of state, yet certainly we ought not to disable\nit from guarding the community against the ambition or enmity of\nother nations. A cloud has been for some time hanging over the\nEuropean world. If it should break forth into a storm, who can\ninsure us that in its progress a part of its fury would not be spent\nupon us? No reasonable man would hastily pronounce that we are\nentirely out of its reach. Or if the combustible materials that now\nseem to be collecting should be dissipated without coming to\nmaturity, or if a flame should be kindled without extending to us,\nwhat security can we have that our tranquillity will long remain\nundisturbed from some other cause or from some other quarter? Let\nus recollect that peace or war will not always be left to our\noption; that however moderate or unambitious we may be, we cannot\ncount upon the moderation, or hope to extinguish the ambition of\nothers. Who could have imagined at the conclusion of the last war\nthat France and Britain, wearied and exhausted as they both were,\nwould so soon have looked with so hostile an aspect upon each other?\nTo judge from the history of mankind, we shall be compelled to\nconclude that the fiery and destructive passions of war reign in the\nhuman breast with much more powerful sway than the mild and\nbeneficent sentiments of peace; and that to model our political\nsystems upon speculations of lasting tranquillity, is to calculate\non the weaker springs of the human character.\n\nWhat are the chief sources of expense in every government? What\nhas occasioned that enormous accumulation of debts with which\nseveral of the European nations are oppressed? The answers plainly\nis, wars and rebellions; the support of those institutions which\nare necessary to guard the body politic against these two most\nmortal diseases of society. The expenses arising from those\ninstitutions which are relative to the mere domestic police of a\nstate, to the support of its legislative, executive, and judicial\ndepartments, with their different appendages, and to the\nencouragement of agriculture and manufactures (which will comprehend\nalmost all the objects of state expenditure), are insignificant in\ncomparison with those which relate to the national defense.\n\nIn the kingdom of Great Britain, where all the ostentatious\napparatus of monarchy is to be provided for, not above a fifteenth\npart of the annual income of the nation is appropriated to the class\nof expenses last mentioned; the other fourteen fifteenths are\nabsorbed in the payment of the interest of debts contracted for\ncarrying on the wars in which that country has been engaged, and in\nthe maintenance of fleets and armies. If, on the one hand, it\nshould be observed that the expenses incurred in the prosecution of\nthe ambitious enterprises and vainglorious pursuits of a monarchy\nare not a proper standard by which to judge of those which might be\nnecessary in a republic, it ought, on the other hand, to be remarked\nthat there should be as great a disproportion between the profusion\nand extravagance of a wealthy kingdom in its domestic\nadministration, and the frugality and economy which in that\nparticular become the modest simplicity of republican government.\nIf we balance a proper deduction from one side against that which\nit is supposed ought to be made from the other, the proportion may\nstill be considered as holding good.\n\nBut let us advert to the large debt which we have ourselves\ncontracted in a single war, and let us only calculate on a common\nshare of the events which disturb the peace of nations, and we shall\ninstantly perceive, without the aid of any elaborate illustration,\nthat there must always be an immense disproportion between the\nobjects of federal and state expenditures. It is true that several\nof the States, separately, are encumbered with considerable debts,\nwhich are an excrescence of the late war. But this cannot happen\nagain, if the proposed system be adopted; and when these debts are\ndischarged, the only call for revenue of any consequence, which the\nState governments will continue to experience, will be for the mere\nsupport of their respective civil list; to which, if we add all\ncontingencies, the total amount in every State ought to fall\nconsiderably short of two hundred thousand pounds.\n\nIn framing a government for posterity as well as ourselves, we\nought, in those provisions which are designed to be permanent, to\ncalculate, not on temporary, but on permanent causes of expense. If\nthis principle be a just one our attention would be directed to a\nprovision in favor of the State governments for an annual sum of\nabout two hundred thousand pounds; while the exigencies of the\nUnion could be susceptible of no limits, even in imagination. In\nthis view of the subject, by what logic can it be maintained that\nthe local governments ought to command, in perpetuity, an EXCLUSIVE\nsource of revenue for any sum beyond the extent of two hundred\nthousand pounds? To extend its power further, in EXCLUSION of the\nauthority of the Union, would be to take the resources of the\ncommunity out of those hands which stood in need of them for the\npublic welfare, in order to put them into other hands which could\nhave no just or proper occasion for them.\n\nSuppose, then, the convention had been inclined to proceed upon\nthe principle of a repartition of the objects of revenue, between\nthe Union and its members, in PROPORTION to their comparative\nnecessities; what particular fund could have been selected for the\nuse of the States, that would not either have been too much or too\nlittle too little for their present, too much for their future\nwants? As to the line of separation between external and internal\ntaxes, this would leave to the States, at a rough computation, the\ncommand of two thirds of the resources of the community to defray\nfrom a tenth to a twentieth part of its expenses; and to the Union,\none third of the resources of the community, to defray from nine\ntenths to nineteen twentieths of its expenses. If we desert this\nboundary and content ourselves with leaving to the States an\nexclusive power of taxing houses and lands, there would still be a\ngreat disproportion between the MEANS and the END; the possession\nof one third of the resources of the community to supply, at most,\none tenth of its wants. If any fund could have been selected and\nappropriated, equal to and not greater than the object, it would\nhave been inadequate to the discharge of the existing debts of the\nparticular States, and would have left them dependent on the Union\nfor a provision for this purpose.\n\nThe preceding train of observation will justify the position\nwhich has been elsewhere laid down, that \"A CONCURRENT JURISDICTION\nin the article of taxation was the only admissible substitute for an\nentire subordination, in respect to this branch of power, of State\nauthority to that of the Union.\" Any separation of the objects of\nrevenue that could have been fallen upon, would have amounted to a\nsacrifice of the great INTERESTS of the Union to the POWER of the\nindividual States. The convention thought the concurrent\njurisdiction preferable to that subordination; and it is evident\nthat it has at least the merit of reconciling an indefinite\nconstitutional power of taxation in the Federal government with an\nadequate and independent power in the States to provide for their\nown necessities. There remain a few other lights, in which this\nimportant subject of taxation will claim a further consideration.\n\nPUBLIUS.\n", "date": "Friday, January 4, 1788", "title": "The Same Subject Continued (Concerning the General Power of Taxation)", "paper_id": 34, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nBEFORE we proceed to examine any other objections to an\nindefinite power of taxation in the Union, I shall make one general\nremark; which is, that if the jurisdiction of the national\ngovernment, in the article of revenue, should be restricted to\nparticular objects, it would naturally occasion an undue proportion\nof the public burdens to fall upon those objects. Two evils would\nspring from this source: the oppression of particular branches of\nindustry; and an unequal distribution of the taxes, as well among\nthe several States as among the citizens of the same State.\n\nSuppose, as has been contended for, the federal power of\ntaxation were to be confined to duties on imports, it is evident\nthat the government, for want of being able to command other\nresources, would frequently be tempted to extend these duties to an\ninjurious excess. There are persons who imagine that they can never\nbe carried to too great a length; since the higher they are, the\nmore it is alleged they will tend to discourage an extravagant\nconsumption, to produce a favorable balance of trade, and to promote\ndomestic manufactures. But all extremes are pernicious in various\nways. Exorbitant duties on imported articles would beget a general\nspirit 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\nthe manufacturing classes, to whom they give a premature monopoly of\nthe markets; they sometimes force industry out of its more natural\nchannels into others in which it flows with less advantage; and in\nthe last place, they oppress the merchant, who is often obliged to\npay them himself without any retribution from the consumer. When\nthe demand is equal to the quantity of goods at market, the consumer\ngenerally pays the duty; but when the markets happen to be\noverstocked, a great proportion falls upon the merchant, and\nsometimes not only exhausts his profits, but breaks in upon his\ncapital. I am apt to think that a division of the duty, between the\nseller and the buyer, more often happens than is commonly imagined.\nIt is not always possible to raise the price of a commodity in\nexact proportion to every additional imposition laid upon it. The\nmerchant, especially in a country of small commercial capital, is\noften under a necessity of keeping prices down in order to a more\nexpeditious sale.\n\nThe maxim that the consumer is the payer, is so much oftener\ntrue than the reverse of the proposition, that it is far more\nequitable that the duties on imports should go into a common stock,\nthan that they should redound to the exclusive benefit of the\nimporting States. But it is not so generally true as to render it\nequitable, that those duties should form the only national fund.\nWhen they are paid by the merchant they operate as an additional\ntax upon the importing State, whose citizens pay their proportion of\nthem in the character of consumers. In this view they are\nproductive of inequality among the States; which inequality would\nbe increased with the increased extent of the duties. The\nconfinement of the national revenues to this species of imposts\nwould be attended with inequality, from a different cause, between\nthe manufacturing and the non-manufacturing States. The States\nwhich can go farthest towards the supply of their own wants, by\ntheir own manufactures, will not, according to their numbers or\nwealth, consume so great a proportion of imported articles as those\nStates which are not in the same favorable situation. They would\nnot, therefore, in this mode alone contribute to the public treasury\nin a ratio to their abilities. To make them do this it is necessary\nthat recourse be had to excises, the proper objects of which are\nparticular kinds of manufactures. New York is more deeply\ninterested in these considerations than such of her citizens as\ncontend for limiting the power of the Union to external taxation may\nbe aware of. New York is an importing State, and is not likely\nspeedily to be, to any great extent, a manufacturing State. She\nwould, 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\nimport duties being extended to an injurious extreme it may be\nobserved, conformably to a remark made in another part of these\npapers, that the interest of the revenue itself would be a\nsufficient guard against such an extreme. I readily admit that this\nwould be the case, as long as other resources were open; but if the\navenues to them were closed, HOPE, stimulated by necessity, would\nbeget experiments, fortified by rigorous precautions and additional\npenalties, which, for a time, would have the intended effect, till\nthere had been leisure to contrive expedients to elude these new\nprecautions. The first success would be apt to inspire false\nopinions, 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\nnot be a consequence of the limitation of the federal power of\ntaxation, the inequalities spoken of would still ensue, though not\nin the same degree, from the other causes that have been noticed.\nLet us now return to the examination of objections.\n\nOne which, if we may judge from the frequency of its repetition,\nseems most to be relied on, is, that the House of Representatives is\nnot sufficiently numerous for the reception of all the different\nclasses of citizens, in order to combine the interests and feelings\nof every part of the community, and to produce a due sympathy\nbetween the representative body and its constituents. This argument\npresents itself under a very specious and seducing form; and is\nwell calculated to lay hold of the prejudices of those to whom it is\naddressed. But when we come to dissect it with attention, it will\nappear to be made up of nothing but fair-sounding words. The object\nit seems to aim at is, in the first place, impracticable, and in the\nsense in which it is contended for, is unnecessary. I reserve for\nanother place the discussion of the question which relates to the\nsufficiency of the representative body in respect to numbers, and\nshall content myself with examining here the particular use which\nhas been made of a contrary supposition, in reference to the\nimmediate subject of our inquiries.\n\nThe idea of an actual representation of all classes of the\npeople, by persons of each class, is altogether visionary. Unless\nit were expressly provided in the Constitution, that each different\noccupation should send one or more members, the thing would never\ntake place in practice. Mechanics and manufacturers will always be\ninclined, with few exceptions, to give their votes to merchants, in\npreference to persons of their own professions or trades. Those\ndiscerning citizens are well aware that the mechanic and\nmanufacturing arts furnish the materials of mercantile enterprise\nand industry. Many of them, indeed, are immediately connected with\nthe operations of commerce. They know that the merchant is their\nnatural patron and friend; and they are aware, that however great\nthe confidence they may justly feel in their own good sense, their\ninterests can be more effectually promoted by the merchant than by\nthemselves. They are sensible that their habits in life have not\nbeen such as to give them those acquired endowments, without which,\nin a deliberative assembly, the greatest natural abilities are for\nthe most part useless; and that the influence and weight, and\nsuperior acquirements of the merchants render them more equal to a\ncontest with any spirit which might happen to infuse itself into the\npublic councils, unfriendly to the manufacturing and trading\ninterests. These considerations, and many others that might be\nmentioned prove, and experience confirms it, that artisans and\nmanufacturers will commonly be disposed to bestow their votes upon\nmerchants and those whom they recommend. We must therefore consider\nmerchants as the natural representatives of all these classes of the\ncommunity.\n\nWith regard to the learned professions, little need be observed;\nthey truly form no distinct interest in society, and according to\ntheir situation 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\npolitical view, and particularly in relation to taxes, I take to be\nperfectly united, from the wealthiest landlord down to the poorest\ntenant. No tax can be laid on land which will not affect the\nproprietor of millions of acres as well as the proprietor of a\nsingle acre. Every landholder will therefore have a common interest\nto keep the taxes on land as low as possible; and common interest\nmay always be reckoned upon as the surest bond of sympathy. But if\nwe even could suppose a distinction of interest between the opulent\nlandholder and the middling farmer, what reason is there to\nconclude, that the first would stand a better chance of being\ndeputed to the national legislature than the last? If we take fact\nas our guide, and look into our own senate and assembly, we shall\nfind that moderate proprietors of land prevail in both; nor is this\nless the case in the senate, which consists of a smaller number,\nthan in the assembly, which is composed of a greater number. Where\nthe qualifications of the electors are the same, whether they have\nto choose a small or a large number, their votes will fall upon\nthose in whom they have most confidence; whether these happen to be\nmen of large fortunes, or of moderate property, or of no property at\nall.\n\nIt is said to be necessary, that all classes of citizens should\nhave some of their own number in the representative body, in order\nthat their feelings and interests may be the better understood and\nattended to. But we have seen that this will never happen under any\narrangement that leaves the votes of the people free. Where this is\nthe case, the representative body, with too few exceptions to have\nany influence on the spirit of the government, will be composed of\nlandholders, merchants, and men of the learned professions. But\nwhere is the danger that the interests and feelings of the different\nclasses of citizens will not be understood or attended to by these\nthree descriptions of men? Will not the landholder know and feel\nwhatever will promote or insure the interest of landed property?\nAnd will he not, from his own interest in that species of property,\nbe sufficiently prone to resist every attempt to prejudice or\nencumber it? Will not the merchant understand and be disposed to\ncultivate, as far as may be proper, the interests of the mechanic\nand manufacturing arts, to which his commerce is so nearly allied?\nWill not the man of the learned profession, who will feel a\nneutrality to the rivalships between the different branches of\nindustry, be likely to prove an impartial arbiter between them,\nready to promote either, so far as it shall appear to him conducive\nto the general interests of the society?\n\nIf we take into the account the momentary humors or dispositions\nwhich may happen to prevail in particular parts of the society, and\nto which a wise administration will never be inattentive, is the man\nwhose situation leads to extensive inquiry and information less\nlikely to be a competent judge of their nature, extent, and\nfoundation than one whose observation does not travel beyond the\ncircle of his neighbors and acquaintances? Is it not natural that a\nman who is a candidate for the favor of the people, and who is\ndependent on the suffrages of his fellow-citizens for the\ncontinuance of his public honors, should take care to inform himself\nof their dispositions and inclinations, and should be willing to\nallow them their proper degree of influence upon his conduct? This\ndependence, and the necessity of being bound himself, and his\nposterity, by the laws to which he gives his assent, are the true,\nand they are the strong chords of sympathy between the\nrepresentative and the constituent.\n\nThere is no part of the administration of government that\nrequires extensive information and a thorough knowledge of the\nprinciples of political economy, so much as the business of taxation.\nThe man who understands those principles best will be least likely\nto resort to oppressive expedients, or sacrifice any particular\nclass of citizens to the procurement of revenue. It might be\ndemonstrated that the most productive system of finance will always\nbe the least burdensome. There can be no doubt that in order to a\njudicious exercise of the power of taxation, it is necessary that\nthe person in whose hands it should be acquainted with the general\ngenius, habits, and modes of thinking of the people at large, and\nwith the resources of the country. And this is all that can be\nreasonably meant by a knowledge of the interests and feelings of the\npeople. In any other sense the proposition has either no meaning,\nor an absurd one. And in that sense let every considerate citizen\njudge for himself where the requisite qualification is most likely\nto be found.\n\nPUBLIUS.\n", "date": null, "title": "The Same Subject Continued (Concerning the General Power of Taxation)", "paper_id": 35, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nWE HAVE seen that the result of the observations, to which the\nforegoing number has been principally devoted, is, that from the\nnatural operation of the different interests and views of the\nvarious classes of the community, whether the representation of the\npeople be more or less numerous, it will consist almost entirely of\nproprietors of land, of merchants, and of members of the learned\nprofessions, who will truly represent all those different interests\nand views. If it should be objected that we have seen other\ndescriptions of men in the local legislatures, I answer that it is\nadmitted there are exceptions to the rule, but not in sufficient\nnumber to influence the general complexion or character of the\ngovernment. There are strong minds in every walk of life that will\nrise superior to the disadvantages of situation, and will command\nthe tribute due to their merit, not only from the classes to which\nthey particularly belong, but from the society in general. The door\nought to be equally open to all; and I trust, for the credit of\nhuman nature, that we shall see examples of such vigorous plants\nflourishing in the soil of federal as well as of State legislation;\nbut occasional instances of this sort will not render the reasoning\nfounded upon the general course of things, less conclusive.\n\nThe subject might be placed in several other lights that would\nall lead to the same result; and in particular it might be asked,\nWhat greater affinity or relation of interest can be conceived\nbetween the carpenter and blacksmith, and the linen manufacturer or\nstocking weaver, than between the merchant and either of them? It\nis notorious that there are often as great rivalships between\ndifferent branches of the mechanic or manufacturing arts as there\nare between any of the departments of labor and industry; so that,\nunless the representative body were to be far more numerous than\nwould be consistent with any idea of regularity or wisdom in its\ndeliberations, it is impossible that what seems to be the spirit of\nthe objection we have been considering should ever be realized in\npractice. But I forbear to dwell any longer on a matter which has\nhitherto worn too loose a garb to admit even of an accurate\ninspection of its real shape or tendency.\n\nThere is another objection of a somewhat more precise nature\nthat claims our attention. It has been asserted that a power of\ninternal taxation in the national legislature could never be\nexercised with advantage, as well from the want of a sufficient\nknowledge of local circumstances, as from an interference between\nthe revenue laws of the Union and of the particular States. The\nsupposition of a want of proper knowledge seems to be entirely\ndestitute of foundation. If any question is depending in a State\nlegislature respecting one of the counties, which demands a\nknowledge of local details, how is it acquired? No doubt from the\ninformation of the members of the county. Cannot the like knowledge\nbe obtained in the national legislature from the representatives of\neach State? And is it not to be presumed that the men who will\ngenerally be sent there will be possessed of the necessary degree of\nintelligence to be able to communicate that information? Is the\nknowledge of local circumstances, as applied to taxation, a minute\ntopographical acquaintance with all the mountains, rivers, streams,\nhighways, and bypaths in each State; or is it a general\nacquaintance with its situation and resources, with the state of its\nagriculture, commerce, manufactures, with the nature of its products\nand consumptions, with the different degrees and kinds of its\nwealth, property, and industry?\n\nNations in general, even under governments of the more popular\nkind, usually commit the administration of their finances to single\nmen or to boards composed of a few individuals, who digest and\nprepare, in the first instance, the plans of taxation, which are\nafterwards passed into laws by the authority of the sovereign or\nlegislature.\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\nmankind can have weight in the question, of the species of knowledge\nof local circumstances requisite to the purposes of taxation.\n\nThe taxes intended to be comprised under the general\ndenomination of internal taxes may be subdivided into those of the\nDIRECT and those of the INDIRECT kind. Though the objection be made\nto both, yet the reasoning upon it seems to be confined to the\nformer branch. And indeed, as to the latter, by which must be\nunderstood duties and excises on articles of consumption, one is at\na loss to conceive what can be the nature of the difficulties\napprehended. The knowledge relating to them must evidently be of a\nkind that will either be suggested by the nature of the article\nitself, or can easily be procured from any well-informed man,\nespecially 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\nthing to be attended to, would be to avoid those articles which had\nbeen previously appropriated to the use of a particular State; and\nthere could be no difficulty in ascertaining the revenue system of\neach. This could always be known from the respective codes of laws,\nas well as from the information of the members from the several\nStates.\n\nThe objection, when applied to real property or to houses and\nlands, appears to have, at first sight, more foundation, but even in\nthis view it will not bear a close examination. Land taxes are co\nmonly laid in one of two modes, either by ACTUAL valuations,\npermanent or periodical, or by OCCASIONAL assessments, at the\ndiscretion, or according to the best judgment, of certain officers\nwhose duty it is to make them. In either case, the EXECUTION of the\nbusiness, which alone requires the knowledge of local details, must\nbe devolved upon discreet persons in the character of commissioners\nor assessors, elected by the people or appointed by the government\nfor the purpose. All that the law can do must be to name the\npersons or to prescribe the manner of their election or appointment,\nto fix their numbers and qualifications and to draw the general\noutlines of their powers and duties. And what is there in all this\nthat cannot as well be performed by the national legislature as by a\nState legislature? The attention of either can only reach to\ngeneral principles; local details, as already observed, must be\nreferred to those who are to execute the plan.\n\nBut there is a simple point of view in which this matter may be\nplaced that must be altogether satisfactory. The national\nlegislature can make use of the SYSTEM OF EACH STATE WITHIN THAT\nSTATE. The method of laying and collecting this species of taxes in\neach State can, in all its parts, be adopted and employed by the\nfederal government.\n\nLet it be recollected that the proportion of these taxes is not\nto be left to the discretion of the national legislature, but is to\nbe determined by the numbers of each State, as described in the\nsecond section of the first article. An actual census or\nenumeration of the people must furnish the rule, a circumstance\nwhich effectually shuts the door to partiality or oppression. The\nabuse of this power of taxation seems to have been provided against\nwith guarded circumspection. In addition to the precaution just\nmentioned, there is a provision that \"all duties, imposts, and\nexcises shall be UNIFORM throughout the United States.\"\n\nIt has been very properly observed by different speakers and\nwriters on the side of the Constitution, that if the exercise of the\npower of internal taxation by the Union should be discovered on\nexperiment to be really inconvenient, the federal government may\nthen forbear the use of it, and have recourse to requisitions in its\nstead. By way of answer to this, it has been triumphantly asked,\nWhy not in the first instance omit that ambiguous power, and rely\nupon the latter resource? Two solid answers may be given. The\nfirst is, that the exercise of that power, if convenient, will be\npreferable, because it will be more effectual; and it is impossible\nto prove in theory, or otherwise than by the experiment, that it\ncannot be advantageously exercised. The contrary, indeed, appears\nmost probable. The second answer is, that the existence of such a\npower in the Constitution will have a strong influence in giving\nefficacy to requisitions. When the States know that the Union can\napply 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\nsense, interfere with each other; and it is far from impossible to\navoid an interference even in the policy of their different systems.\nAn effectual expedient for this purpose will be, mutually, to\nabstain from those objects which either side may have first had\nrecourse to. As neither can CONTROL the other, each will have an\nobvious and sensible interest in this reciprocal forbearance. And\nwhere there is an IMMEDIATE common interest, we may safely count\nupon its operation. When the particular debts of the States are\ndone away, and their expenses come to be limited within their\nnatural compass, the possibility almost of interference will vanish.\nA small land tax will answer the purpose of the States, and will be\ntheir most simple and most fit resource.\n\nMany spectres have been raised out of this power of internal\ntaxation, to excite the apprehensions of the people: double sets of\nrevenue officers, a duplication of their burdens by double\ntaxations, and the frightful forms of odious and oppressive\npoll-taxes, have been played off with all the ingenious dexterity of\npolitical legerdemain.\n\nAs to the first point, there are two cases in which there can be\nno room for double sets of officers: one, where the right of\nimposing the tax is exclusively vested in the Union, which applies\nto the duties on imports; the other, where the object has not\nfallen under any State regulation or provision, which may be\napplicable to a variety of objects. In other cases, the probability\nis that the United States will either wholly abstain from the\nobjects preoccupied for local purposes, or will make use of the\nState officers and State regulations for collecting the additional\nimposition. This will best answer the views of revenue, because it\nwill 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\nevils predicted to not necessarily result from the plan.\n\nAs to any argument derived from a supposed system of influence,\nit is a sufficient answer to say that it ought not to be presumed;\nbut the supposition is susceptible of a more precise answer. If\nsuch a spirit should infest the councils of the Union, the most\ncertain road to the accomplishment of its aim would be to employ the\nState officers as much as possible, and to attach them to the Union\nby an accumulation of their emoluments. This would serve to turn\nthe tide of State influence into the channels of the national\ngovernment, instead of making federal influence flow in an opposite\nand adverse current. But all suppositions of this kind are\ninvidious, and ought to be banished from the consideration of the\ngreat question before the people. They can answer no other end than\nto cast a mist over the truth.\n\nAs to the suggestion of double taxation, the answer is plain.\nThe wants of the Union are to be supplied in one way or another;\nif to be done by the authority of the federal government, it will\nnot be to be done by that of the State government. The quantity of\ntaxes to be paid by the community must be the same in either case;\nwith this advantage, if the provision is to be made by the\nUnion that the capital resource of commercial imposts, which is the\nmost convenient branch of revenue, can be prudently improved to a\nmuch greater extent under federal than under State regulation, and\nof course will render it less necessary to recur to more\ninconvenient methods; and with this further advantage, that as far\nas there may be any real difficulty in the exercise of the power of\ninternal taxation, it will impose a disposition to greater care in\nthe choice and arrangement of the means; and must naturally tend to\nmake it a fixed point of policy in the national administration to go\nas far as may be practicable in making the luxury of the rich\ntributary to the public treasury, in order to diminish the necessity\nof those impositions which might create dissatisfaction in the\npoorer and most numerous classes of the society. Happy it is when\nthe interest which the government has in the preservation of its own\npower, coincides with a proper distribution of the public burdens,\nand tends to guard the least wealthy part of the community from\noppression!\n\nAs to poll taxes, I, without scruple, confess my disapprobation\nof them; and though they have prevailed from an early period in\nthose States [1] which have uniformly been the most tenacious of\ntheir rights, I should lament to see them introduced into practice\nunder the national government. But does it follow because there is\na power to lay them that they will actually be laid? Every State in\nthe Union has power to impose taxes of this kind; and yet in\nseveral of them they are unknown in practice. Are the State\ngovernments to be stigmatized as tyrannies, because they possess\nthis power? If they are not, with what propriety can the like power\njustify such a charge against the national government, or even be\nurged as an obstacle to its adoption? As little friendly as I am to\nthe species of imposition, I still feel a thorough conviction that\nthe power of having recourse to it ought to exist in the federal\ngovernment. There are certain emergencies of nations, in which\nexpedients, that in the ordinary state of things ought to be\nforborne, become essential to the public weal. And the government,\nfrom the possibility of such emergencies, ought ever to have the\noption of making use of them. The real scarcity of objects in this\ncountry, which may be considered as productive sources of revenue,\nis a reason peculiar to itself, for not abridging the discretion of\nthe national councils in this respect. There may exist certain\ncritical and tempestuous conjunctures of the State, in which a poll\ntax may become an inestimable resource. And as I know nothing to\nexempt this portion of the globe from the common calamities that\nhave befallen other parts of it, I acknowledge my aversion to every\nproject that is calculated to disarm the government of a single\nweapon, which in any possible contingency might be usefully employed\nfor the general defense and security.\n\nI have now gone through the examination of such of the powers\nproposed to be vested in the United States, which may be considered\nas having an immediate relation to the energy of the government;\nand have endeavored to answer the principal objections which have\nbeen made to them. I have passed over in silence those minor\nauthorities, which are either too inconsiderable to have been\nthought worthy of the hostilities of the opponents of the\nConstitution, or of too manifest propriety to admit of controversy.\nThe mass of judiciary power, however, might have claimed an\ninvestigation 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.\n\nPUBLIUS.\n\n1. The New England States.\n", "date": "Tuesday January 8, 1788", "title": "The Same Subject Continued (Concerning the General Power of Taxation)", "paper_id": 36, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nIN REVIEWING the defects of the existing Confederation, and\nshowing that they cannot be supplied by a government of less energy\nthan that before the public, several of the most important\nprinciples of the latter fell of course under consideration. But as\nthe ultimate object of these papers is to determine clearly and\nfully the merits of this Constitution, and the expediency of\nadopting it, our plan cannot be complete without taking a more\ncritical and thorough survey of the work of the convention, without\nexamining it on all its sides, comparing it in all its parts, and\ncalculating its probable effects.\n\nThat this remaining task may be executed under impressions\nconducive to a just and fair result, some reflections must in this\nplace be indulged, which candor previously suggests.\n\nIt is a misfortune, inseparable from human affairs, that public\nmeasures are rarely investigated with that spirit of moderation\nwhich is essential to a just estimate of their real tendency to\nadvance or obstruct the public good; and that this spirit is more\napt to be diminished than promoted, by those occasions which require\nan unusual exercise of it. To those who have been led by experience\nto attend to this consideration, it could not appear surprising,\nthat the act of the convention, which recommends so many important\nchanges and innovations, which may be viewed in so many lights and\nrelations, and which touches the springs of so many passions and\ninterests, should find or excite dispositions unfriendly, both on\none side and on the other, to a fair discussion and accurate\njudgment of its merits. In some, it has been too evident from their\nown publications, that they have scanned the proposed Constitution,\nnot only with a predisposition to censure, but with a\npredetermination to condemn; as the language held by others betrays\nan opposite predetermination or bias, which must render their\nopinions also of little moment in the question. In placing,\nhowever, these different characters on a level, with respect to the\nweight of their opinions, I wish not to insinuate that there may not\nbe a material difference in the purity of their intentions. It is\nbut just to remark in favor of the latter description, that as our\nsituation is universally admitted to be peculiarly critical, and to\nrequire indispensably that something should be done for our relief,\nthe predetermined patron of what has been actually done may have\ntaken his bias from the weight of these considerations, as well as\nfrom considerations of a sinister nature. The predetermined\nadversary, on the other hand, can have been governed by no venial\nmotive whatever. The intentions of the first may be upright, as\nthey may on the contrary be culpable. The views of the last cannot\nbe upright, and must be culpable. But the truth is, that these\npapers are not addressed to persons falling under either of these\ncharacters. They solicit the attention of those only, who add to a\nsincere zeal for the happiness of their country, a temper favorable\nto a just estimate of the means of promoting it.\n\nPersons of this character will proceed to an examination of the\nplan submitted by the convention, not only without a disposition to\nfind or to magnify faults; but will see the propriety of\nreflecting, that a faultless plan was not to be expected. Nor will\nthey barely make allowances for the errors which may be chargeable\non the fallibility to which the convention, as a body of men, were\nliable; but will keep in mind, that they themselves also are but\nmen, and ought not to assume an infallibility in rejudging the\nfallible 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\nto the convention.\n\nThe novelty of the undertaking immediately strikes us. It has\nbeen shown in the course of these papers, that the existing\nConfederation is founded on principles which are fallacious; that\nwe must consequently change this first foundation, and with it the\nsuperstructure resting upon it. It has been shown, that the other\nconfederacies which could be consulted as precedents have been\nvitiated by the same erroneous principles, and can therefore furnish\nno other light than that of beacons, which give warning of the\ncourse to be shunned, without pointing out that which ought to be\npursued. The most that the convention could do in such a situation,\nwas to avoid the errors suggested by the past experience of other\ncountries, as well as of our own; and to provide a convenient mode\nof rectifying their own errors, as future experiences may unfold\nthem.\n\nAmong the difficulties encountered by the convention, a very\nimportant one must have lain in combining the requisite stability\nand energy in government, with the inviolable attention due to\nliberty and to the republican form. Without substantially\naccomplishing this part of their undertaking, they would have very\nimperfectly fulfilled the object of their appointment, or the\nexpectation of the public; yet that it could not be easily\naccomplished, will be denied by no one who is unwilling to betray\nhis ignorance of the subject. Energy in government is essential to\nthat 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\nto national character and to the advantages annexed to it, as well\nas to that repose and confidence in the minds of the people, which\nare among the chief blessings of civil society. An irregular and\nmutable legislation is not more an evil in itself than it is odious\nto the people; and it may be pronounced with assurance that the\npeople of this country, enlightened as they are with regard to the\nnature, and interested, as the great body of them are, in the\neffects of good government, will never be satisfied till some remedy\nbe applied to the vicissitudes and uncertainties which characterize\nthe State administrations. On comparing, however, these valuable\ningredients with the vital principles of liberty, we must perceive\nat once the difficulty of mingling them together in their due\nproportions. The genius of republican liberty seems to demand on\none side, not only that all power should be derived from the people,\nbut that those intrusted with it should be kept in independence on\nthe people, by a short duration of their appointments; and that\neven during this short period the trust should be placed not in a\nfew, but a number of hands. Stability, on the contrary, requires\nthat the hands in which power is lodged should continue for a length\nof time the same. A frequent change of men will result from a\nfrequent return of elections; and a frequent change of measures\nfrom a frequent change of men: whilst energy in government requires\nnot only a certain duration of power, but the execution of it by a\nsingle hand.\n\nHow far the convention may have succeeded in this part of their\nwork, will better appear on a more accurate view of it. From the\ncursory view here taken, it must clearly appear to have been an\narduous part.\n\nNot less arduous must have been the task of marking the proper\nline of partition between the authority of the general and that of\nthe State governments. Every man will be sensible of this\ndifficulty, in proportion as he has been accustomed to contemplate\nand discriminate objects extensive and complicated in their nature.\nThe faculties of the mind itself have never yet been distinguished\nand defined, with satisfactory precision, by all the efforts of the\nmost acute and metaphysical philosophers. Sense, perception,\njudgment, desire, volition, memory, imagination, are found to be\nseparated by such delicate shades and minute gradations that their\nboundaries have eluded the most subtle investigations, and remain a\npregnant source of ingenious disquisition and controversy. The\nboundaries between the great kingdom of nature, and, still more,\nbetween the various provinces, and lesser portions, into which they\nare subdivided, afford another illustration of the same important\ntruth. The most sagacious and laborious naturalists have never yet\nsucceeded in tracing with certainty the line which separates the\ndistrict of vegetable life from the neighboring region of\nunorganized matter, or which marks the termination of the former and\nthe commencement of the animal empire. A still greater obscurity\nlies in the distinctive characters by which the objects in each of\nthese great departments of nature have been arranged and assorted.\n\nWhen we pass from the works of nature, in which all the\ndelineations are perfectly accurate, and appear to be otherwise only\nfrom the imperfection of the eye which surveys them, to the\ninstitutions of man, in which the obscurity arises as well from the\nobject itself as from the organ by which it is contemplated, we must\nperceive the necessity of moderating still further our expectations\nand hopes from the efforts of human sagacity. Experience has\ninstructed us that no skill in the science of government has yet\nbeen able to discriminate and define, with sufficient certainty, its\nthree great provinces the legislative, executive, and judiciary; or\neven the privileges and powers of the different legislative branches.\nQuestions daily occur in the course of practice, which prove the\nobscurity which reins in these subjects, and which puzzle the\ngreatest adepts in political science.\n\nThe experience of ages, with the continued and combined labors\nof the most enlightened legislatures and jurists, has been equally\nunsuccessful in delineating the several objects and limits of\ndifferent codes of laws and different tribunals of justice. The\nprecise extent of the common law, and the statute law, the maritime\nlaw, the ecclesiastical law, the law of corporations, and other\nlocal laws and customs, remains still to be clearly and finally\nestablished in Great Britain, where accuracy in such subjects has\nbeen more industriously pursued than in any other part of the world.\nThe jurisdiction of her several courts, general and local, of law,\nof equity, of admiralty, etc., is not less a source of frequent and\nintricate 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\nascertained by a series of particular discussions and adjudications.\nBesides the obscurity arising from the complexity of objects, and\nthe imperfection of the human faculties, the medium through which\nthe conceptions of men are conveyed to each other adds a fresh\nembarrassment. The use of words is to express ideas. Perspicuity,\ntherefore, requires not only that the ideas should be distinctly\nformed, but that they should be expressed by words distinctly and\nexclusively appropriate to them. But no language is so copious as\nto supply words and phrases for every complex idea, or so correct as\nnot to include many equivocally denoting different ideas. Hence it\nmust happen that however accurately objects may be discriminated in\nthemselves, and however accurately the discrimination may be\nconsidered, the definition of them may be rendered inaccurate by the\ninaccuracy 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\nhimself condescends to address mankind in their own language, his\nmeaning, luminous as it must be, is rendered dim and doubtful by the\ncloudy medium through which it is communicated.\n\nHere, then, are three sources of vague and incorrect\ndefinitions: indistinctness of the object, imperfection of the\norgan of conception, inadequateness of the vehicle of ideas. Any\none of these must produce a certain degree of obscurity. The\nconvention, in delineating the boundary between the federal and\nState jurisdictions, must have experienced the full effect of them\nall.\n\nTo the difficulties already mentioned may be added the\ninterfering pretensions of the larger and smaller States. We cannot\nerr in supposing that the former would contend for a participation\nin the government, fully proportioned to their superior wealth and\nimportance; and that the latter would not be less tenacious of the\nequality at present enjoyed by them. We may well suppose that\nneither side would entirely yield to the other, and consequently\nthat the struggle could be terminated only by compromise. It is\nextremely probable, also, that after the ratio of representation had\nbeen adjusted, this very compromise must have produced a fresh\nstruggle between the same parties, to give such a turn to the\norganization 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\nshows that the convention must have been compelled to sacrifice\ntheoretical propriety to the force of extraneous considerations.\n\nNor could it have been the large and small States only, which\nwould marshal themselves in opposition to each other on various\npoints. Other combinations, resulting from a difference of local\nposition and policy, must have created additional difficulties. As\nevery State may be divided into different districts, and its\ncitizens into different classes, which give birth to contending\ninterests and local jealousies, so the different parts of the United\nStates are distinguished from each other by a variety of\ncircumstances, which produce a like effect on a larger scale. And\nalthough 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\nin the task of forming it.\n\nWould it be wonderful if, under the pressure of all these\ndifficulties, the convention should have been forced into some\ndeviations from that artificial structure and regular symmetry which\nan abstract view of the subject might lead an ingenious theorist to\nbestow on a Constitution planned in his closet or in his\nimagination? The real wonder is that so many difficulties should\nhave been surmounted, and surmounted with a unanimity almost as\nunprecedented as it must have been unexpected. It is impossible for\nany man of candor to reflect on this circumstance without partaking\nof the astonishment. It is impossible for the man of pious\nreflection not to perceive in it a finger of that Almighty hand\nwhich has been so frequently and signally extended to our relief in\nthe critical stages of the revolution.\n\nWe had occasion, in a former paper, to take notice of the\nrepeated trials which have been unsuccessfully made in the United\nNetherlands for reforming the baneful and notorious vices of their\nconstitution. The history of almost all the great councils and\nconsultations held among mankind for reconciling their discordant\nopinions, assuaging their mutual jealousies, and adjusting their\nrespective interests, is a history of factions, contentions, and\ndisappointments, and may be classed among the most dark and degraded\npictures which display the infirmities and depravities of the human\ncharacter. If, in a few scattered instances, a brighter aspect is\npresented, they serve only as exceptions to admonish us of the\ngeneral truth; and by their lustre to darken the gloom of the\nadverse prospect to which they are contrasted. In revolving the\ncauses from which these exceptions result, and applying them to the\nparticular instances before us, we are necessarily led to two\nimportant conclusions. The first is, that the convention must have\nenjoyed, in a very singular degree, an exemption from the\npestilential influence of party animosities the disease most\nincident to deliberative bodies, and most apt to contaminate their\nproceedings. The second conclusion is that all the deputations\ncomposing the convention were satisfactorily accommodated by the\nfinal act, or were induced to accede to it by a deep conviction of\nthe necessity of sacrificing private opinions and partial interests\nto the public good, and by a despair of seeing this necessity\ndiminished by delays or by new experiments.\n\nPUBLIUS.\n", "date": "Friday, January 11, 1788", "title": "Concerning the Difficulties of the Convention in Devising a Proper Form of Government", "paper_id": 37, "venue": "From the Daily Advertiser"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nIT IS not a little remarkable that in every case reported by\nancient history, in which government has been established with\ndeliberation and consent, the task of framing it has not been\ncommitted to an assembly of men, but has been performed by some\nindividual citizen of preeminent wisdom and approved integrity.\n\nMinos, we learn, was the primitive founder of the government of\nCrete, as Zaleucus was of that of the Locrians. Theseus first, and\nafter him Draco and Solon, instituted the government of Athens.\nLycurgus was the lawgiver of Sparta. The foundation of the\noriginal government of Rome was laid by Romulus, and the work\ncompleted by two of his elective successors, Numa and Tullius\nHostilius. On the abolition of royalty the consular administration\nwas substituted by Brutus, who stepped forward with a project for\nsuch a reform, which, he alleged, had been prepared by Tullius\nHostilius, 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\nauthor of that which bore his name. The Achaean league received its\nfirst birth from Achaeus, and its second from Aratus.\n\nWhat degree of agency these reputed lawgivers might have in\ntheir respective establishments, or how far they might be clothed\nwith the legitimate authority of the people, cannot in every\ninstance be ascertained. In some, however, the proceeding was\nstrictly regular. Draco appears to have been intrusted by the\npeople of Athens with indefinite powers to reform its government and\nlaws. And Solon, according to Plutarch, was in a manner compelled,\nby the universal suffrage of his fellow-citizens, to take upon him\nthe sole and absolute power of new-modeling the constitution. The\nproceedings under Lycurgus were less regular; but as far as the\nadvocates for a regular reform could prevail, they all turned their\neyes towards the single efforts of that celebrated patriot and sage,\ninstead of seeking to bring about a revolution by the intervention\nof a deliberative body of citizens.\n\nWhence could it have proceeded, that a people, jealous as the\nGreeks were of their liberty, should so far abandon the rules of\ncaution as to place their destiny in the hands of a single citizen?\nWhence could it have proceeded, that the Athenians, a people who\nwould not suffer an army to be commanded by fewer than ten generals,\nand who required no other proof of danger to their liberties than\nthe illustrious merit of a fellow-citizen, should consider one\nillustrious citizen as a more eligible depositary of the fortunes of\nthemselves and their posterity, than a select body of citizens, from\nwhose common deliberations more wisdom, as well as more safety,\nmight have been expected? These questions cannot be fully answered,\nwithout supposing that the fears of discord and disunion among a\nnumber of counsellors exceeded the apprehension of treachery or\nincapacity in a single individual. History informs us, likewise, of\nthe difficulties with which these celebrated reformers had to\ncontend, as well as the expedients which they were obliged to employ\nin order to carry their reforms into effect. Solon, who seems to\nhave indulged a more temporizing policy, confessed that he had not\ngiven to his countrymen the government best suited to their\nhappiness, but most tolerable to their prejudices. And Lycurgus,\nmore true to his object, was under the necessity of mixing a portion\nof violence with the authority of superstition, and of securing his\nfinal success by a voluntary renunciation, first of his country, and\nthen of his life. If these lessons teach us, on one hand, to admire\nthe improvement made by America on the ancient mode of preparing and\nestablishing regular plans of government, they serve not less, on\nthe other, to admonish us of the hazards and difficulties incident\nto such experiments, and of the great imprudence of unnecessarily\nmultiplying them.\n\nIs it an unreasonable conjecture, that the errors which may be\ncontained in the plan of the convention are such as have resulted\nrather from the defect of antecedent experience on this complicated\nand difficult subject, than from a want of accuracy or care in the\ninvestigation of it; and, consequently such as will not be\nascertained until an actual trial shall have pointed them out? This\nconjecture is rendered probable, not only by many considerations of\na general nature, but by the particular case of the Articles of\nConfederation. It is observable that among the numerous objections\nand amendments suggested by the several States, when these articles\nwere submitted for their ratification, not one is found which\nalludes to the great and radical error which on actual trial has\ndiscovered itself. And if we except the observations which New\nJersey was led to make, rather by her local situation, than by her\npeculiar 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\nthese objections were, they would have been adhered to with a very\ndangerous inflexibility, in some States, had not a zeal for their\nopinions and supposed interests been stifled by the more powerful\nsentiment of selfpreservation. One State, we may remember,\npersisted for several years in refusing her concurrence, although\nthe enemy remained the whole period at our gates, or rather in the\nvery bowels of our country. Nor was her pliancy in the end effected\nby a less motive, than the fear of being chargeable with protracting\nthe public calamities, and endangering the event of the contest.\nEvery candid reader will make the proper reflections on these\nimportant facts.\n\nA patient who finds his disorder daily growing worse, and that\nan efficacious remedy can no longer be delayed without extreme\ndanger, after coolly revolving his situation, and the characters of\ndifferent physicians, selects and calls in such of them as he judges\nmost capable of administering relief, and best entitled to his\nconfidence. The physicians attend; the case of the patient is\ncarefully examined; a consultation is held; they are unanimously\nagreed that the symptoms are critical, but that the case, with\nproper and timely relief, is so far from being desperate, that it\nmay be made to issue in an improvement of his constitution. They\nare equally unanimous in prescribing the remedy, by which this happy\neffect is to be produced. The prescription is no sooner made known,\nhowever, than a number of persons interpose, and, without denying\nthe reality or danger of the disorder, assure the patient that the\nprescription will be poison to his constitution, and forbid him,\nunder pain of certain death, to make use of it. Might not the\npatient reasonably demand, before he ventured to follow this advice,\nthat the authors of it should at least agree among themselves on\nsome other remedy to be substituted? And if he found them differing\nas much from one another as from his first counsellors, would he not\nact prudently in trying the experiment unanimously recommended by\nthe latter, rather than be hearkening to those who could neither\ndeny the necessity 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\nand unanimous advice from men of her own deliberate choice. And she\nis warned by others against following this advice under pain of the\nmost fatal consequences. Do the monitors deny the reality of her\ndanger? No. Do they deny the necessity of some speedy and powerful\nremedy? No. Are they agreed, are any two of them agreed, in their\nobjections to the remedy proposed, or in the proper one to be\nsubstituted? Let them speak for themselves. This one tells us that\nthe proposed Constitution ought to be rejected, because it is not a\nconfederation of the States, but a government over individuals.\nAnother admits that it ought to be a government over individuals to\na certain extent, but by no means to the extent proposed. A third\ndoes not object to the government over individuals, or to the extent\nproposed, but to the want of a bill of rights. A fourth concurs in\nthe absolute necessity of a bill of rights, but contends that it\nought to be declaratory, not of the personal rights of individuals,\nbut of the rights reserved to the States in their political capacity.\nA fifth is of opinion that a bill of rights of any sort would be\nsuperfluous 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\nagainst the unreasonable equality of representation in the Senate.\nAn objector in a small State is equally loud against the dangerous\ninequality in the House of Representatives. From this quarter, we\nare alarmed with the amazing expense, from the number of persons who\nare to administer the new government. From another quarter, and\nsometimes from the same quarter, on another occasion, the cry is\nthat the Congress will be but a shadow of a representation, and that\nthe government would be far less objectionable if the number and the\nexpense were doubled. A patriot in a State that does not import or\nexport, discerns insuperable objections against the power of direct\ntaxation. The patriotic adversary in a State of great exports and\nimports, is not less dissatisfied that the whole burden of taxes may\nbe thrown on consumption. This politician discovers in the\nConstitution a direct and irresistible tendency to monarchy; that\nis equally sure it will end in aristocracy. Another is puzzled to\nsay which of these shapes it will ultimately assume, but sees\nclearly it must be one or other of them; whilst a fourth is not\nwanting, who with no less confidence affirms that the Constitution\nis so far from having a bias towards either of these dangers, that\nthe weight on that side will not be sufficient to keep it upright\nand firm against its opposite propensities. With another class of\nadversaries to the Constitution the language is that the\nlegislative, executive, and judiciary departments are intermixed in\nsuch a manner as to contradict all the ideas of regular government\nand all the requisite precautions in favor of liberty. Whilst this\nobjection circulates in vague and general expressions, there are but\na few who lend their sanction to it. Let each one come forward with\nhis particular explanation, and scarce any two are exactly agreed\nupon the subject. In the eyes of one the junction of the Senate\nwith the President in the responsible function of appointing to\noffices, instead of vesting this executive power in the Executive\nalone, is the vicious part of the organization. To another, the\nexclusion of the House of Representatives, whose numbers alone could\nbe a due security against corruption and partiality in the exercise\nof such a power, is equally obnoxious. With another, the admission\nof the President into any share of a power which ever must be a\ndangerous engine in the hands of the executive magistrate, is an\nunpardonable violation of the maxims of republican jealousy. No\npart of the arrangement, according to some, is more inadmissible\nthan the trial of impeachments by the Senate, which is alternately a\nmember both of the legislative and executive departments, when this\npower so evidently belonged to the judiciary department. \"We\nconcur fully,\" reply others, \"in the objection to this part of the\nplan, but we can never agree that a reference of impeachments to the\njudiciary authority would be an amendment of the error. Our\nprincipal dislike to the organization arises from the extensive\npowers already lodged in that department.\" Even among the zealous\npatrons of a council of state the most irreconcilable variance is\ndiscovered concerning the mode in which it ought to be constituted.\nThe demand of one gentleman is, that the council should consist of\na small number to be appointed by the most numerous branch of the\nlegislature. Another would prefer a larger number, and considers it\nas a fundamental condition that the appointment should be made by\nthe President himself.\n\nAs it can give no umbrage to the writers against the plan of the\nfederal Constitution, let us suppose, that as they are the most\nzealous, so they are also the most sagacious, of those who think the\nlate convention were unequal to the task assigned them, and that a\nwiser and better plan might and ought to be substituted. Let us\nfurther suppose that their country should concur, both in this\nfavorable opinion of their merits, and in their unfavorable opinion\nof the convention; and should accordingly proceed to form them into\na second convention, with full powers, and for the express purpose\nof revising and remoulding the work of the first. Were the\nexperiment to be seriously made, though it required some effort to\nview it seriously even in fiction, I leave it to be decided by the\nsample of opinions just exhibited, whether, with all their enmity to\ntheir predecessors, they would, in any one point, depart so widely\nfrom their example, as in the discord and ferment that would mark\ntheir 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\nhis own return from exile and death, if it were to be immediately\nadopted, and were to continue in force, not until a BETTER, but\nuntil ANOTHER should be agreed upon by this new assembly of\nlawgivers.\n\nIt is a matter both of wonder and regret, that those who raise\nso many objections against the new Constitution should never call to\nmind the defects of that which is to be exchanged for it. It is not\nnecessary that the former should be perfect; it is sufficient that\nthe latter is more imperfect. No man would refuse to give brass for\nsilver or gold, because the latter had some alloy in it. No man\nwould refuse to quit a shattered and tottering habitation for a firm\nand commodious building, because the latter had not a porch to it,\nor because some of the rooms might be a little larger or smaller, or\nthe ceilings a little higher or lower than his fancy would have\nplanned them. But waiving illustrations of this sort, is it not\nmanifest that most of the capital objections urged against the new\nsystem lie with tenfold weight against the existing Confederation?\nIs an indefinite power to raise money dangerous in the hands of the\nfederal government? The present Congress can make requisitions to\nany amount they please, and the States are constitutionally bound to\nfurnish them; they can emit bills of credit as long as they will\npay for the paper; they can borrow, both abroad and at home, as\nlong as a shilling will be lent. Is an indefinite power to raise\ntroops dangerous? The Confederation gives to Congress that power\nalso; and they have already begun to make use of it. Is it\nimproper and unsafe to intermix the different powers of government\nin the same body of men? Congress, a single body of men, are the\nsole depositary of all the federal powers. Is it particularly\ndangerous to give the keys of the treasury, and the command of the\narmy, into the same hands? The Confederation places them both in\nthe hands of Congress. Is a bill of rights essential to liberty?\nThe Confederation has no bill of rights. Is it an objection\nagainst the new Constitution, that it empowers the Senate, with the\nconcurrence of the Executive, to make treaties which are to be the\nlaws of the land? The existing Congress, without any such control,\ncan make treaties which they themselves have declared, and most of\nthe States have recognized, to be the supreme law of the land. Is\nthe importation of slaves permitted by the new Constitution for\ntwenty years? By the old it is permitted forever.\n\nI shall be told, that however dangerous this mixture of powers\nmay be in theory, it is rendered harmless by the dependence of\nCongress on the State for the means of carrying them into practice;\nthat however large the mass of powers may be, it is in fact a\nlifeless mass. Then, say I, in the first place, that the\nConfederation is chargeable with the still greater folly of\ndeclaring certain powers in the federal government to be absolutely\nnecessary, and at the same time rendering them absolutely nugatory;\nand, in the next place, that if the Union is to continue, and no\nbetter government be substituted, effective powers must either be\ngranted to, or assumed by, the existing Congress; in either of\nwhich events, the contrast just stated will hold good. But this is\nnot all. Out of this lifeless mass has already grown an excrescent\npower, which tends to realize all the dangers that can be\napprehended from a defective construction of the supreme government\nof the Union. It is now no longer a point of speculation and hope,\nthat the Western territory is a mine of vast wealth to the United\nStates; and although it is not of such a nature as to extricate\nthem from their present distresses, or for some time to come, to\nyield any regular supplies for the public expenses, yet must it\nhereafter be able, under proper management, both to effect a gradual\ndischarge of the domestic debt, and to furnish, for a certain\nperiod, liberal tributes to the federal treasury. A very large\nproportion of this fund has been already surrendered by individual\nStates; and it may with reason be expected that the remaining\nStates will not persist in withholding similar proofs of their\nequity and generosity. We may calculate, therefore, that a rich and\nfertile country, of an area equal to the inhabited extent of the\nUnited States, will soon become a national stock. Congress have\nassumed the administration of this stock. They have begun to render\nit productive. Congress have undertaken to do more: they have\nproceeded to form new States, to erect temporary governments, to\nappoint officers for them, and to prescribe the conditions on which\nsuch States shall be admitted into the Confederacy. All this has\nbeen done; and done without the least color of constitutional\nauthority. Yet no blame has been whispered; no alarm has been\nsounded. A GREAT and INDEPENDENT fund of revenue is passing into\nthe hands of a SINGLE BODY of men, who can RAISE TROOPS to an\nINDEFINITE NUMBER, and appropriate money to their support for an\nINDEFINITE PERIOD OF TIME. And yet there are men, who have not only\nbeen silent spectators of this prospect, but who are advocates for\nthe system which exhibits it; and, at the same time, urge against\nthe new system the objections which we have heard. Would they not\nact with more consistency, in urging the establishment of the\nlatter, as no less necessary to guard the Union against the future\npowers and resources of a body constructed like the existing\nCongress, than to save it from the dangers threatened by the present\nimpotency of that Assembly?\n\nI mean not, by any thing here said, to throw censure on the\nmeasures which have been pursued by Congress. I am sensible they\ncould not have done otherwise. The public interest, the necessity\nof the case, imposed upon them the task of overleaping their\nconstitutional limits. But is not the fact an alarming proof of the\ndanger resulting from a government which does not possess regular\npowers commensurate to its objects? A dissolution or usurpation is\nthe dreadful dilemma to which it is continually exposed.\n\nPUBLIUS.\n", "date": "Tuesday, January 15, 1788", "title": "The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed", "paper_id": 38, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nTHE last paper having concluded the observations which were\nmeant to introduce a candid survey of the plan of government\nreported by the convention, we now proceed to the execution of that\npart of our undertaking.\n\nThe first question that offers itself is, whether the general\nform and aspect of the government be strictly republican. It is\nevident that no other form would be reconcilable with the genius of\nthe people of America; with the fundamental principles of the\nRevolution; or with that honorable determination which animates\nevery votary of freedom, to rest all our political experiments on\nthe capacity of mankind for self-government. If the plan of the\nconvention, therefore, be found to depart from the republican\ncharacter, its advocates must abandon it as no longer defensible.\n\nWhat, then, are the distinctive characters of the republican\nform? Were an answer to this question to be sought, not by\nrecurring to principles, but in the application of the term by\npolitical writers, to the constitution of different States, no\nsatisfactory one would ever be found. Holland, in which no particle\nof the supreme authority is derived from the people, has passed\nalmost universally under the denomination of a republic. The same\ntitle has been bestowed on Venice, where absolute power over the\ngreat body of the people is exercised, in the most absolute manner,\nby a small body of hereditary nobles. Poland, which is a mixture of\naristocracy and of monarchy in their worst forms, has been dignified\nwith the same appellation. The government of England, which has one\nrepublican branch only, combined with an hereditary aristocracy and\nmonarchy, has, with equal impropriety, been frequently placed on the\nlist of republics. These examples, which are nearly as dissimilar\nto each other as to a genuine republic, show the extreme inaccuracy\nwith which the term has been used in political disquisitions.\n\nIf we resort for a criterion to the different principles on\nwhich different forms of government are established, we may define a\nrepublic to be, or at least may bestow that name on, a government\nwhich derives all its powers directly or indirectly from the great\nbody of the people, and is administered by persons holding their\noffices during pleasure, for a limited period, or during good\nbehavior. It is ESSENTIAL to such a government that it be derived\nfrom the great body of the society, not from an inconsiderable\nproportion, or a favored class of it; otherwise a handful of\ntyrannical nobles, exercising their oppressions by a delegation of\ntheir powers, might aspire to the rank of republicans, and claim for\ntheir government the honorable title of republic. It is SUFFICIENT\nfor 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\nspecified; otherwise every government in the United States, as well\nas every other popular government that has been or can be well\norganized or well executed, would be degraded from the republican\ncharacter. According to the constitution of every State in the\nUnion, some or other of the officers of government are appointed\nindirectly only by the people. According to most of them, the chief\nmagistrate himself is so appointed. And according to one, this mode\nof appointment is extended to one of the co-ordinate branches of the\nlegislature. According to all the constitutions, also, the tenure\nof the highest offices is extended to a definite period, and in many\ninstances, both within the legislative and executive departments, to\na period of years. According to the provisions of most of the\nconstitutions, again, as well as according to the most respectable\nand received opinions on the subject, the members of the judiciary\ndepartment are to retain their offices by the firm tenure of good\nbehavior.\n\nOn comparing the Constitution planned by the convention with the\nstandard here fixed, we perceive at once that it is, in the most\nrigid sense, conformable to it. The House of Representatives, like\nthat of one branch at least of all the State legislatures, is\nelected immediately by the great body of the people. The Senate,\nlike the present Congress, and the Senate of Maryland, derives its\nappointment indirectly from the people. The President is indirectly\nderived from the choice of the people, according to the example in\nmost of the States. Even the judges, with all other officers of the\nUnion, will, as in the several States, be the choice, though a\nremote choice, of the people themselves, the duration of the\nappointments is equally conformable to the republican standard, and\nto the model of State constitutions The House of Representatives is\nperiodically elective, as in all the States; and for the period of\ntwo years, as in the State of South Carolina. The Senate is\nelective, 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\nthat of the Senates of New York and Virginia. The President is to\ncontinue in office for the period of four years; as in New York and\nDelaware, the chief magistrate is elected for three years, and in\nSouth Carolina for two years. In the other States the election is\nannual. In several of the States, however, no constitutional\nprovision is made for the impeachment of the chief magistrate. And\nin Delaware and Virginia he is not impeachable till out of office.\nThe President of the United States is impeachable at any time\nduring his continuance in office. The tenure by which the judges\nare to hold their places, is, as it unquestionably ought to be, that\nof good behavior. The tenure of the ministerial offices generally,\nwill be a subject of legal regulation, conformably to the reason of\nthe case and the example of the State constitutions.\n\nCould any further proof be required of the republican complexion\nof this system, the most decisive one might be found in its absolute\nprohibition of titles of nobility, both under the federal and the\nState governments; and in its express guaranty of the republican\nform to each of the latter.\n\n\"But it was not sufficient,\" say the adversaries of the\nproposed Constitution, \"for the convention to adhere to the\nrepublican form. They ought, with equal care, to have preserved the\nFEDERAL form, which regards the Union as a CONFEDERACY of sovereign\nstates; instead of which, they have framed a NATIONAL government,\nwhich regards the Union as a CONSOLIDATION of the States.\" And it\nis asked by what authority this bold and radical innovation was\nundertaken? The handle which has been made of this objection\nrequires that it should be examined with some precision.\n\nWithout inquiring into the accuracy of the distinction on which\nthe objection is founded, it will be necessary to a just estimate of\nits force, first, to ascertain the real character of the government\nin question; secondly, to inquire how far the convention were\nauthorized to propose such a government; and thirdly, how far the\nduty they owed to their country could supply any defect of regular\nauthority.\n\nFirst. In order to ascertain the real character of the\ngovernment, it may be considered in relation to the foundation on\nwhich it is to be established; to the sources from which its\nordinary powers are to be drawn; to the operation of those powers;\nto the extent of them; and to the authority by which future\nchanges in the government are to be introduced.\n\nOn examining the first relation, it appears, on one hand, that\nthe Constitution is to be founded on the assent and ratification of\nthe people of America, given by deputies elected for the special\npurpose; but, on the other, that this assent and ratification is to\nbe given by the people, not as individuals composing one entire\nnation, but as composing the distinct and independent States to\nwhich they respectively belong. It is to be the assent and\nratification of the several States, derived from the supreme\nauthority in each State, the authority of the people themselves.\nThe act, therefore, establishing the Constitution, will not be a\nNATIONAL, but a FEDERAL act.\n\nThat it will be a federal and not a national act, as these terms\nare understood by the objectors; the act of the people, as forming\nso many independent States, not as forming one aggregate nation, is\nobvious from this single consideration, that it is to result neither\nfrom the decision of a MAJORITY of the people of the Union, nor from\nthat of a MAJORITY of the States. It must result from the UNANIMOUS\nassent of the several States that are parties to it, differing no\notherwise from their ordinary assent than in its being expressed,\nnot by the legislative authority, but by that of the people\nthemselves. Were the people regarded in this transaction as forming\none nation, the will of the majority of the whole people of the\nUnited States would bind the minority, in the same manner as the\nmajority in each State must bind the minority; and the will of the\nmajority must be determined either by a comparison of the individual\nvotes, or by considering the will of the majority of the States as\nevidence of the will of a majority of the people of the United\nStates. Neither of these rules have been adopted. Each State, in\nratifying the Constitution, is considered as a sovereign body,\nindependent of all others, and only to be bound by its own voluntary\nact. 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\npowers of government are to be derived. The House of\nRepresentatives will derive its powers from the people of America;\nand the people will be represented in the same proportion, and on\nthe same principle, as they are in the legislature of a particular\nState. So far the government is NATIONAL, not FEDERAL. The Senate,\non the other hand, will derive its powers from the States, as\npolitical and coequal societies; and these will be represented on\nthe principle of equality in the Senate, as they now are in the\nexisting Congress. So far the government is FEDERAL, not NATIONAL.\nThe executive power will be derived from a very compound source.\nThe immediate election of the President is to be made by the States\nin their political characters. The votes allotted to them are in a\ncompound ratio, which considers them partly as distinct and coequal\nsocieties, partly as unequal members of the same society. The\neventual election, again, is to be made by that branch of the\nlegislature which consists of the national representatives; but in\nthis particular act they are to be thrown into the form of\nindividual delegations, from so many distinct and coequal bodies\npolitic. From this aspect of the government it appears to be of a\nmixed character, presenting at least as many FEDERAL as NATIONAL\nfeatures.\n\nThe difference between a federal and national government, as it\nrelates to the OPERATION OF THE GOVERNMENT, is supposed to consist\nin this, that in the former the powers operate on the political\nbodies composing the Confederacy, in their political capacities; in\nthe latter, on the individual citizens composing the nation, in\ntheir individual capacities. On trying the Constitution by this\ncriterion, it falls under the NATIONAL, not the FEDERAL character;\nthough perhaps not so completely as has been understood. In\nseveral cases, and particularly in the trial of controversies to\nwhich States may be parties, they must be viewed and proceeded\nagainst in their collective and political capacities only. So far\nthe national countenance of the government on this side seems to be\ndisfigured by a few federal features. But this blemish is perhaps\nunavoidable in any plan; and the operation of the government on the\npeople, in their individual capacities, in its ordinary and most\nessential proceedings, may, on the whole, designate it, in this\nrelation, a NATIONAL government.\n\nBut if the government be national with regard to the OPERATION\nof its powers, it changes its aspect again when we contemplate it in\nrelation to the EXTENT of its powers. The idea of a national\ngovernment involves in it, not only an authority over the individual\ncitizens, but an indefinite supremacy over all persons and things,\nso far as they are objects of lawful government. Among a people\nconsolidated into one nation, this supremacy is completely vested in\nthe national legislature. Among communities united for particular\npurposes, it is vested partly in the general and partly in the\nmunicipal legislatures. In the former case, all local authorities\nare subordinate to the supreme; and may be controlled, directed, or\nabolished by it at pleasure. In the latter, the local or municipal\nauthorities form distinct and independent portions of the supremacy,\nno more subject, within their respective spheres, to the general\nauthority, than the general authority is subject to them, within its\nown 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\nresiduary and inviolable sovereignty over all other objects. It is\ntrue that in controversies relating to the boundary between the two\njurisdictions, the tribunal which is ultimately to decide, is to be\nestablished under the general government. But this does not change\nthe principle of the case. The decision is to be impartially made,\naccording to the rules of the Constitution; and all the usual and\nmost effectual precautions are taken to secure this impartiality.\nSome such tribunal is clearly essential to prevent an appeal to the\nsword and a dissolution of the compact; and that it ought to be\nestablished under the general rather than under the local\ngovernments, or, to speak more properly, that it could be safely\nestablished under the first alone, is a position not likely to be\ncombated.\n\nIf we try the Constitution by its last relation to the authority\nby which amendments are to be made, we find it neither wholly\nNATIONAL nor wholly FEDERAL. Were it wholly national, the supreme\nand ultimate authority would reside in the MAJORITY of the people of\nthe Union; and this authority would be competent at all times, like\nthat of a majority of every national society, to alter or abolish\nits established government. Were it wholly federal, on the other\nhand, the concurrence of each State in the Union would be essential\nto every alteration that would be binding on all. The mode provided\nby the plan of the convention is not founded on either of these\nprinciples. In requiring more than a majority, and principles. In\nrequiring more than a majority, and particularly in computing the\nproportion by STATES, not by CITIZENS, it departs from the NATIONAL\nand advances towards the FEDERAL character; in rendering the\nconcurrence of less than the whole number of States sufficient, it\nloses again the FEDERAL and partakes of the NATIONAL character.\n\nThe proposed Constitution, therefore, is, in strictness, neither\na national nor a federal Constitution, but a composition of both.\nIn its foundation it is federal, not national; in the sources from\nwhich the ordinary powers of the government are drawn, it is partly\nfederal and partly national; in the operation of these powers, it\nis national, not federal; in the extent of them, again, it is\nfederal, not national; and, finally, in the authoritative mode of\nintroducing amendments, it is neither wholly federal nor wholly\nnational.\n\nPUBLIUS.\n", "date": null, "title": "The Conformity of the Plan to Republican Principles", "paper_id": 39, "venue": "For the Independent Journal"}
{"author": "MADISON", "text": "To 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. The\npowers 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,\neither to the recommendation from the meeting at Annapolis, in\nSeptember, 1786, or to that from Congress, in February, 1787, it\nwill be sufficient to recur to these particular acts. The act\nfrom Annapolis recommends the \"appointment of commissioners to\ntake into consideration the situation of the United States; to\ndevise SUCH FURTHER PROVISIONS as shall appear to them necessary\nto render the Constitution of the federal government ADEQUATE TO\nTHE EXIGENCIES OF THE UNION; and to report such an act for that\npurpose, to the United States in Congress assembled, as when\nagreed to by them, and afterwards confirmed by the legislature of\nevery State, will effectually provide for the same. \"The\nrecommendatory act of Congress is in the words\nfollowing:\"WHEREAS, There is provision in the articles of\nConfederation and perpetual Union, for making alterations\ntherein, by the assent of a Congress of the United States, and of\nthe legislatures of the several States; and whereas experience\nhath evinced, that there are defects in the present\nConfederation; as a mean to remedy which, several of the States,\nand PARTICULARLY THE STATE OF NEW YORK, by express instructions\nto their delegates in Congress, have suggested a convention for\nthe purposes expressed in the following resolution; and such\nconvention appearing to be the most probable mean of establishing\nin these States A FIRM NATIONAL GOVERNMENT:\"Resolved, That in\nthe opinion of Congress it is expedient, that on the second\nMonday of May next a convention of delegates, who shall have been\nappointed by the several States, be held at Philadelphia, for the\nsole and express purpose OF REVISING THE ARTICLES OF\nCONFEDERATION, and reporting to Congress and the several\nlegislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall,\nwhen agreed to in Congress, and confirmed by the States, render\nthe federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT\nAND THE PRESERVATION OF THE UNION. \"From these two acts, it\nappears, 1st, that the object of the convention was to establish,\nin these States, A FIRM NATIONAL GOVERNMENT; 2d, that this\ngovernment was to be such as would be ADEQUATE TO THE EXIGENCIES\nOF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these\npurposes were to be effected by ALTERATIONS AND PROVISIONS IN THE\nARTICLES OF CONFEDERATION, as it is expressed in the act of\nCongress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR\nNECESSARY, as it stands in the recommendatory act from Annapolis;\n4th, that the alterations and provisions were to be reported to\nCongress, and to the States, in order to be agreed to by the\nformer and confirmed by the latter. From a comparison and fair\nconstruction of these several modes of expression, is to be\ndeduced the authority under which the convention acted. They were\nto frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF\nGOVERNMENT, and OF THE UNION; and to reduce the articles of\nConfederation into such form as to accomplish these purposes.\nThere are two rules of construction, dictated by plain reason, as\nwell as founded on legal axioms. The one is, that every part of\nthe expression ought, if possible, to be allowed some meaning,\nand be made to conspire to some common end. The other is, that\nwhere the several parts cannot be made to coincide, the less\nimportant should give way to the more important part; the means\nshould be sacrificed to the end, rather than the end to the\nmeans. Suppose, then, that the expressions defining the\nauthority of the convention were irreconcilably at variance with\neach other; that a NATIONAL and ADEQUATE GOVERNMENT could not\npossibly, in the judgment of the convention, be affected by\nALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION;\nwhich part of the definition ought to have been embraced, and\nwhich rejected? Which was the more important, which the less\nimportant part? Which the end; which the means? Let the most\nscrupulous expositors of delegated powers; let the most\ninveterate objectors against those exercised by the convention,\nanswer these questions. Let them declare, whether it was of most\nimportance to the happiness of the people of America, that the\narticles of Confederation should be disregarded, and an adequate\ngovernment be provided, and the Union preserved; or that an\nadequate government should be omitted, and the articles of\nConfederation preserved. Let them declare, whether the\npreservation of these articles was the end, for securing which a\nreform of the government was to be introduced as the means; or\nwhether the establishment of a government, adequate to the\nnational happiness, was the end at which these articles\nthemselves originally aimed, and to which they ought, as\ninsufficient means, to have been sacrificed. But is it necessary\nto suppose that these expressions are absolutely irreconcilable\nto each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES\nOF THE CONFEDERATION could possibly mould them into a national\nand adequate government; into such a government as has been\nproposed by the convention? No stress, it is presumed, will, in\nthis case, be laid on the TITLE; a change of that could never be\ndeemed an exercise of ungranted power. ALTERATIONS in the body of\nthe instrument are expressly authorized. NEW PROVISIONS therein\nare also expressly authorized. Here then is a power to change the\ntitle; to insert new articles; to alter old ones. Must it of\nnecessity be admitted that this power is infringed, so long as a\npart of the old articles remain? Those who maintain the\naffirmative ought at least to mark the boundary between\nauthorized and usurped innovations; between that degree of change\nwhich lies within the compass of ALTERATIONS AND FURTHER\nPROVISIONS, and that which amounts to a TRANSMUTATION of the\ngovernment. Will it be said that the alterations ought not to\nhave touched the substance of the Confederation? The States\nwould never have appointed a convention with so much solemnity,\nnor described its objects with so much latitude, if some\nSUBSTANTIAL reform had not been in contemplation. Will it be said\nthat the FUNDAMENTAL PRINCIPLES of the Confederation were not\nwithin the purview of the convention, and ought not to have been\nvaried? I ask, What are these principles? Do they require that,\nin the establishment of the Constitution, the States should be\nregarded as distinct and independent sovereigns? They are so\nregarded by the Constitution proposed. Do they require that the\nmembers of the government should derive their appointment from\nthe legislatures, not from the people of the States? One branch\nof the new government is to be appointed by these legislatures;\nand under the Confederation, the delegates to Congress MAY ALL\nbe appointed immediately by the people, and in two States [1] are\nactually so appointed. Do they require that the powers of the\ngovernment should act on the States, and not immediately on\nindividuals? In some instances, as has been shown, the powers of\nthe new government will act on the States in their collective\ncharacters. In some instances, also, those of the existing\ngovernment act immediately on individuals. In cases of capture;\nof piracy; of the post office; of coins, weights, and measures;\nof trade with the Indians; of claims under grants of land by\ndifferent States; and, above all, in the case of trials by\ncourts-marshal in the army and navy, by which death may be\ninflicted without the intervention of a jury, or even of a civil\nmagistrate; in all these cases the powers of the Confederation\noperate immediately on the persons and interests of individual\ncitizens. Do these fundamental principles require, particularly,\nthat no tax should be levied without the intermediate agency of\nthe States? The Confederation itself authorizes a direct tax, to\na certain extent, on the post office. The power of coinage has\nbeen so construed by Congress as to levy a tribute immediately\nfrom that source also. But pretermitting these instances, was it\nnot 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\nrender it an immediate source of general revenue? Had not\nCongress repeatedly recommended this measure as not inconsistent\nwith the fundamental principles of the Confederation? Had not\nevery State but one; had not New York herself, so far complied\nwith the plan of Congress as to recognize the PRINCIPLE of the\ninnovation? Do these principles, in fine, require that the\npowers of the general government should be limited, and that,\nbeyond this limit, the States should be left in possession of\ntheir sovereignty and independence? We have seen that in the new\ngovernment, as in the old, the general powers are limited; and\nthat the States, in all unenumerated cases, are left in the\nenjoyment of their sovereign and independent jurisdiction. The\ntruth is, that the great principles of the Constitution proposed\nby the convention may be considered less as absolutely new, than\nas the expansion of principles which are found in the articles of\nConfederation. The misfortune under the latter system has been,\nthat these principles are so feeble and confined as to justify\nall the charges of inefficiency which have been urged against it,\nand to require a degree of enlargement which gives to the new\nsystem the aspect of an entire transformation of the old. In one\nparticular it is admitted that the convention have departed from\nthe tenor of their commission. Instead of reporting a plan\nrequiring the confirmation OF THE LEGISLATURES OF ALL THE STATES,\nthey have reported a plan which is to be confirmed by the PEOPLE,\nand may be carried into effect by NINE STATES ONLY. It is worthy\nof remark that this objection, though the most plausible, has\nbeen the least urged in the publications which have swarmed\nagainst the convention. The forbearance can only have proceeded\nfrom 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\napproved and called for by the voice of twelve States, comprising\nfifty-nine sixtieths of the people an example still fresh in the\nmemory and indignation of every citizen who has felt for the\nwounded honor and prosperity of his country. As this objection,\ntherefore, has been in a manner waived by those who have\ncriticised the powers of the convention, I dismiss it without\nfurther observation. The THIRD point to be inquired into is, how\nfar considerations of duty arising out of the case itself could\nhave supplied any defect of regular authority. In the preceding\ninquiries the powers of the convention have been analyzed and\ntried with the same rigor, and by the same rules, as if they had\nbeen real and final powers for the establishment of a\nConstitution for the United States. We have seen in what manner\nthey have borne the trial even on that supposition. It is time\nnow to recollect that the powers were merely advisory and\nrecommendatory; that they were so meant by the States, and so\nunderstood by the convention; and that the latter have\naccordingly planned and proposed a Constitution which is to be of\nno more consequence than the paper on which it is written, unless\nit be stamped with the approbation of those to whom it is\naddressed. This reflection places the subject in a point of view\naltogether different, and will enable us to judge with propriety\nof the course taken by the convention. Let us view the ground on\nwhich the convention stood. It may be collected from their\nproceedings, that they were deeply and unanimously impressed with\nthe crisis, which had led their country almost with one voice to\nmake so singular and solemn an experiment for correcting the\nerrors of a system by which this crisis had been produced; that\nthey were no less deeply and unanimously convinced that such a\nreform as they have proposed was absolutely necessary to effect\nthe purposes of their appointment. It could not be unknown to\nthem that the hopes and expectations of the great body of\ncitizens, throughout this great empire, were turned with the\nkeenest anxiety to the event of their deliberations. They had\nevery reason to believe that the contrary sentiments agitated the\nminds and bosoms of every external and internal foe to the\nliberty and prosperity of the United States. They had seen in the\norigin and progress of the experiment, the alacrity with which\nthe PROPOSITION, made by a single State (Virginia), towards a\npartial amendment of the Confederation, had been attended to and\npromoted. They had seen the LIBERTY ASSUMED by a VERY FEW\ndeputies from a VERY FEW States, convened at Annapolis, of\nrecommending a great and critical object, wholly foreign to their\ncommission, not only justified by the public opinion, but\nactually carried into effect by twelve out of the thirteen\nStates. They had seen, in a variety of instances, assumptions by\nCongress, not only of recommendatory, but of operative, powers,\nwarranted, in the public estimation, by occasions and objects\ninfinitely less urgent than those by which their conduct was to\nbe governed. They must have reflected, that in all great changes\nof established governments, forms ought to give way to substance;\nthat a rigid adherence in such cases to the former, would render\nnominal and nugatory the transcendent and precious right of the\npeople to \"abolish or alter their governments as to them shall\nseem most likely to effect their safety and happiness,\" [2] since\nit is impossible for the people spontaneously and universally to\nmove in concert towards their object; and it is therefore\nessential that such changes be instituted by some INFORMAL AND\nUNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable\ncitizen or number of citizens. They must have recollected that it\nwas by this irregular and assumed privilege of proposing to the\npeople plans for their safety and happiness, that the States\nwere first united against the danger with which they were\nthreatened by their ancient government; that committees and\ncongresses were formed for concentrating their efforts and\ndefending their rights; and that CONVENTIONS were ELECTED in THE\nSEVERAL STATES for establishing the constitutions under which\nthey are now governed; nor could it have been forgotten that no\nlittle ill-timed scruples, no zeal for adhering to ordinary\nforms, were anywhere seen, except in those who wished to indulge,\nunder these masks, their secret enmity to the substance contended\nfor. They must have borne in mind, that as the plan to be framed\nand proposed was to be submitted TO THE PEOPLE THEMSELVES, the\ndisapprobation of this supreme authority would destroy it\nforever; its approbation blot out antecedent errors and\nirregularities. It might even have occurred to them, that where a\ndisposition to cavil prevailed, their neglect to execute the\ndegree of power vested in them, and still more their\nrecommendation of any measure whatever, not warranted by their\ncommission, would not less excite animadversion, than a\nrecommendation at once of a measure fully commensurate to the\nnational exigencies. Had the convention, under all these\nimpressions, and in the midst of all these considerations,\ninstead of exercising a manly confidence in their country, by\nwhose confidence they had been so peculiarly distinguished, and\nof pointing out a system capable, in their judgment, of securing\nits happiness, taken the cold and sullen resolution of\ndisappointing its ardent hopes, of sacrificing substance to\nforms, of committing the dearest interests of their country to\nthe uncertainties of delay and the hazard of events, let me ask\nthe man who can raise his mind to one elevated conception, who\ncan awaken in his bosom one patriotic emotion, what judgment\nought to have been pronounced by the impartial world, by the\nfriends of mankind, by every virtuous citizen, on the conduct and\ncharacter of this assembly? Or if there be a man whose\npropensity to condemn is susceptible of no control, let me then\nask what sentence he has in reserve for the twelve States who\nUSURPED THE POWER of sending deputies to the convention, a body\nutterly unknown to their constitutions; for Congress, who\nrecommended the appointment of this body, equally unknown to the\nConfederation; and for the State of New York, in particular,\nwhich first urged and then complied with this unauthorized\ninterposition? But that the objectors may be disarmed of every\npretext, it shall be granted for a moment that the convention\nwere neither authorized by their commission, nor justified by\ncircumstances in proposing a Constitution for their country: does\nit follow that the Constitution ought, for that reason alone, to\nbe rejected? If, according to the noble precept, it be lawful to\naccept good advice even from an enemy, shall we set the ignoble\nexample of refusing such advice even when it is offered by our\nfriends? The prudent inquiry, in all cases, ought surely to be,\nnot so much FROM WHOM the advice comes, as whether the advice be\nGOOD. The sum of what has been here advanced and proved is, that\nthe charge against the convention of exceeding their powers,\nexcept in one instance little urged by the objectors, has no\nfoundation to support it; that if they had exceeded their powers,\nthey were not only warranted, but required, as the confidential\nservants of their country, by the circumstances in which they\nwere placed, to exercise the liberty which they assume; and that\nfinally, if they had violated both their powers and their\nobligations, in proposing a Constitution, this ought nevertheless\nto be embraced, if it be calculated to accomplish the views and\nhappiness of the people of America. How far this character is due\nto the Constitution, is the subject under investigation.\n\nPUBLIUS.\n\n1. Connecticut and Rhode Island. Declaration of Independence.\n", "date": "Friday, January 18, 1788", "title": "The Powers of the Convention to Form a Mixed Government Examined and Sustained", "paper_id": 40, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nTHE Constitution proposed by the convention may be considered\nunder two general points of view. The FIRST relates to the sum or\nquantity of power which it vests in the government, including\nthe restraints imposed on the States. The SECOND, to the\nparticular structure of the government, and the distribution of\nthis power among its several branches. Under the FIRST view of\nthe subject, two important questions arise: 1. Whether any part\nof the powers transferred to the general government be\nunnecessary or improper? 2. Whether the entire mass of them be\ndangerous to the portion of jurisdiction left in the several\nStates? Is the aggregate power of the general government greater\nthan ought to have been vested in it? This is the FIRST\nquestion. It cannot have escaped those who have attended with\ncandor to the arguments employed against the extensive powers of\nthe government, that the authors of them have very little\nconsidered how far these powers were necessary means of attaining\na necessary end. They have chosen rather to dwell on the\ninconveniences which must be unavoidably blended with all\npolitical advantages; and on the possible abuses which must be\nincident to every power or trust, of which a beneficial use can\nbe made. This method of handling the subject cannot impose on the\ngood sense of the people of America. It may display the subtlety\nof the writer; it may open a boundless field for rhetoric and\ndeclamation; it may inflame the passions of the unthinking, and\nmay confirm the prejudices of the misthinking: but cool and\ncandid people will at once reflect, that the purest of human\nblessings must have a portion of alloy in them; that the choice\nmust always be made, if not of the lesser evil, at least of the\nGREATER, not the PERFECT, good; and that in every political\ninstitution, a power to advance the public happiness involves a\ndiscretion which may be misapplied and abused. They will see,\ntherefore, that in all cases where power is to be conferred, the\npoint first to be decided is, whether such a power be necessary\nto the public good; as the next will be, in case of an\naffirmative decision, to guard as effectually as possible\nagainst a perversion of the power to the public detriment. That\nwe may form a correct judgment on this subject, it will be proper\nto review the several powers conferred on the government of the\nUnion; and that this may be the more conveniently done they may\nbe reduced into different classes as they relate to the following\ndifferent objects: 1. Security against foreign danger; 2.\nRegulation of the intercourse with foreign nations; 3.\nMaintenance of harmony and proper intercourse among the States;\n4. Certain miscellaneous objects of general utility; 5.\nRestraint of the States from certain injurious acts; 6.\nProvisions for giving due efficacy to all these powers. The\npowers falling within the FIRST class are those of declaring war\nand granting letters of marque; of providing armies and fleets;\nof regulating and calling forth the militia; of levying and\nborrowing money. Security against foreign danger is one of the\nprimitive objects of civil society. It is an avowed and essential\nobject of the American Union. The powers requisite for attaining\nit must be effectually confided to the federal councils. Is the\npower of declaring war necessary? No man will answer this\nquestion in the negative. It would be superfluous, therefore, to\nenter into a proof of the affirmative. The existing Confederation\nestablishes this power in the most ample form. Is the power of\nraising armies and equipping fleets necessary? This is involved\nin the foregoing power. It is involved in the power of\nself-defense. But was it necessary to give an INDEFINITE POWER\nof raising TROOPS, as well as providing fleets; and of\nmaintaining both in PEACE, as well as in war? The answer to these\nquestions has been too far anticipated in another place to admit\nan extensive discussion of them in this place. The answer indeed\nseems to be so obvious and conclusive as scarcely to justify such\na discussion in any place. With what color of propriety could the\nforce necessary for defense be limited by those who cannot limit\nthe force of offense? If a federal Constitution could chain the\nambition or set bounds to the exertions of all other nations,\nthen indeed might it prudently chain the discretion of its own\ngovernment, and set bounds to the exertions for its own safety.\nHow could a readiness for war in time of peace be safely\nprohibited, unless we could prohibit, in like manner, the\npreparations and establishments of every hostile nation? The\nmeans of security can only be regulated by the means and the\ndanger of attack. They will, in fact, be ever determined by these\nrules, and by no others. It is in vain to oppose constitutional\nbarriers to the impulse of self-preservation. It is worse than in\nvain; because it plants in the Constitution itself necessary\nusurpations of power, every precedent of which is a germ of\nunnecessary and multiplied repetitions. If one nation maintains\nconstantly a disciplined army, ready for the service of ambition\nor revenge, it obliges the most pacific nations who may be within\nthe reach of its enterprises to take corresponding precautions.\nThe fifteenth century was the unhappy epoch of military\nestablishments in the time of peace. They were introduced by\nCharles VII. of France. All Europe has followed, or been forced\ninto, the example. Had the example not been followed by other\nnations, all Europe must long ago have worn the chains of a\nuniversal monarch. Were every nation except France now to disband\nits peace establishments, the same event might follow. The\nveteran legions of Rome were an overmatch for the undisciplined\nvalor of all other nations and rendered her the mistress of the\nworld. Not the less true is it, that the liberties of Rome\nproved the final victim to her military triumphs; and that the\nliberties of Europe, as far as they ever existed, have, with few\nexceptions, been the price of her military establishments. A\nstanding force, therefore, is a dangerous, at the same time that\nit may be a necessary, provision. On the smallest scale it has\nits inconveniences. On an extensive scale its consequences may be\nfatal. On any scale it is an object of laudable circumspection\nand precaution. A wise nation will combine all these\nconsiderations; and, whilst it does not rashly preclude itself\nfrom any resource which may become essential to its safety, will\nexert all its prudence in diminishing both the necessity and the\ndanger of resorting to one which may be inauspicious to its\nliberties. The clearest marks of this prudence are stamped on\nthe proposed Constitution. The Union itself, which it cements and\nsecures, destroys every pretext for a military establishment\nwhich could be dangerous. America united, with a handful of\ntroops, or without a single soldier, exhibits a more forbidding\nposture to foreign ambition than America disunited, with a\nhundred thousand veterans ready for combat. It was remarked, on a\nformer occasion, that the want of this pretext had saved the\nliberties of one nation in Europe. Being rendered by her insular\nsituation and her maritime resources impregnable to the armies of\nher neighbors, the rulers of Great Britain have never been able,\nby real or artificial dangers, to cheat the public into an\nextensive peace establishment. The distance of the United States\nfrom the powerful nations of the world gives them the same happy\nsecurity. A dangerous establishment can never be necessary or\nplausible, so long as they continue a united people. But let it\nnever, for a moment, be forgotten that they are indebted for this\nadvantage to the Union alone. The moment of its dissolution will\nbe the date of a new order of things. The fears of the weaker, or\nthe ambition of the stronger States, or Confederacies, will set\nthe same example in the New, as Charles VII. did in the Old\nWorld. The example will be followed here from the same motives\nwhich produced universal imitation there. Instead of deriving\nfrom our situation the precious advantage which Great Britain has\nderived from hers, the face of America will be but a copy of that\nof the continent of Europe. It will present liberty everywhere\ncrushed between standing armies and perpetual taxes. The fortunes\nof disunited America will be even more disastrous than those of\nEurope. The sources of evil in the latter are confined to her own\nlimits. No superior powers of another quarter of the globe\nintrigue among her rival nations, inflame their mutual\nanimosities, 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\nonly of her lot. A plentiful addition of evils would have their\nsource in that relation in which Europe stands to this quarter of\nthe earth, and which no other quarter of the earth bears to\nEurope. This picture of the consequences of disunion cannot be\ntoo highly colored, or too often exhibited. Every man who loves\npeace, every man who loves his country, every man who loves\nliberty, ought to have it ever before his eyes, that he may\ncherish in his heart a due attachment to the Union of America,\nand be able to set a due value on the means of preserving it.\nNext to the effectual establishment of the Union, the best\npossible precaution against danger from standing armies is a\nlimitation of the term for which revenue may be appropriated to\ntheir support. This precaution the Constitution has prudently\nadded. I will not repeat here the observations which I flatter\nmyself have placed this subject in a just and satisfactory\nlight. But it may not be improper to take notice of an argument\nagainst this part of the Constitution, which has been drawn from\nthe policy and practice of Great Britain. It is said that the\ncontinuance of an army in that kingdom requires an annual vote of\nthe legislature; whereas the American Constitution has lengthened\nthis critical period to two years. This is the form in which the\ncomparison is usually stated to the public: but is it a just\nform? Is it a fair comparison? Does the British Constitution\nrestrain the parliamentary discretion to one year? Does the\nAmerican impose on the Congress appropriations for two years? On\nthe contrary, it cannot be unknown to the authors of the fallacy\nthemselves, that the British Constitution fixes no limit whatever\nto the discretion of the legislature, and that the American ties\ndown the legislature to two years, as the longest admissible\nterm. Had the argument from the British example been truly\nstated, it would have stood thus: The term for which supplies\nmay be appropriated to the army establishment, though unlimited\nby the British Constitution, has nevertheless, in practice, been\nlimited by parliamentary discretion to a single year. Now, if in\nGreat Britain, where the House of Commons is elected for seven\nyears; where so great a proportion of the members are elected by\nso small a proportion of the people; where the electors are so\ncorrupted by the representatives, and the representatives so\ncorrupted by the Crown, the representative body can possess a\npower to make appropriations to the army for an indefinite term,\nwithout desiring, or without daring, to extend the term beyond a\nsingle year, ought not suspicion herself to blush, in pretending\nthat the representatives of the United States, elected FREELY by\nthe WHOLE BODY of the people, every SECOND YEAR, cannot be safely\nintrusted with the discretion over such appropriations, expressly\nlimited to the short period of TWO YEARS? A bad cause seldom\nfails to betray itself. Of this truth, the management of the\nopposition to the federal government is an unvaried\nexemplification. But among all the blunders which have been\ncommitted, none is more striking than the attempt to enlist on\nthat side the prudent jealousy entertained by the people, of\nstanding armies. The attempt has awakened fully the public\nattention to that important subject; and has led to\ninvestigations which must terminate in a thorough and universal\nconviction, not only that the constitution has provided the most\neffectual guards against danger from that quarter, but that\nnothing short of a Constitution fully adequate to the national\ndefense and the preservation of the Union, can save America from\nas many standing armies as it may be split into States or\nConfederacies, and from such a progressive augmentation, of these\nestablishments in each, as will render them as burdensome to the\nproperties and ominous to the liberties of the people, as any\nestablishment that can become necessary, under a united and\nefficient government, must be tolerable to the former and safe to\nthe latter. The palpable necessity of the power to provide and\nmaintain a navy has protected that part of the Constitution\nagainst a spirit of censure, which has spared few other parts. It\nmust, indeed, be numbered among the greatest blessings of\nAmerica, that as her Union will be the only source of her\nmaritime strength, so this will be a principal source of her\nsecurity against danger from abroad. In this respect our\nsituation bears another likeness to the insular advantage of\nGreat Britain. The batteries most capable of repelling foreign\nenterprises on our safety, are happily such as can never be\nturned by a perfidious government against our liberties. The\ninhabitants of the Atlantic frontier are all of them deeply\ninterested in this provision for naval protection, and if they\nhave hitherto been suffered to sleep quietly in their beds; if\ntheir property has remained safe against the predatory spirit of\nlicentious adventurers; if their maritime towns have not yet\nbeen compelled to ransom themselves from the terrors of a\nconflagration, by yielding to the exactions of daring and sudden\ninvaders, these instances of good fortune are not to be ascribed\nto the capacity of the existing government for the protection of\nthose from whom it claims allegiance, but to causes that are\nfugitive and fallacious. If we except perhaps Virginia and\nMaryland, which are peculiarly vulnerable on their eastern\nfrontiers, no part of the Union ought to feel more anxiety on\nthis subject than New York. Her seacoast is extensive. A very\nimportant district of the State is an island. The State itself is\npenetrated by a large navigable river for more than fifty\nleagues. The great emporium of its commerce, the great reservoir\nof its wealth, lies every moment at the mercy of events, and may\nalmost be regarded as a hostage for ignominious compliances with\nthe dictates of a foreign enemy, or even with the rapacious\ndemands of pirates and barbarians. Should a war be the result of\nthe precarious situation of European affairs, and all the unruly\npassions attending it be let loose on the ocean, our escape from\ninsults and depredations, not only on that element, but every\npart of the other bordering on it, will be truly miraculous. In\nthe present condition of America, the States more immediately\nexposed to these calamities have nothing to hope from the phantom\nof a general government which now exists; and if their single\nresources were equal to the task of fortifying themselves against\nthe danger, the object to be protected would be almost consumed\nby the means of protecting them. The power of regulating and\ncalling forth the militia has been already sufficiently\nvindicated and explained. The power of levying and borrowing\nmoney, being the sinew of that which is to be exerted in the\nnational defense, is properly thrown into the same class with\nit. This power, also, has been examined already with much\nattention, and has, I trust, been clearly shown to be necessary,\nboth in the extent and form given to it by the Constitution. I\nwill address one additional reflection only to those who contend\nthat the power ought to have been restrained to external\ntaxation by which they mean, taxes on articles imported from\nother countries. It cannot be doubted that this will always be a\nvaluable source of revenue; that for a considerable time it must\nbe a principal source; that at this moment it is an essential\none. But we may form very mistaken ideas on this subject, if we\ndo not call to mind in our calculations, that the extent of\nrevenue drawn from foreign commerce must vary with the\nvariations, both in the extent and the kind of imports; and that\nthese variations do not correspond with the progress of\npopulation, which must be the general measure of the public\nwants. As long as agriculture continues the sole field of labor,\nthe importation of manufactures must increase as the consumers\nmultiply. As soon as domestic manufactures are begun by the hands\nnot called for by agriculture, the imported manufactures will\ndecrease as the numbers of people increase. In a more remote\nstage, the imports may consist in a considerable part of raw\nmaterials, which will be wrought into articles for exportation,\nand will, therefore, require rather the encouragement of\nbounties, than to be loaded with discouraging duties. A system of\ngovernment, meant for duration, ought to contemplate these\nrevolutions, and be able to accommodate itself to them. Some,\nwho have not denied the necessity of the power of taxation, have\ngrounded a very fierce attack against the Constitution, on the\nlanguage in which it is defined. It has been urged and echoed,\nthat the power \"to lay and collect taxes, duties, imposts, and\nexcises, to pay the debts, and provide for the common defense and\ngeneral welfare of the United States,\" amounts to an unlimited\ncommission to exercise every power which may be alleged to be\nnecessary for the common defense or general welfare. No stronger\nproof could be given of the distress under which these writers\nlabor for objections, than their stooping to such a\nmisconstruction. Had no other enumeration or definition of the\npowers of the Congress been found in the Constitution, than the\ngeneral expressions just cited, the authors of the objection\nmight have had some color for it; though it would have been\ndifficult to find a reason for so awkward a form of describing an\nauthority to legislate in all possible cases. A power to destroy\nthe 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\ngeneral welfare. \"But what color can the objection have, when a\nspecification of the objects alluded to by these general terms\nimmediately follows, and is not even separated by a longer pause\nthan a semicolon? If the different parts of the same instrument\nought to be so expounded, as to give meaning to every part which\nwill bear it, shall one part of the same sentence be excluded\naltogether from a share in the meaning; and shall the more\ndoubtful 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\npowers be inserted, if these and all others were meant to be\nincluded in the preceding general power? Nothing is more natural\nnor common than first to use a general phrase, and then to\nexplain and qualify it by a recital of particulars. But the idea\nof an enumeration of particulars which neither explain nor\nqualify the general meaning, and can have no other effect than to\nconfound and mislead, is an absurdity, which, as we are reduced\nto the dilemma of charging either on the authors of the objection\nor on the authors of the Constitution, we must take the liberty\nof supposing, had not its origin with the latter. The objection\nhere is the more extraordinary, as it appears that the language\nused by the convention is a copy from the articles of\nConfederation. The objects of the Union among the States, as\ndescribed in article third, are \"their common defense, security\nof their liberties, and mutual and general welfare. \" The terms\nof article eighth are still more identical: \"All charges of war\nand all other expenses that shall be incurred for the common\ndefense or general welfare, and allowed by the United States in\nCongress, shall be defrayed out of a common treasury,\" etc. A\nsimilar language again occurs in article ninth. Construe either\nof these articles by the rules which would justify the\nconstruction put on the new Constitution, and they vest in the\nexisting Congress a power to legislate in all cases whatsoever.\nBut what would have been thought of that assembly, if, attaching\nthemselves to these general expressions, and disregarding the\nspecifications which ascertain and limit their import, they had\nexercised an unlimited power of providing for the common defense\nand general welfare? I appeal to the objectors themselves,\nwhether they would in that case have employed the same reasoning\nin justification of Congress as they now make use of against the\nconvention. How difficult it is for error to escape its own\ncondemnation!\n\nPUBLIUS.\n", "date": null, "title": "General View of the Powers Conferred by The Constitution", "paper_id": 41, "venue": "For the Independent Journal"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nTHE SECOND class of powers, lodged in the general government,\nconsists of those which regulate the intercourse with foreign\nnations, to wit: to make treaties; to send and receive\nambassadors, other public ministers, and consuls; to define and\npunish piracies and felonies committed on the high seas, and\noffenses 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\ndollars per head, as a discouragement to such importations. This\nclass of powers forms an obvious and essential branch of the\nfederal administration. If we are to be one nation in any\nrespect, it clearly ought to be in respect to other nations. The\npowers to make treaties and to send and receive ambassadors,\nspeak their own propriety. Both of them are comprised in the\narticles of Confederation, with this difference only, that the\nformer is disembarrassed, by the plan of the convention, of an\nexception, under which treaties might be substantially frustrated\nby regulations of the States; and that a power of appointing and\nreceiving \"other public ministers and consuls,\" is expressly\nand very properly added to the former provision concerning\nambassadors. The term ambassador, if taken strictly, as seems to\nbe required by the second of the articles of Confederation,\ncomprehends the highest grade only of public ministers, and\nexcludes the grades which the United States will be most likely\nto prefer, where foreign embassies may be necessary. And under no\nlatitude of construction will the term comprehend consuls. Yet it\nhas been found expedient, and has been the practice of Congress,\nto employ the inferior grades of public ministers, and to send\nand receive consuls. It is true, that where treaties of commerce\nstipulate for the mutual appointment of consuls, whose functions\nare connected with commerce, the admission of foreign consuls may\nfall within the power of making commercial treaties; and that\nwhere no such treaties exist, the mission of American consuls\ninto foreign countries may PERHAPS be covered under the\nauthority, given by the ninth article of the Confederation, to\nappoint all such civil officers as may be necessary for managing\nthe general affairs of the United States. But the admission of\nconsuls into the United States, where no previous treaty has\nstipulated it, seems to have been nowhere provided for. A supply\nof the omission is one of the lesser instances in which the\nconvention have improved on the model before them. But the most\nminute provisions become important when they tend to obviate the\nnecessity or the pretext for gradual and unobserved usurpations\nof power. A list of the cases in which Congress have been\nbetrayed, or forced by the defects of the Confederation, into\nviolations of their chartered authorities, would not a little\nsurprise those who have paid no attention to the subject; and\nwould be no inconsiderable argument in favor of the new\nConstitution, which seems to have provided no less studiously for\nthe lesser, than the more obvious and striking defects of the\nold. The power to define and punish piracies and felonies\ncommitted on the high seas, and offenses against the law of\nnations, belongs with equal propriety to the general government,\nand is a still greater improvement on the articles of\nConfederation. These articles contain no provision for the case\nof offenses against the law of nations; and consequently leave\nit in the power of any indiscreet member to embroil the\nConfederacy with foreign nations. The provision of the federal\narticles on the subject of piracies and felonies extends no\nfurther than to the establishment of courts for the trial of\nthese offenses. The definition of piracies might, perhaps,\nwithout inconveniency, be left to the law of nations; though a\nlegislative definition of them is found in most municipal codes.\nA definition of felonies on the high seas is evidently\nrequisite. Felony is a term of loose signification, even in the\ncommon law of England; and of various import in the statute law\nof that kingdom. But neither the common nor the statute law of\nthat, or of any other nation, ought to be a standard for the\nproceedings of this, unless previously made its own by\nlegislative adoption. The meaning of the term, as defined in the\ncodes of the several States, would be as impracticable as the\nformer would be a dishonorable and illegitimate guide. It is not\nprecisely the same in any two of the States; and varies in each\nwith every revision of its criminal laws. For the sake of\ncertainty and uniformity, therefore, the power of defining\nfelonies in this case was in every respect necessary and proper.\nThe regulation of foreign commerce, having fallen within several\nviews which have been taken of this subject, has been too fully\ndiscussed to need additional proofs here of its being properly\nsubmitted to the federal administration. It were doubtless to be\nwished, that the power of prohibiting the importation of slaves\nhad not been postponed until the year 1808, or rather that it had\nbeen suffered to have immediate operation. But it is not\ndifficult to account, either for this restriction on the general\ngovernment, or for the manner in which the whole clause is\nexpressed. It ought to be considered as a great point gained in\nfavor of humanity, that a period of twenty years may terminate\nforever, within these States, a traffic which has so long and so\nloudly upbraided the barbarism of modern policy; that within that\nperiod, it will receive a considerable discouragement from the\nfederal government, and may be totally abolished, by a\nconcurrence of the few States which continue the unnatural\ntraffic, in the prohibitory example which has been given by so\ngreat a majority of the Union. Happy would it be for the\nunfortunate Africans, if an equal prospect lay before them of\nbeing redeemed from the oppressions of their European brethren!\nAttempts have been made to pervert this clause into an objection\nagainst the Constitution, by representing it on one side as a\ncriminal toleration of an illicit practice, and on another as\ncalculated to prevent voluntary and beneficial emigrations from\nEurope to America. I mention these misconstructions, not with a\nview to give them an answer, for they deserve none, but as\nspecimens of the manner and spirit in which some have thought fit\nto conduct their opposition to the proposed government. The\npowers included in the THIRD class are those which provide for\nthe harmony and proper intercourse among the States. Under this\nhead might be included the particular restraints imposed on the\nauthority of the States, and certain powers of the judicial\ndepartment; but the former are reserved for a distinct class, and\nthe latter will be particularly examined when we arrive at the\nstructure and organization of the government. I shall confine\nmyself to a cursory review of the remaining powers comprehended\nunder this third description, to wit: to regulate commerce among\nthe several States and the Indian tribes; to coin money, regulate\nthe value thereof, and of foreign coin; to provide for the\npunishment of counterfeiting the current coin and secureties of\nthe United States; to fix the standard of weights and measures;\nto establish a uniform rule of naturalization, and uniform laws\nof bankruptcy, to prescribe the manner in which the public acts,\nrecords, and judicial proceedings of each State shall be proved,\nand the effect they shall have in other States; and to establish\npost offices and post roads. The defect of power in the existing\nConfederacy to regulate the commerce between its several members,\nis in the number of those which have been clearly pointed out by\nexperience. To the proofs and remarks which former papers have\nbrought into view on this subject, it may be added that without\nthis supplemental provision, the great and essential power of\nregulating foreign commerce would have been incomplete and\nineffectual. A very material object of this power was the relief\nof the States which import and export through other States, from\nthe improper contributions levied on them by the latter. Were\nthese at liberty to regulate the trade between State and State,\nit must be foreseen that ways would be found out to load the\narticles of import and export, during the passage through their\njurisdiction, with duties which would fall on the makers of the\nlatter and the consumers of the former. We may be assured by past\nexperience, that such a practice would be introduced by future\ncontrivances; and both by that and a common knowledge of human\naffairs, that it would nourish unceasing animosities, and not\nimprobably terminate in serious interruptions of the public\ntranquillity. To those who do not view the question through the\nmedium of passion or of interest, the desire of the commercial\nStates to collect, in any form, an indirect revenue from their\nuncommercial neighbors, must appear not less impolitic than it is\nunfair; since it would stimulate the injured party, by resentment\nas well as interest, to resort to less convenient channels for\ntheir foreign trade. But the mild voice of reason, pleading the\ncause of an enlarged and permanent interest, is but too often\ndrowned, before public bodies as well as individuals, by the\nclamors of an impatient avidity for immediate and immoderate\ngain. The necessity of a superintending authority over the\nreciprocal trade of confederated States, has been illustrated by\nother examples as well as our own. In Switzerland, where the\nUnion is so very slight, each canton is obliged to allow to\nmerchandises a passage through its jurisdiction into other\ncantons, without an augmentation of the tolls. In Germany it is a\nlaw of the empire, that the princes and states shall not lay\ntolls or customs on bridges, rivers, or passages, without the\nconsent of the emperor and the diet; though it appears from a\nquotation in an antecedent paper, that the practice in this, as\nin many other instances in that confederacy, has not followed the\nlaw, and has produced there the mischiefs which have been\nforeseen here. Among the restraints imposed by the Union of the\nNetherlands on its members, one is, that they shall not establish\nimposts disadvantageous to their neighbors, without the general\npermission. The regulation of commerce with the Indian tribes is\nvery properly unfettered from two limitations in the articles of\nConfederation, which render the provision obscure and\ncontradictory. The power is there restrained to Indians, not\nmembers of any of the States, and is not to violate or infringe\nthe legislative right of any State within its own limits. What\ndescription of Indians are to be deemed members of a State, is\nnot yet settled, and has been a question of frequent perplexity\nand contention in the federal councils. And how the trade with\nIndians, though not members of a State, yet residing within its\nlegislative jurisdiction, can be regulated by an external\nauthority, without so far intruding on the internal rights of\nlegislation, is absolutely incomprehensible. This is not the only\ncase in which the articles of Confederation have inconsiderately\nendeavored to accomplish impossibilities; to reconcile a partial\nsovereignty in the Union, with complete sovereignty in the\nStates; to subvert a mathematical axiom, by taking away a part,\nand letting the whole remain. All that need be remarked on the\npower to coin money, regulate the value thereof, and of foreign\ncoin, is, that by providing for this last case, the Constitution\nhas supplied a material omission in the articles of\nConfederation. The authority of the existing Congress is\nrestrained to the regulation of coin STRUCK by their own\nauthority, or that of the respective States. It must be seen at\nonce that the proposed uniformity in the VALUE of the current\ncoin might be destroyed by subjecting that of foreign coin to the\ndifferent regulations of the different States. The punishment of\ncounterfeiting the public securities, as well as the current\ncoin, is submitted of course to that authority which is to secure\nthe value of both. The regulation of weights and measures is\ntransferred from the articles of Confederation, and is founded on\nlike considerations with the preceding power of regulating coin.\nThe dissimilarity in the rules of naturalization has long been\nremarked as a fault in our system, and as laying a foundation for\nintricate and delicate questions. In the fourth article of the\nConfederation, it is declared \"that the FREE INHABITANTS of each\nof these States, paupers, vagabonds, and fugitives from justice,\nexcepted, shall be entitled to all privileges and immunities of\nFREE CITIZENS in the several States; and THE PEOPLE of each State\nshall, in every other, enjoy all the privileges of trade and\ncommerce,\" etc. There is a confusion of language here, which is\nremarkable. Why the terms FREE INHABITANTS are used in one part\nof the article, FREE CITIZENS in another, and PEOPLE in another;\nor what was meant by superadding to \"all privileges and\nimmunities of free citizens,\" \"all the privileges of trade and\ncommerce,\"\ncannot easily be determined. It seems to be a construction\nscarcely avoidable, however, that those who come under the\ndenomination of FREE INHABITANTS of a State, although not\ncitizens of such State, are entitled, in every other State, to\nall the privileges of FREE CITIZENS of the latter; that is, to\ngreater privileges than they may be entitled to in their own\nState: so that it may be in the power of a particular State, or\nrather every State is laid under a necessity, not only to confer\nthe rights of citizenship in other States upon any whom it may\nadmit to such rights within itself, but upon any whom it may\nallow to become inhabitants within its jurisdiction. But were an\nexposition of the term \"inhabitants\" to be admitted which\nwould confine the stipulated privileges to citizens alone, the\ndifficulty is diminished only, not removed. The very improper\npower would still be retained by each State, of naturalizing\naliens in every other State. In one State, residence for a short\nterm confirms all the rights of citizenship: in another,\nqualifications of greater importance are required. An alien,\ntherefore, legally incapacitated for certain rights in the\nlatter, may, by previous residence only in the former, elude his\nincapacity; and thus the law of one State be preposterously\nrendered paramount to the law of another, within the jurisdiction\nof the other. We owe it to mere casualty, that very serious\nembarrassments on this subject have been hitherto escaped. By the\nlaws of several States, certain descriptions of aliens, who had\nrendered themselves obnoxious, were laid under interdicts\ninconsistent not only with the rights of citizenship but with the\nprivilege of residence. What would have been the consequence, if\nsuch persons, by residence or otherwise, had acquired the\ncharacter of citizens under the laws of another State, and then\nasserted their rights as such, both to residence and citizenship,\nwithin the State proscribing them? Whatever the legal\nconsequences might have been, other consequences would probably\nhave resulted, of too serious a nature not to be provided\nagainst. The new Constitution has accordingly, with great\npropriety, made provision against them, and all others proceeding\nfrom the defect of the Confederation on this head, by authorizing\nthe general government to establish a uniform rule of\nnaturalization throughout the United States. The power of\nestablishing uniform laws of bankruptcy is so intimately\nconnected with the regulation of commerce, and will prevent so\nmany frauds where the parties or their property may lie or be\nremoved into different States, that the expediency of it seems\nnot likely to be drawn into question. The power of prescribing\nby general laws, the manner in which the public acts, records and\njudicial proceedings of each State shall be proved, and the\neffect they shall have in other States, is an evident and\nvaluable improvement on the clause relating to this subject in\nthe articles of Confederation. The meaning of the latter is\nextremely indeterminate, and can be of little importance under\nany interpretation which it will bear. The power here established\nmay be rendered a very convenient instrument of justice, and be\nparticularly beneficial on the borders of contiguous States,\nwhere the effects liable to justice may be suddenly and secretly\ntranslated, in any stage of the process, within a foreign\njurisdiction. The power of establishing post roads must, in\nevery view, be a harmless power, and may, perhaps, by judicious\nmanagement, become productive of great public conveniency.\nNothing which tends to facilitate the intercourse between the\nStates can be deemed unworthy of the public care.\n\nPUBLIUS.\n", "date": "Tuesday, January 22, 1788", "title": "The Powers Conferred by the Constitution Further Considered", "paper_id": 42, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nTHE FOURTH class comprises the following miscellaneous powers:1.\nA power \"to promote the progress of science and useful arts, by\nsecuring, for a limited time, to authors and inventors, the\nexclusive right to their respective writings and discoveries.\n\"The utility of this power will scarcely be questioned. The\ncopyright of authors has been solemnly adjudged, in Great\nBritain, to be a right of common law. The right to useful\ninventions seems with equal reason to belong to the inventors.\nThe public good fully coincides in both cases with the claims of\nindividuals. The States cannot separately make effectual\nprovisions for either of the cases, and most of them have\nanticipated the decision of this point, by laws passed at the\ninstance of Congress. 2. \"To exercise exclusive legislation, in\nall cases whatsoever, over such district (not exceeding ten miles\nsquare) as may, by cession of particular States and the\nacceptance of Congress, become the seat of the government of the\nUnited States; and to exercise like authority over all places\npurchased by the consent of the legislatures of the States in\nwhich the same shall be, for the erection of forts, magazines,\narsenals, dockyards, and other needful buildings. \"The\nindispensable necessity of complete authority at the seat of\ngovernment, carries its own evidence with it. It is a power\nexercised by every legislature of the Union, I might say of the\nworld, by virtue of its general supremacy. Without it, not only\nthe public authority might be insulted and its proceedings\ninterrupted with impunity; but a dependence of the members of the\ngeneral government on the State comprehending the seat of the\ngovernment, for protection in the exercise of their duty, might\nbring on the national councils an imputation of awe or influence,\nequally dishonorable to the government and dissatisfactory to the\nother members of the Confederacy. This consideration has the more\nweight, as the gradual accumulation of public improvements at the\nstationary residence of the government would be both too great a\npublic pledge to be left in the hands of a single State, and\nwould create so many obstacles to a removal of the government, as\nstill further to abridge its necessary independence. The extent\nof this federal district is sufficiently circumscribed to satisfy\nevery jealousy of an opposite nature. And as it is to be\nappropriated to this use with the consent of the State ceding it;\nas the State will no doubt provide in the compact for the rights\nand the consent of the citizens inhabiting it; as the inhabitants\nwill find sufficient inducements of interest to become willing\nparties to the cession; as they will have had their voice in the\nelection of the government which is to exercise authority over\nthem; as a municipal legislature for local purposes, derived from\ntheir own suffrages, will of course be allowed them; and as the\nauthority of the legislature of the State, and of the inhabitants\nof the ceded part of it, to concur in the cession, will be\nderived from the whole people of the State in their adoption of\nthe Constitution, every imaginable objection seems to be\nobviated. The necessity of a like authority over forts,\nmagazines, etc., established by the general government, is not\nless evident. The public money expended on such places, and the\npublic property deposited in them, requires that they should be\nexempt from the authority of the particular State. Nor would it\nbe proper for the places on which the security of the entire\nUnion may depend, to be in any degree dependent on a particular\nmember of it. All objections and scruples are here also obviated,\nby requiring the concurrence of the States concerned, in every\nsuch establishment. 3. \"To declare the punishment of treason,\nbut no attainder of treason shall work corruption of blood, or\nforfeiture, except during the life of the person attained. \"As\ntreason may be committed against the United States, the authority\nof the United States ought to be enabled to punish it. But as\nnew-fangled and artificial treasons have been the great engines\nby which violent factions, the natural offspring of free\ngovernment, have usually wreaked their alternate malignity on\neach other, the convention have, with great judgment, opposed a\nbarrier to this peculiar danger, by inserting a constitutional\ndefinition 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\nits author. 4. \"To admit new States into the Union; but no new\nState shall be formed or erected within the jurisdiction of any\nother State; nor any State be formed by the junction of two or\nmore States, or parts of States, without the consent of the\nlegislatures of the States concerned, as well as of the Congress.\n\"In the articles of Confederation, no provision is found on this\nimportant subject. Canada was to be admitted of right, on her\njoining in the measures of the United States; and the other\nCOLONIES, by which were evidently meant the other British\ncolonies, at the discretion of nine States. The eventual\nestablishment of NEW STATES seems to have been overlooked by the\ncompilers of that instrument. We have seen the inconvenience of\nthis omission, and the assumption of power into which Congress\nhave been led by it. With great propriety, therefore, has the new\nsystem supplied the defect. The general precaution, that no new\nStates 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\nparticular precaution against the erection of new States, by the\npartition of a State without its consent, quiets the jealousy of\nthe larger States; as that of the smaller is quieted by a like\nprecaution, against a junction of States without their consent.\n5. \"To dispose of and make all needful rules and regulations\nrespecting the territory or other property belonging to the\nUnited States, with a proviso, that nothing in the Constitution\nshall be so construed as to prejudice any claims of the United\nStates, or of any particular State. \"This is a power of very\ngreat importance, and required by considerations similar to those\nwhich show the propriety of the former. The proviso annexed is\nproper in itself, and was probably rendered absolutely necessary\nby jealousies and questions concerning the Western territory\nsufficiently known to the public. 6. \"To guarantee to every\nState in the Union a republican form of government; to protect\neach of them against invasion; and on application of the\nlegislature, or of the executive (when the legislature cannot be\nconvened), against domestic violence. \"In a confederacy founded\non republican principles, and composed of republican members, the\nsuperintending government ought clearly to possess authority to\ndefend the system against aristocratic or monarchial\ninnovations. The more intimate the nature of such a union may be,\nthe greater interest have the members in the political\ninstitutions of each other; and the greater right to insist that\nthe forms of government under which the compact was entered into\nshould be SUBSTANTIALLY maintained. But a right implies a remedy;\nand where else could the remedy be deposited, than where it is\ndeposited by the Constitution? Governments of dissimilar\nprinciples and forms have been found less adapted to a federal\ncoalition of any sort, than those of a kindred nature. \"As the\nconfederate republic of Germany,\" says Montesquieu, \"consists\nof free cities and petty states, subject to different princes,\nexperience shows us that it is more imperfect than that of\nHolland and Switzerland. \" \"Greece was undone,\" he adds, \"as\nsoon as the king of Macedon obtained a seat among the\nAmphictyons. \" In the latter case, no doubt, the\ndisproportionate force, as well as the monarchical form, of the\nnew confederate, had its share of influence on the events. It may\npossibly be asked, what need there could be of such a\nprecaution, and whether it may not become a pretext for\nalterations in the State governments, without the concurrence of\nthe States themselves. These questions admit of ready answers. If\nthe interposition of the general government should not be\nneeded, the provision for such an event will be a harmless\nsuperfluity only in the Constitution. But who can say what\nexperiments may be produced by the caprice of particular States,\nby the ambition of enterprising leaders, or by the intrigues and\ninfluence of foreign powers? To the second question it may be\nanswered, that if the general government should interpose by\nvirtue of this constitutional authority, it will be, of course,\nbound to pursue the authority. But the authority extends no\nfurther than to a GUARANTY of a republican form of government,\nwhich supposes a pre-existing government of the form which is to\nbe guaranteed. As long, therefore, as the existing republican\nforms are continued by the States, they are guaranteed by the\nfederal Constitution. Whenever the States may choose to\nsubstitute other republican forms, they have a right to do so,\nand to claim the federal guaranty for the latter. The only\nrestriction imposed on them is, that they shall not exchange\nrepublican for antirepublican Constitutions; a restriction\nwhich, it is presumed, will hardly be considered as a grievance.\nA protection against invasion is due from every society to the\nparts composing it. The latitude of the expression here used\nseems to secure each State, not only against foreign hostility,\nbut against ambitious or vindictive enterprises of its more\npowerful neighbors. The history, both of ancient and modern\nconfederacies, proves that the weaker members of the union ought\nnot to be insensible to the policy of this article. Protection\nagainst domestic violence is added with equal propriety. It has\nbeen remarked, that even among the Swiss cantons, which, properly\nspeaking, are not under one government, provision is made for\nthis object; and the history of that league informs us that\nmutual aid is frequently claimed and afforded; and as well by\nthe most democratic, as the other cantons. A recent and\nwell-known event among ourselves has warned us to be prepared for\nemergencies of a like nature. At first view, it might seem not\nto square with the republican theory, to suppose, either that a\nmajority have not the right, or that a minority will have the\nforce, to subvert a government; and consequently, that the\nfederal interposition can never be required, but when it would be\nimproper. But theoretic reasoning, in this as in most other\ncases, must be qualified by the lessons of practice. Why may not\nillicit combinations, for purposes of violence, be formed as\nwell by a majority of a State, especially a small State as by a\nmajority of a county, or a district of the same State; and if\nthe authority of the State ought, in the latter case, to protect\nthe local magistracy, ought not the federal authority, in the\nformer, to support the State authority? Besides, there are\ncertain parts of the State constitutions which are so interwoven\nwith the federal Constitution, that a violent blow cannot be\ngiven to the one without communicating the wound to the other.\nInsurrections in a State will rarely induce a federal\ninterposition, unless the number concerned in them bear some\nproportion to the friends of government. It will be much better\nthat the violence in such cases should be repressed by the\nsuperintending power, than that the majority should be left to\nmaintain their cause by a bloody and obstinate contest. The\nexistence of a right to interpose, will generally prevent the\nnecessity of exerting it. Is it true that force and right are\nnecessarily on the same side in republican governments? May not\nthe minor party possess such a superiority of pecuniary\nresources, of military talents and experience, or of secret\nsuccors from foreign powers, as will render it superior also in\nan appeal to the sword? May not a more compact and advantageous\nposition turn the scale on the same side, against a superior\nnumber so situated as to be less capable of a prompt and\ncollected exertion of its strength? Nothing can be more\nchimerical than to imagine that in a trial of actual force,\nvictory may be calculated by the rules which prevail in a census\nof the inhabitants, or which determine the event of an election!\nMay it not happen, in fine, that the minority of CITIZENS may\nbecome a majority of PERSONS, by the accession of alien\nresidents, of a casual concourse of adventurers, or of those whom\nthe constitution of the State has not admitted to the rights of\nsuffrage? I take no notice of an unhappy species of population\nabounding in some of the States, who, during the calm of regular\ngovernment, are sunk below the level of men; but who, in the\ntempestuous scenes of civil violence, may emerge into the human\ncharacter, and give a superiority of strength to any party with\nwhich they may associate themselves. In cases where it may be\ndoubtful on which side justice lies, what better umpires could\nbe desired by two violent factions, flying to arms, and tearing a\nState to pieces, than the representatives of confederate States,\nnot heated by the local flame? To the impartiality of judges,\nthey would unite the affection of friends. Happy would it be if\nsuch a remedy for its infirmities could be enjoyed by all free\ngovernments; if a project equally effectual could be established\nfor the universal peace of mankind! Should it be asked, what is\nto be the redress for an insurrection pervading all the States,\nand comprising a superiority of the entire force, though not a\nconstitutional right? the answer must be, that such a case, as\nit would be without the compass of human remedies, so it is\nfortunately not within the compass of human probability; and\nthat it is a sufficient recommendation of the federal\nConstitution, that it diminishes the risk of a calamity for which\nno possible constitution can provide a cure. Among the\nadvantages of a confederate republic enumerated by Montesquieu,\nan important one is, \"that should a popular insurrection happen\nin one of the States, the others are able to quell it. Should\nabuses creep into one part, they are reformed by those that\nremain sound. \"7. \"To consider all debts contracted, and\nengagements entered into, before the adoption of this\nConstitution, as being no less valid against the United States,\nunder this Constitution, than under the Confederation. \"This\ncan only be considered as a declaratory proposition; and may have\nbeen inserted, among other reasons, for the satisfaction of the\nforeign creditors of the United States, who cannot be strangers\nto the pretended doctrine, that a change in the political form of\ncivil society has the magical effect of dissolving its moral\nobligations. Among the lesser criticisms which have been\nexercised on the Constitution, it has been remarked that the\nvalidity of engagements ought to have been asserted in favor of\nthe United States, as well as against them; and in the spirit\nwhich usually characterizes little critics, the omission has been\ntransformed and magnified into a plot against the national\nrights. The authors of this discovery may be told, what few\nothers need to be informed of, that as engagements are in their\nnature reciprocal, an assertion of their validity on one side,\nnecessarily involves a validity on the other side; and that as\nthe article is merely declaratory, the establishment of the\nprinciple in one case is sufficient for every case. They may be\nfurther told, that every constitution must limit its precautions\nto dangers that are not altogether imaginary; and that no real\ndanger can exist that the government would DARE, with, or even\nwithout, this constitutional declaration before it, to remit the\ndebts justly due to the public, on the pretext here condemned. 8.\n\"To provide for amendments to be ratified by three fourths of\nthe States under two exceptions only. \"That useful alterations\nwill be suggested by experience, could not but be foreseen. It\nwas requisite, therefore, that a mode for introducing them should\nbe provided. The mode preferred by the convention seems to be\nstamped with every mark of propriety. It guards equally against\nthat extreme facility, which would render the Constitution too\nmutable; and that extreme difficulty, which might perpetuate its\ndiscovered faults. It, moreover, equally enables the general and\nthe State governments to originate the amendment of errors, as\nthey may be pointed out by the experience on one side, or on the\nother. The exception in favor of the equality of suffrage in the\nSenate, was probably meant as a palladium to the residuary\nsovereignty of the States, implied and secured by that principle\nof representation in one branch of the legislature; and was\nprobably 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. 9.\n\"The ratification of the conventions of nine States shall be\nsufficient for the establishment of this Constitution between the\nStates, ratifying the same. \"This article speaks for itself.\nThe express authority of the people alone could give due validity\nto the Constitution. To have required the unanimous ratification\nof the thirteen States, would have subjected the essential\ninterests of the whole to the caprice or corruption of a single\nmember. It would have marked a want of foresight in the\nconvention, which our own experience would have rendered\ninexcusable. Two questions of a very delicate nature present\nthemselves on this occasion: 1. On what principle the\nConfederation, which stands in the solemn form of a compact among\nthe States, can be superseded without the unanimous consent of\nthe parties to it? 2. What relation is to subsist between the\nnine or more States ratifying the Constitution, and the remaining\nfew who do not become parties to it? The first question is\nanswered at once by recurring to the absolute necessity of the\ncase; to the great principle of self-preservation; to the\ntranscendent law of nature and of nature's God, which declares\nthat the safety and happiness of society are the objects at which\nall political institutions aim, and to which all such\ninstitutions must be sacrificed. PERHAPS, also, an answer may be\nfound without searching beyond the principles of the compact\nitself. It has been heretofore noted among the defects of the\nConfederation, that in many of the States it had received no\nhigher sanction than a mere legislative ratification. The\nprinciple of reciprocality seems to require that its obligation\non the other States should be reduced to the same standard. A\ncompact between independent sovereigns, founded on ordinary acts\nof legislative authority, can pretend to no higher validity than\na league or treaty between the parties. It is an established\ndoctrine on the subject of treaties, that all the articles are\nmutually conditions of each other; that a breach of any one\narticle is a breach of the whole treaty; and that a breach,\ncommitted by either of the parties, absolves the others, and\nauthorizes them, if they please, to pronounce the compact\nviolated and void. Should it unhappily be necessary to appeal to\nthese delicate truths for a justification for dispensing with\nthe consent of particular States to a dissolution of the federal\npact, will not the complaining parties find it a difficult task\nto answer the MULTIPLIED and IMPORTANT infractions with which\nthey may be confronted? The time has been when it was incumbent\non us all to veil the ideas which this paragraph exhibits. The\nscene is now changed, and with it the part which the same motives\ndictate. The second question is not less delicate; and the\nflattering prospect of its being merely hypothetical forbids an\novercurious discussion of it. It is one of those cases which must\nbe left to provide for itself. In general, it may be observed,\nthat although no political relation can subsist between the\nassenting and dissenting States, yet the moral relations will\nremain uncancelled. The claims of justice, both on one side and\non the other, will be in force, and must be fulfilled; the\nrights of humanity must in all cases be duly and mutually\nrespected; whilst considerations of a common interest, and,\nabove all, the remembrance of the endearing scenes which are\npast, and the anticipation of a speedy triumph over the obstacles\nto reunion, will, it is hoped, not urge in vain MODERATION on one\nside, and PRUDENCE on the other.\n\nPUBLIUS.\n", "date": null, "title": "The Same Subject Continued (The Powers Conferred by the Constitution Further Considered)", "paper_id": 43, "venue": "For the Independent Journal"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nA FIFTH class of provisions in favor of the federal authority\nconsists of the following restrictions on the authority of the\nseveral States:1. \"No State shall enter into any treaty,\nalliance, or confederation; grant letters of marque and reprisal;\ncoin money; emit bills of credit; make any thing but gold and\nsilver a legal tender in payment of debts; pass any bill of\nattainder, ex-post-facto law, or law impairing the obligation of\ncontracts; or grant any title of nobility. \"The prohibition\nagainst treaties, alliances, and confederations makes a part of\nthe existing articles of Union; and for reasons which need no\nexplanation, is copied into the new Constitution. The prohibition\nof letters of marque is another part of the old system, but is\nsomewhat extended in the new. According to the former, letters of\nmarque could be granted by the States after a declaration of war;\naccording to the latter, these licenses must be obtained, as well\nduring war as previous to its declaration, from the government of\nthe United States. This alteration is fully justified by the\nadvantage of uniformity in all points which relate to foreign\npowers; and of immediate responsibility to the nation in all\nthose for whose conduct the nation itself is to be responsible.\nThe right of coining money, which is here taken from the States,\nwas left in their hands by the Confederation, as a concurrent\nright with that of Congress, under an exception in favor of the\nexclusive right of Congress to regulate the alloy and value. In\nthis instance, also, the new provision is an improvement on the\nold. Whilst the alloy and value depended on the general\nauthority, a right of coinage in the particular States could have\nno other effect than to multiply expensive mints and diversify\nthe forms and weights of the circulating pieces. The latter\ninconveniency defeats one purpose for which the power was\noriginally submitted to the federal head; and as far as the\nformer might prevent an inconvenient remittance of gold and\nsilver to the central mint for recoinage, the end can be as well\nattained by local mints established under the general authority.\nThe extension of the prohibition to bills of credit must give\npleasure to every citizen, in proportion to his love of justice\nand his knowledge of the true springs of public prosperity. The\nloss which America has sustained since the peace, from the\npestilent effects of paper money on the necessary confidence\nbetween man and man, on the necessary confidence in the public\ncouncils, on the industry and morals of the people, and on the\ncharacter of republican government, constitutes an enormous debt\nagainst the States chargeable with this unadvised measure, which\nmust long remain unsatisfied; or rather an accumulation of guilt,\nwhich can be expiated no otherwise than by a voluntary sacrifice\non the altar of justice, of the power which has been the\ninstrument of it. In addition to these persuasive\nconsiderations, it may be observed, that the same reasons which\nshow the necessity of denying to the States the power of\nregulating coin, prove with equal force that they ought not to be\nat liberty to substitute a paper medium in the place of coin. Had\nevery State a right to regulate the value of its coin, there\nmight be as many different currencies as States, and thus the\nintercourse among them would be impeded; retrospective\nalterations in its value might be made, and thus the citizens of\nother States be injured, and animosities be kindled among the\nStates themselves. The subjects of foreign powers might suffer\nfrom the same cause, and hence the Union be discredited and\nembroiled by the indiscretion of a single member. No one of these\nmischiefs is less incident to a power in the States to emit paper\nmoney, than to coin gold or silver. The power to make any thing\nbut gold and silver a tender in payment of debts, is withdrawn\nfrom the States, on the same principle with that of issuing a\npaper currency. Bills of attainder, ex-post-facto laws, and laws\nimpairing the obligation of contracts, are contrary to the first\nprinciples of the social compact, and to every principle of sound\nlegislation. The two former are expressly prohibited by the\ndeclarations prefixed to some of the State constitutions, and all\nof them are prohibited by the spirit and scope of these\nfundamental charters. Our own experience has taught us,\nnevertheless, that additional fences against these dangers ought\nnot to be omitted. Very properly, therefore, have the convention\nadded this constitutional bulwark in favor of personal security\nand private rights; and I am much deceived if they have not, in\nso doing, as faithfully consulted the genuine sentiments as the\nundoubted interests of their constituents. The sober people of\nAmerica are weary of the fluctuating policy which has directed\nthe public councils. They have seen with regret and indignation\nthat sudden changes and legislative interferences, in cases\naffecting personal rights, become jobs in the hands of\nenterprising and influential speculators, and snares to the\nmore-industrious and less-informed part of the community. They\nhave seen, too, that one legislative interference is but the\nfirst link of a long chain of repetitions, every subsequent\ninterference being naturally produced by the effects of the\npreceding. They very rightly infer, therefore, that some thorough\nreform is wanting, which will banish speculations on public\nmeasures, inspire a general prudence and industry, and give a\nregular course to the business of society. The prohibition with\nrespect to titles of nobility is copied from the articles of\nConfederation and needs no comment. 2. \"No State shall, without\nthe consent of the Congress, lay any imposts or duties on imports\nor exports, except what may be absolutely necessary for executing\nits inspection laws, and the net produce of all duties and\nimposts laid by any State on imports or exports, shall be for the\nuse of the treasury of the United States; and all such laws shall\nbe subject to the revision and control of the Congress. No State\nshall, without the consent of Congress, lay any duty on tonnage,\nkeep troops or ships of war in time of peace, enter into any\nagreement or compact with another State, or with a foreign power,\nor engage in war unless actually invaded, or in such imminent\ndanger as will not admit of delay. \"The restraint on the power\nof the States over imports and exports is enforced by all the\narguments which prove the necessity of submitting the regulation\nof trade to the federal councils. It is needless, therefore, to\nremark further on this head, than that the manner in which the\nrestraint is qualified seems well calculated at once to secure to\nthe States a reasonable discretion in providing for the\nconveniency of their imports and exports, and to the United\nStates a reasonable check against the abuse of this discretion.\nThe remaining particulars of this clause fall within reasonings\nwhich are either so obvious, or have been so fully developed,\nthat they may be passed over without remark. The SIXTH and last\nclass consists of the several powers and provisions by which\nefficacy is given to all the rest. 1. Of these the first is, the\n\"power to make all laws which shall be necessary and proper for\ncarrying into execution the foregoing powers, and all other\npowers vested by this Constitution in the government of the\nUnited States, or in any department or officer thereof. \"Few\nparts of the Constitution have been assailed with more\nintemperance than this; yet on a fair investigation of it, no\npart can appear more completely invulnerable. Without the\nSUBSTANCE of this power, the whole Constitution would be a dead\nletter. Those who object to the article, therefore, as a part of\nthe Constitution, can only mean that the FORM of the provision is\nimproper. But have they considered whether a better form could\nhave been substituted? There are four other possible methods\nwhich the Constitution might have taken on this subject. They\nmight have copied the second article of the existing\nConfederation, which would have prohibited the exercise of any\npower not EXPRESSLY delegated; they might have attempted a\npositive enumeration of the powers comprehended under the general\nterms \"necessary and proper\"; they might have attempted a\nnegative enumeration of them, by specifying the powers excepted\nfrom the general definition; they might have been altogether\nsilent on the subject, leaving these necessary and proper powers\nto construction and inference. Had the convention taken the\nfirst method of adopting the second article of Confederation, it\nis evident that the new Congress would be continually exposed, as\ntheir predecessors have been, to the alternative of construing\nthe term \"EXPRESSLY\" with so much rigor, as to disarm the\ngovernment of all real authority whatever, or with so much\nlatitude as to destroy altogether the force of the restriction.\nIt would be easy to show, if it were necessary, that no important\npower, delegated by the articles of Confederation, has been or\ncan be executed by Congress, without recurring more or less to\nthe doctrine of CONSTRUCTION or IMPLICATION. As the powers\ndelegated under the new system are more extensive, the government\nwhich is to administer it would find itself still more distressed\nwith the alternative of betraying the public interests by doing\nnothing, or of violating the Constitution by exercising powers\nindispensably necessary and proper, but, at the same time, not\nEXPRESSLY granted. Had the convention attempted a positive\nenumeration of the powers necessary and proper for carrying their\nother powers into effect, the attempt would have involved a\ncomplete digest of laws on every subject to which the\nConstitution relates; accommodated too, not only to the existing\nstate 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\nthe general power, must always necessarily vary with that object,\nand be often properly varied whilst the object remains the same.\nHad they attempted to enumerate the particular powers or means\nnot necessary or proper for carrying the general powers into\nexecution, the task would have been no less chimerical; and would\nhave been liable to this further objection, that every defect in\nthe enumeration would have been equivalent to a positive grant of\nauthority. If, to avoid this consequence, they had attempted a\npartial enumeration of the exceptions, and described the residue\nby the general terms, NOT NECESSARY OR PROPER, it must have\nhappened that the enumeration would comprehend a few of the\nexcepted powers only; that these would be such as would be least\nlikely to be assumed or tolerated, because the enumeration would\nof course select such as would be least necessary or proper; and\nthat the unnecessary and improper powers included in the\nresiduum, would be less forcibly excepted, than if no partial\nenumeration had been made. Had the Constitution been silent on\nthis head, there can be no doubt that all the particular powers\nrequisite as means of executing the general powers would have\nresulted to the government, by unavoidable implication. No axiom\nis more clearly established in law, or in reason, than that\nwherever the end is required, the means are authorized; wherever\na general power to do a thing is given, every particular power\nnecessary for doing it is included. Had this last method,\ntherefore, been pursued by the convention, every objection now\nurged against their plan would remain in all its plausibility;\nand the real inconveniency would be incurred of not removing a\npretext which may be seized on critical occasions for drawing\ninto question the essential powers of the Union. If it be asked\nwhat is to be the consequence, in case the Congress shall\nmisconstrue this part of the Constitution, and exercise powers\nnot warranted by its true meaning, I answer, the same as if they\nshould misconstrue or enlarge any other power vested in them; as\nif the general power had been reduced to particulars, and any one\nof these were to be violated; the same, in short, as if the State\nlegislatures should violate the irrespective constitutional\nauthorities. In the first instance, the success of the usurpation\nwill depend on the executive and judiciary departments, which are\nto expound and give effect to the legislative acts; and in the\nlast resort a remedy must be obtained from the people who can, by\nthe election of more faithful representatives, annul the acts of\nthe usurpers. The truth is, that this ultimate redress may be\nmore confided in against unconstitutional acts of the federal\nthan of the State legislatures, for this plain reason, that as\nevery such act of the former will be an invasion of the rights of\nthe latter, these will be ever ready to mark the innovation, to\nsound the alarm to the people, and to exert their local influence\nin effecting a change of federal representatives. There being no\nsuch intermediate body between the State legislatures and the\npeople interested in watching the conduct of the former,\nviolations of the State constitutions are more likely to remain\nunnoticed and unredressed. 2. \"This Constitution and the laws\nof the United States which shall be made in pursuance thereof,\nand all treaties made, or which shall be made, under the\nauthority of the United States, shall be the supreme law of the\nland, and the judges in every State shall be bound thereby, any\nthing in the constitution or laws of any State to the contrary\nnotwithstanding. \"The indiscreet zeal of the adversaries to the\nConstitution has betrayed them into an attack on this part of it\nalso, without which it would have been evidently and radically\ndefective. To be fully sensible of this, we need only suppose for\na moment that the supremacy of the State constitutions had been\nleft complete by a saving clause in their favor. In the first\nplace, as these constitutions invest the State legislatures with\nabsolute 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\nthe Confederation, would have been annulled, and the new Congress\nwould have been reduced to the same impotent condition with their\npredecessors. In the next place, as the constitutions of some of\nthe States do not even expressly and fully recognize the existing\npowers of the Confederacy, an express saving of the supremacy of\nthe former would, in such States, have brought into question\nevery power contained in the proposed Constitution. In the third\nplace, as the constitutions of the States differ much from each\nother, it might happen that a treaty or national law, of great\nand equal importance to the States, would interfere with some and\nnot with other constitutions, and would consequently be valid in\nsome of the States, at the same time that it would have no effect\nin others. In fine, the world would have seen, for the first\ntime, a system of government founded on an inversion of the\nfundamental principles of all government; it would have seen the\nauthority of the whole society every where subordinate to the\nauthority of the parts; it would have seen a monster, in which\nthe head was under the direction of the members. 3. \"The\nSenators and Representatives, and the members of the several\nState legislatures, and all executive and judicial officers, both\nof the United States and the several States, shall be bound by\noath or affirmation to support this Constitution. \"It has been\nasked why it was thought necessary, that the State magistracy\nshould be bound to support the federal Constitution, and\nunnecessary that a like oath should be imposed on the officers of\nthe United States, in favor of the State constitutions. Several\nreasons might be assigned for the distinction. I content myself\nwith one, which is obvious and conclusive. The members of the\nfederal government will have no agency in carrying the State\nconstitutions into effect. The members and officers of the State\ngovernments, on the contrary, will have an essential agency in\ngiving effect to the federal Constitution. The election of the\nPresident and Senate will depend, in all cases, on the\nlegislatures of the several States. And the election of the House\nof Representatives will equally depend on the same authority in\nthe first instance; and will, probably, forever be conducted by\nthe officers, and according to the laws, of the States. 4. Among\nthe provisions for giving efficacy to the federal powers might be\nadded those which belong to the executive and judiciary\ndepartments: but as these are reserved for particular examination\nin another place, I pass them over in this. We have now\nreviewed, in detail, all the articles composing the sum or\nquantity of power delegated by the proposed Constitution to the\nfederal government, and are brought to this undeniable\nconclusion, that no part of the power is unnecessary or improper\nfor accomplishing the necessary objects of the Union. The\nquestion, therefore, whether this amount of power shall be\ngranted or not, resolves itself into another question, whether or\nnot a government commensurate to the exigencies of the Union\nshall be established; or, in other words, whether the Union\nitself shall be preserved.\n\nPUBLIUS.\n", "date": "Friday, January 25, 1788", "title": "Restrictions on the Authority of the Several States", "paper_id": 44, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To 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\nto the portion of authority left in the several States. The\nadversaries to the plan of the convention, instead of considering\nin the first place what degree of power was absolutely necessary\nfor the purposes of the federal government, have exhausted\nthemselves in a secondary inquiry into the possible consequences\nof the proposed degree of power to the governments of the\nparticular States. But if the Union, as has been shown, be\nessential to the security of the people of America against\nforeign danger; if it be essential to their security against\ncontentions and wars among the different States; if it be\nessential to guard them against those violent and oppressive\nfactions which embitter the blessings of liberty, and against\nthose military establishments which must gradually poison its\nvery fountain; if, in a word, the Union be essential to the\nhappiness of the people of America, is it not preposterous, to\nurge as an objection to a government, without which the objects\nof the Union cannot be attained, that such a government may\nderogate from the importance of the governments of the individual\nStates? Was, then, the American Revolution effected, was the\nAmerican Confederacy formed, was the precious blood of thousands\nspilt, and the hard-earned substance of millions lavished, not\nthat the people of America should enjoy peace, liberty, and\nsafety, but that the government of the individual States, that\nparticular municipal establishments, might enjoy a certain extent\nof power, and be arrayed with certain dignities and attributes of\nsovereignty? We have heard of the impious doctrine in the Old\nWorld, that the people were made for kings, not kings for the\npeople. Is the same doctrine to be revived in the New, in another\nshape that the solid happiness of the people is to be sacrificed\nto the views of political institutions of a different form? It is\ntoo early for politicians to presume on our forgetting that the\npublic good, the real welfare of the great body of the people, is\nthe supreme object to be pursued; and that no form of government\nwhatever has any other value than as it may be fitted for the\nattainment of this object. Were the plan of the convention\nadverse to the public happiness, my voice would be, Reject the\nplan. Were the Union itself inconsistent with the public\nhappiness, it would be, Abolish the Union. In like manner, as far\nas the sovereignty of the States cannot be reconciled to the\nhappiness of the people, the voice of every good citizen must be,\nLet the former be sacrificed to the latter. How far the sacrifice\nis necessary, has been shown. How far the unsacrificed residue\nwill be endangered, is the question before us. Several important\nconsiderations have been touched in the course of these papers,\nwhich discountenance the supposition that the operation of the\nfederal 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\nthe preponderancy of the last than of the first scale. We have\nseen, in all the examples of ancient and modern confederacies,\nthe strongest tendency continually betraying itself in the\nmembers, to despoil the general government of its authorities,\nwith a very ineffectual capacity in the latter to defend itself\nagainst the encroachments. Although, in most of these examples,\nthe system has been so dissimilar from that under consideration\nas greatly to weaken any inference concerning the latter from the\nfate of the former, yet, as the States will retain, under the\nproposed Constitution, a very extensive portion of active\nsovereignty, the inference ought not to be wholly disregarded. In\nthe Achaean league it is probable that the federal head had a\ndegree and species of power, which gave it a considerable\nlikeness to the government framed by the convention. The Lycian\nConfederacy, as far as its principles and form are transmitted,\nmust have borne a still greater analogy to it. Yet history does\nnot inform us that either of them ever degenerated, or tended to\ndegenerate, into one consolidated government. On the contrary, we\nknow that the ruin of one of them proceeded from the incapacity\nof the federal authority to prevent the dissensions, and finally\nthe disunion, of the subordinate authorities. These cases are the\nmore worthy of our attention, as the external causes by which the\ncomponent parts were pressed together were much more numerous and\npowerful than in our case; and consequently less powerful\nligaments within would be sufficient to bind the members to the\nhead, and to each other. In the feudal system, we have seen a\nsimilar propensity exemplified. Notwithstanding the want of\nproper sympathy in every instance between the local sovereigns\nand the people, and the sympathy in some instances between the\ngeneral sovereign and the latter, it usually happened that the\nlocal sovereigns prevailed in the rivalship for encroachments.\nHad no external dangers enforced internal harmony and\nsubordination, and particularly, had the local sovereigns\npossessed the affections of the people, the great kingdoms in\nEurope would at this time consist of as many independent princes\nas there were formerly feudatory barons. The State government\nwill have the advantage of the Federal government, whether we\ncompare them in respect to the immediate dependence of the one on\nthe other; to the weight of personal influence which each side\nwill possess; to the powers respectively vested in them; to the\npredilection and probable support of the people; to the\ndisposition and faculty of resisting and frustrating the measures\nof each other. The State governments may be regarded as\nconstituent and essential parts of the federal government; whilst\nthe latter is nowise essential to the operation or organization\nof the former. Without the intervention of the State\nlegislatures, the President of the United States cannot be\nelected at all. They must in all cases have a great share in his\nappointment, and will, perhaps, in most cases, of themselves\ndetermine it. The Senate will be elected absolutely and\nexclusively by the State legislatures. Even the House of\nRepresentatives, though drawn immediately from the people, will\nbe chosen very much under the influence of that class of men,\nwhose influence over the people obtains for themselves an\nelection into the State legislatures. Thus, each of the principal\nbranches of the federal government will owe its existence more or\nless to the favor of the State governments, and must consequently\nfeel a dependence, which is much more likely to beget a\ndisposition too obsequious than too overbearing towards them. On\nthe other side, the component parts of the State governments will\nin no instance be indebted for their appointment to the direct\nagency of the federal government, and very little, if at all, to\nthe local influence of its members. The number of individuals\nemployed under the Constitution of the United States will be much\nsmaller than the number employed under the particular States.\nThere will consequently be less of personal influence on the side\nof the former than of the latter. The members of the legislative,\nexecutive, and judiciary departments of thirteen and more States,\nthe justices of peace, officers of militia, ministerial officers\nof justice, with all the county, corporation, and town officers,\nfor three millions and more of people, intermixed, and having\nparticular acquaintance with every class and circle of people,\nmust exceed, beyond all proportion, both in number and influence,\nthose of every description who will be employed in the\nadministration of the federal system. Compare the members of the\nthree great departments of the thirteen States, excluding from\nthe judiciary department the justices of peace, with the members\nof the corresponding departments of the single government of the\nUnion; compare the militia officers of three millions of people\nwith the military and marine officers of any establishment which\nis within the compass of probability, or, I may add, of\npossibility, and in this view alone, we may pronounce the\nadvantage of the States to be decisive. If the federal government\nis to have collectors of revenue, the State governments will have\ntheirs also. And as those of the former will be principally on\nthe seacoast, and not very numerous, whilst those of the latter\nwill be spread over the face of the country, and will be very\nnumerous, the advantage in this view also lies on the same side.\nIt is true, that the Confederacy is to possess, and may exercise,\nthe power of collecting internal as well as external taxes\nthroughout the States; but it is probable that this power will\nnot be resorted to, except for supplemental purposes of revenue;\nthat an option will then be given to the States to supply their\nquotas by previous collections of their own; and that the\neventual collection, under the immediate authority of the Union,\nwill generally be made by the officers, and according to the\nrules, appointed by the several States. Indeed it is extremely\nprobable, that in other instances, particularly in the\norganization of the judicial power, the officers of the States\nwill be clothed with the correspondent authority of the Union.\nShould it happen, however, that separate collectors of internal\nrevenue should be appointed under the federal government, the\ninfluence of the whole number would not bear a comparison with\nthat of the multitude of State officers in the opposite scale.\nWithin every district to which a federal collector would be\nallotted, there would not be less than thirty or forty, or even\nmore, officers of different descriptions, and many of them\npersons of character and weight, whose influence would lie on the\nside of the State. The powers delegated by the proposed\nConstitution to the federal government are few and defined. Those\nwhich are to remain in the State governments are numerous and\nindefinite. The former will be exercised principally on external\nobjects, as war, peace, negotiation, and foreign commerce; with\nwhich last the power of taxation will, for the most part, be\nconnected. The powers reserved to the several States will extend\nto all the objects which, in the ordinary course of affairs,\nconcern the lives, liberties, and properties of the people, and\nthe internal order, improvement, and prosperity of the State. The\noperations of the federal government will be most extensive and\nimportant in times of war and danger; those of the State\ngovernments, in times of peace and security. As the former\nperiods will probably bear a small proportion to the latter, the\nState governments will here enjoy another advantage over the\nfederal government. The more adequate, indeed, the federal powers\nmay be rendered to the national defense, the less frequent will\nbe those scenes of danger which might favor their ascendancy over\nthe governments of the particular States. If the new Constitution\nbe examined with accuracy and candor, it will be found that the\nchange which it proposes consists much less in the addition of\nNEW POWERS to the Union, than in the invigoration of its ORIGINAL\nPOWERS. The regulation of commerce, it is true, is a new power;\nbut that seems to be an addition which few oppose, and from which\nno apprehensions are entertained. The powers relating to war and\npeace, armies and fleets, treaties and finance, with the other\nmore considerable powers, are all vested in the existing Congress\nby the articles of Confederation. The proposed change does not\nenlarge these powers; it only substitutes a more effectual mode\nof administering them. The change relating to taxation may be\nregarded as the most important; and yet the present Congress have\nas complete authority to REQUIRE of the States indefinite\nsupplies of money for the common defense and general welfare, as\nthe future Congress will have to require them of individual\ncitizens; and the latter will be no more bound than the States\nthemselves have been, to pay the quotas respectively taxed on\nthem. 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\npersons, our past experience is very far from countenancing an\nopinion, that the State governments would have lost their\nconstitutional powers, and have gradually undergone an entire\nconsolidation. To maintain that such an event would have ensued,\nwould be to say at once, that the existence of the State\ngovernments is incompatible with any system whatever that\naccomplishes the essential purposes of the Union.\n\nPUBLIUS.\n", "date": null, "title": "The Alleged Danger From the Powers of the Union to the State Governments Considered", "paper_id": 45, "venue": "For the Independent Fournal"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nRESUMING the subject of the last paper, I proceed to inquire\nwhether the federal government or the State governments will have\nthe advantage with regard to the predilection and support of the\npeople. Notwithstanding the different modes in which they are\nappointed, we must consider both of them as substantially\ndependent on the great body of the citizens of the United States.\nI assume this position here as it respects the first, reserving\nthe proofs for another place. The federal and State governments\nare in fact but different agents and trustees of the people,\nconstituted with different powers, and designed for different\npurposes. The adversaries of the Constitution seem to have lost\nsight of the people altogether in their reasonings on this\nsubject; and to have viewed these different establishments, not\nonly as mutual rivals and enemies, but as uncontrolled by any\ncommon superior in their efforts to usurp the authorities of each\nother. These gentlemen must here be reminded of their error. They\nmust be told that the ultimate authority, wherever the derivative\nmay be found, resides in the people alone, and that it will not\ndepend merely on the comparative ambition or address of the\ndifferent governments, whether either, or which of them, will be\nable to enlarge its sphere of jurisdiction at the expense of the\nother. Truth, no less than decency, requires that the event in\nevery case should be supposed to depend on the sentiments and\nsanction of their common constituents. Many considerations,\nbesides those suggested on a former occasion, seem to place it\nbeyond doubt that the first and most natural attachment of the\npeople will be to the governments of their respective States.\nInto the administration of these a greater number of individuals\nwill expect to rise. From the gift of these a greater number of\noffices and emoluments will flow. By the superintending care of\nthese, all the more domestic and personal interests of the people\nwill be regulated and provided for. With the affairs of these,\nthe people will be more familiarly and minutely conversant. And\nwith the members of these, will a greater proportion of the\npeople have the ties of personal acquaintance and friendship, and\nof family and party attachments; on the side of these,\ntherefore, the popular bias may well be expected most strongly to\nincline. Experience speaks the same language in this case. The\nfederal administration, though hitherto very defective in\ncomparison with what may be hoped under a better system, had,\nduring the war, and particularly whilst the independent fund of\npaper emissions was in credit, an activity and importance as\ngreat as it can well have in any future circumstances whatever.\nIt was engaged, too, in a course of measures which had for their\nobject the protection of everything that was dear, and the\nacquisition of everything that could be desirable to the people\nat large. It was, nevertheless, invariably found, after the\ntransient enthusiasm for the early Congresses was over, that the\nattention and attachment of the people were turned anew to their\nown particular governments; that the federal council was at no\ntime the idol of popular favor; and that opposition to proposed\nenlargements of its powers and importance was the side usually\ntaken by the men who wished to build their political consequence\non the prepossessions of their fellow-citizens. If, therefore,\nas has been elsewhere remarked, the people should in future\nbecome more partial to the federal than to the State governments,\nthe change can only result from such manifest and irresistible\nproofs of a better administration, as will overcome all their\nantecedent propensities. And in that case, the people ought not\nsurely to be precluded from giving most of their confidence where\nthey may discover it to be most due; but even in that case the\nState governments could have little to apprehend, because it is\nonly within a certain sphere that the federal power can, in the\nnature of things, be advantageously administered. The remaining\npoints on which I propose to compare the federal and State\ngovernments, are the disposition and the faculty they may\nrespectively possess, to resist and frustrate the measures of\neach other. It has been already proved that the members of the\nfederal will be more dependent on the members of the State\ngovernments, than the latter will be on the former. It has\nappeared also, that the prepossessions of the people, on whom\nboth will depend, will be more on the side of the State\ngovernments, than of the federal government. So far as the\ndisposition of each towards the other may be influenced by these\ncauses, the State governments must clearly have the advantage.\nBut in a distinct and very important point of view, the advantage\nwill lie on the same side. The prepossessions, which the members\nthemselves will carry into the federal government, will generally\nbe favorable to the States; whilst it will rarely happen, that\nthe members of the State governments will carry into the public\ncouncils a bias in favor of the general government. A local\nspirit will infallibly prevail much more in the members of\nCongress, than a national spirit will prevail in the legislatures\nof the particular States. Every one knows that a great proportion\nof the errors committed by the State legislatures proceeds from\nthe disposition of the members to sacrifice the comprehensive and\npermanent interest of the State, to the particular and separate\nviews of the counties or districts in which they reside. And if\nthey do not sufficiently enlarge their policy to embrace the\ncollective welfare of their particular State, how can it be\nimagined that they will make the aggregate prosperity of the\nUnion, and the dignity and respectability of its government, the\nobjects of their affections and consultations? For the same\nreason that the members of the State legislatures will be\nunlikely to attach themselves sufficiently to national objects,\nthe members of the federal legislature will be likely to attach\nthemselves too much to local objects. The States will be to the\nlatter what counties and towns are to the former. Measures will\ntoo often be decided according to their probable effect, not on\nthe national prosperity and happiness, but on the prejudices,\ninterests, and pursuits of the governments and people of the\nindividual States. What is the spirit that has in general\ncharacterized the proceedings of Congress? A perusal of their\njournals, as well as the candid acknowledgments of such as have\nhad a seat in that assembly, will inform us, that the members\nhave but too frequently displayed the character, rather of\npartisans of their respective States, than of impartial guardians\nof a common interest; that where on one occasion improper\nsacrifices have been made of local considerations, to the\naggrandizement of the federal government, the great interests of\nthe nation have suffered on a hundred, from an undue attention to\nthe local prejudices, interests, and views of the particular\nStates. I mean not by these reflections to insinuate, that the\nnew federal government will not embrace a more enlarged plan of\npolicy than the existing government may have pursued; much less,\nthat its views will be as confined as those of the State\nlegislatures; but only that it will partake sufficiently of the\nspirit of both, to be disinclined to invade the rights of the\nindividual States, or the preorgatives of their governments. The\nmotives on the part of the State governments, to augment their\nprerogatives by defalcations from the federal government, will be\noverruled by no reciprocal predispositions in the members. Were\nit admitted, however, that the Federal government may feel an\nequal disposition with the State governments to extend its power\nbeyond the due limits, the latter would still have the advantage\nin the means of defeating such encroachments. If an act of a\nparticular State, though unfriendly to the national government,\nbe generally popular in that State and should not too grossly\nviolate the oaths of the State officers, it is executed\nimmediately and, of course, by means on the spot and depending on\nthe State alone. The opposition of the federal government, or the\ninterposition of federal officers, would but inflame the zeal of\nall parties on the side of the State, and the evil could not be\nprevented or repaired, if at all, without the employment of means\nwhich must always be resorted to with reluctance and difficulty.\nOn the other hand, should an unwarrantable measure of the federal\ngovernment be unpopular in particular States, which would seldom\nfail to be the case, or even a warrantable measure be so, which\nmay sometimes be the case, the means of opposition to it are\npowerful and at hand. The disquietude of the people; their\nrepugnance and, perhaps, refusal to co-operate with the officers\nof 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\nState, difficulties not to be despised; would form, in a large\nState, very serious impediments; and where the sentiments of\nseveral adjoining States happened to be in unison, would present\nobstructions which the federal government would hardly be willing\nto encounter. But ambitious encroachments of the federal\ngovernment, on the authority of the State governments, would not\nexcite the opposition of a single State, or of a few States\nonly. They would be signals of general alarm. Every government\nwould espouse the common cause. A correspondence would be\nopened. Plans of resistance would be concerted. One spirit would\nanimate and conduct the whole. The same combinations, in short,\nwould result from an apprehension of the federal, as was produced\nby the dread of a foreign, yoke; and unless the projected\ninnovations should be voluntarily renounced, the same appeal to\na trial of force would be made in the one case as was made in the\nother. But what degree of madness could ever drive the federal\ngovernment to such an extremity. In the contest with Great\nBritain, one part of the empire was employed against the other.\nThe more numerous part invaded the rights of the less numerous\npart. The attempt was unjust and unwise; but it was not in\nspeculation absolutely chimerical. But what would be the contest\nin the case we are supposing? Who would be the parties? A few\nrepresentatives of the people would be opposed to the people\nthemselves; or rather one set of representatives would be\ncontending against thirteen sets of representatives, with the\nwhole body of their common constituents on the side of the\nlatter. The only refuge left for those who prophesy the downfall\nof the State governments is the visionary supposition that the\nfederal government may previously accumulate a military force for\nthe projects of ambition. The reasonings contained in these\npapers must have been employed to little purpose indeed, if it\ncould be necessary now to disprove the reality of this danger.\nThat the people and the States should, for a sufficient period of\ntime, elect an uninterrupted succession of men ready to betray\nboth; that the traitors should, throughout this period,\nuniformly and systematically pursue some fixed plan for the\nextension of the military establishment; that the governments\nand the people of the States should silently and patiently behold\nthe gathering storm, and continue to supply the materials, until\nit should be prepared to burst on their own heads, must appear to\nevery one more like the incoherent dreams of a delirious\njealousy, or the misjudged exaggerations of a counterfeit zeal,\nthan like the sober apprehensions of genuine patriotism.\nExtravagant as the supposition is, let it however be made. Let a\nregular army, fully equal to the resources of the country, be\nformed; and let it be entirely at the devotion of the federal\ngovernment; still it would not be going too far to say, that the\nState governments, with the people on their side, would be able\nto repel the danger. The highest number to which, according to\nthe best computation, a standing army can be carried in any\ncountry, does not exceed one hundredth part of the whole number\nof souls; or one twenty-fifth part of the number able to bear\narms. This proportion would not yield, in the United States, an\narmy of more than twenty-five or thirty thousand men. To these\nwould be opposed a militia amounting to near half a million of\ncitizens with arms in their hands, officered by men chosen from\namong themselves, fighting for their common liberties, and united\nand conducted by governments possessing their affections and\nconfidence. It may well be doubted, whether a militia thus\ncircumstanced could ever be conquered by such a proportion of\nregular troops. Those who are best acquainted with the last\nsuccessful resistance of this country against the British arms,\nwill be most inclined to deny the possibility of it. Besides the\nadvantage of being armed, which the Americans possess over the\npeople of almost every other nation, the existence of\nsubordinate governments, to which the people are attached, and by\nwhich the militia officers are appointed, forms a barrier against\nthe enterprises of ambition, more insurmountable than any which a\nsimple government of any form can admit of. Notwithstanding the\nmilitary establishments in the several kingdoms of Europe, which\nare carried as far as the public resources will bear, the\ngovernments are afraid to trust the people with arms. And it is\nnot certain, that with this aid alone they would not be able to\nshake off their yokes. But were the people to possess the\nadditional advantages of local governments chosen by themselves,\nwho could collect the national will and direct the national\nforce, and of officers appointed out of the militia, by these\ngovernments, and attached both to them and to the militia, it may\nbe affirmed with the greatest assurance, that the throne of every\ntyranny in Europe would be speedily overturned in spite of the\nlegions which surround it. Let us not insult the free and gallant\ncitizens of America with the suspicion, that they would be less\nable to defend the rights of which they would be in actual\npossession, than the debased subjects of arbitrary power would be\nto rescue theirs from the hands of their oppressors. Let us\nrather no longer insult them with the supposition that they can\never reduce themselves to the necessity of making the experiment,\nby a blind and tame submission to the long train of insidious\nmeasures which must precede and produce it. The argument under\nthe present head may be put into a very concise form, which\nappears altogether conclusive. Either the mode in which the\nfederal government is to be constructed will render it\nsufficiently dependent on the people, or it will not. On the\nfirst supposition, it will be restrained by that dependence from\nforming schemes obnoxious to their constituents. On the other\nsupposition, it will not possess the confidence of the people,\nand its schemes of usurpation will be easily defeated by the\nState governments, who will be supported by the people. On\nsumming up the considerations stated in this and the last paper,\nthey seem to amount to the most convincing evidence, that the\npowers proposed to be lodged in the federal government are as\nlittle formidable to those reserved to the individual States, as\nthey are indispensably necessary to accomplish the purposes of\nthe Union; and that all those alarms which have been sounded, of\na meditated and consequential annihilation of the State\ngovernments, must, on the most favorable interpretation, be\nascribed to the chimerical fears of the authors of them.\n\nPUBLIUS.\n", "date": "Tuesday, January 29, 1788", "title": "The Influence of the State and Federal Governments Compared", "paper_id": 46, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To 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\nthe particular structure of this government, and the distribution\nof this mass of power among its constituent parts. One of the\nprincipal 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\nof the federal government, no regard, it is said, seems to have\nbeen paid to this essential precaution in favor of liberty. The\nseveral departments of power are distributed and blended in such\na manner as at once to destroy all symmetry and beauty of form,\nand to expose some of the essential parts of the edifice to the\ndanger of being crushed by the disproportionate weight of other\nparts. No political truth is certainly of greater intrinsic\nvalue, or is stamped with the authority of more enlightened\npatrons of liberty, than that on which the objection is founded.\nThe accumulation of all powers, legislative, executive, and\njudiciary, in the same hands, whether of one, a few, or many, and\nwhether hereditary, selfappointed, or elective, may justly be\npronounced the very definition of tyranny. Were the federal\nConstitution, therefore, really chargeable with the accumulation\nof power, or with a mixture of powers, having a dangerous\ntendency to such an accumulation, no further arguments would be\nnecessary to inspire a universal reprobation of the system. I\npersuade myself, however, that it will be made apparent to every\none, that the charge cannot be supported, and that the maxim on\nwhich it relies has been totally misconceived and misapplied. In\norder to form correct ideas on this important subject, it will be\nproper to investigate the sense in which the preservation of\nliberty requires that the three great departments of power should\nbe separate and distinct. The oracle who is always consulted and\ncited on this subject is the celebrated Montesquieu. If he be not\nthe author of this invaluable precept in the science of politics,\nhe has the merit at least of displaying and recommending it most\neffectually to the attention of mankind. Let us endeavor, in the\nfirst place, to ascertain his meaning on this point. The British\nConstitution was to Montesquieu what Homer has been to the\ndidactic writers on epic poetry. As the latter have considered\nthe work of the immortal bard as the perfect model from which the\nprinciples and rules of the epic art were to be drawn, and by\nwhich all similar works were to be judged, so this great\npolitical critic appears to have viewed the Constitution of\nEngland as the standard, or to use his own expression, as the\nmirror of political liberty; and to have delivered, in the form\nof elementary truths, the several characteristic principles of\nthat particular system. That we may be sure, then, not to mistake\nhis meaning in this case, let us recur to the source from which\nthe maxim was drawn.\n                        On the slightest view of the British\nConstitution, we must perceive that the legislative, executive,\nand judiciary departments are by no means totally separate and\ndistinct from each other. The executive magistrate forms an\nintegral part of the legislative authority. He alone has the\nprerogative of making treaties with foreign sovereigns, which,\nwhen made, have, under certain limitations, the force of\nlegislative acts. All the members of the judiciary department are\nappointed by him, can be removed by him on the address of the two\nHouses of Parliament, and form, when he pleases to consult them,\none of his constitutional councils. One branch of the legislative\ndepartment forms also a great constitutional council to the\nexecutive chief, as, on another hand, it is the sole depositary\nof judicial power in cases of impeachment, and is invested with\nthe supreme appellate jurisdiction in all other cases. The\njudges, again, are so far connected with the legislative\ndepartment as often to attend and participate in its\ndeliberations, though not admitted to a legislative vote. From\nthese facts, by which Montesquieu was guided, it may clearly be\ninferred that, in saying \"There can be no liberty where the\nlegislative and executive powers are united in the same person,\nor body of magistrates,\" or, \"if the power of judging be not\nseparated from the legislative and executive powers,\" he did not\nmean that these departments ought to have no PARTIAL AGENCY in,\nor no CONTROL over, the acts of each other. His meaning, as his\nown words import, and still more conclusively as illustrated by\nthe example in his eye, can amount to no more than this, that\nwhere the WHOLE power of one department is exercised by the same\nhands which possess the WHOLE power of another department, the\nfundamental principles of a free constitution are subverted. This\nwould have been the case in the constitution examined by him, if\nthe king, who is the sole executive magistrate, had possessed\nalso the complete legislative power, or the supreme\nadministration of justice; or if the entire legislative body had\npossessed the supreme judiciary, or the supreme executive\nauthority. This, however, is not among the vices of that\nconstitution. The magistrate in whom the whole executive power\nresides cannot of himself make a law, though he can put a\nnegative on every law; nor administer justice in person, though\nhe has the appointment of those who do administer it. The judges\ncan exercise no executive prerogative, though they are shoots\nfrom the executive stock; nor any legislative function, though\nthey may be advised with by the legislative councils. The entire\nlegislature can perform no judiciary act, though by the joint act\nof two of its branches the judges may be removed from their\noffices, and though one of its branches is possessed of the\njudicial power in the last resort. The entire legislature, again,\ncan exercise no executive prerogative, though one of its branches\nconstitutes the supreme executive magistracy, and another, on the\nimpeachment of a third, can try and condemn all the subordinate\nofficers in the executive department. The reasons on which\nMontesquieu grounds his maxim are a further demonstration of his\nmeaning. \"When the legislative and executive powers are united\nin the same person or body,\" says he, \"there can be no liberty,\nbecause apprehensions may arise lest THE SAME monarch or senate\nshould ENACT tyrannical laws to EXECUTE them in a tyrannical\nmanner. \" Again: \"Were the power of judging joined with the\nlegislative, the life and liberty of the subject would be exposed\nto arbitrary control, for THE JUDGE would then be THE LEGISLATOR.\nWere it joined to the executive power, THE JUDGE might behave\nwith all the violence of AN OPPRESSOR. \" Some of these reasons\nare more fully explained in other passages; but briefly stated as\nthey are here, they sufficiently establish the meaning which we\nhave put on this celebrated maxim of this celebrated author.\n\nIf we look into the constitutions of the several States, we find\nthat, notwithstanding the emphatical and, in some instances, the\nunqualified terms in which this axiom has been laid down, there\nis not a single instance in which the several departments of\npower have been kept absolutely separate and distinct. New\nHampshire, whose constitution was the last formed, seems to have\nbeen fully aware of the impossibility and inexpediency of\navoiding any mixture whatever of these departments, and has\nqualified the doctrine by declaring \"that the legislative,\nexecutive, and judiciary powers ought to be kept as separate\nfrom, and independent of, each other AS THE NATURE OF A FREE\nGOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF\nCONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE\nINDISSOLUBLE BOND OF UNITY AND AMITY. \" Her constitution\naccordingly mixes these departments in several respects. The\nSenate, which is a branch of the legislative department, is also\na judicial tribunal for the trial of impeachments. The\nPresident, who is the head of the executive department, is the\npresiding member also of the Senate; and, besides an equal vote\nin all cases, has a casting vote in case of a tie. The executive\nhead is himself eventually elective every year by the\nlegislative department, and his council is every year chosen by\nand from the members of the same department. Several of the\nofficers of state are also appointed by the legislature. And the\nmembers of the judiciary department are appointed by the\nexecutive department. The constitution of Massachusetts has\nobserved a sufficient though less pointed caution, in expressing\nthis fundamental article of liberty. It declares \"that the\nlegislative department shall never exercise the executive and\njudicial powers, or either of them; the executive shall never\nexercise the legislative and judicial powers, or either of them;\nthe judicial shall never exercise the legislative and executive\npowers, or either of them. \" This declaration corresponds\nprecisely with the doctrine of Montesquieu, as it has been\nexplained, and is not in a single point violated by the plan of\nthe convention. It goes no farther than to prohibit any one of\nthe entire departments from exercising the powers of another\ndepartment. In the very Constitution to which it is prefixed, a\npartial mixture of powers has been admitted. The executive\nmagistrate has a qualified negative on the legislative body, and\nthe Senate, which is a part of the legislature, is a court of\nimpeachment for members both of the executive and judiciary\ndepartments. The members of the judiciary department, again, are\nappointable by the executive department, and removable by the\nsame authority on the address of the two legislative branches.\nLastly, a number of the officers of government are annually\nappointed by the legislative department. As the appointment to\noffices, particularly executive offices, is in its nature an\nexecutive function, the compilers of the Constitution have, in\nthis last point at least, violated the rule established by\nthemselves. I pass over the constitutions of Rhode Island and\nConnecticut, because they were formed prior to the Revolution,\nand even before the principle under examination had become an\nobject of political attention. The constitution of New York\ncontains no declaration on this subject; but appears very\nclearly to have been framed with an eye to the danger of\nimproperly blending the different departments. It gives,\nnevertheless, to the executive magistrate, a partial control over\nthe legislative department; and, what is more, gives a like\ncontrol to the judiciary department; and even blends the\nexecutive and judiciary departments in the exercise of this\ncontrol. In its council of appointment members of the\nlegislative are associated with the executive authority, in the\nappointment of officers, both executive and judiciary. And its\ncourt for the trial of impeachments and correction of errors is\nto consist of one branch of the legislature and the principal\nmembers of the judiciary department. The constitution of New\nJersey has blended the different powers of government more than\nany of the preceding. The governor, who is the executive\nmagistrate, is appointed by the legislature; is chancellor and\nordinary, or surrogate of the State; is a member of the Supreme\nCourt of Appeals, and president, with a casting vote, of one of\nthe legislative branches. The same legislative branch acts again\nas executive council of the governor, and with him constitutes\nthe Court of Appeals. The members of the judiciary department are\nappointed by the legislative department and removable by one\nbranch of it, on the impeachment of the other. According to the\nconstitution of Pennsylvania, the president, who is the head of\nthe executive department, is annually elected by a vote in which\nthe legislative department predominates. In conjunction with an\nexecutive council, he appoints the members of the judiciary\ndepartment, and forms a court of impeachment for trial of all\nofficers, judiciary as well as executive. The judges of the\nSupreme Court and justices of the peace seem also to be removable\nby the legislature; and the executive power of pardoning in\ncertain cases, to be referred to the same department. The members\nof the executive council are made EX-OFFICIO justices of peace\nthroughout the State. In Delaware, the chief executive magistrate\nis annually elected by the legislative department. The speakers\nof the two legislative branches are vice-presidents in the\nexecutive department. The executive chief, with six others,\nappointed, three by each of the legislative branches constitutes\nthe Supreme Court of Appeals; he is joined with the legislative\ndepartment in the appointment of the other judges. Throughout the\nStates, it appears that the members of the legislature may at the\nsame time be justices of the peace; in this State, the members of\none branch of it are EX-OFFICIO justices of the peace; as are\nalso the members of the executive council. The principal officers\nof the executive department are appointed by the legislative; and\none branch of the latter forms a court of impeachments. All\nofficers may be removed on address of the legislature. Maryland\nhas adopted the maxim in the most unqualified terms; declaring\nthat the legislative, executive, and judicial powers of\ngovernment ought to be forever separate and distinct from each\nother. Her constitution, notwithstanding, makes the executive\nmagistrate appointable by the legislative department; and the\nmembers of the judiciary by the executive department. The\nlanguage of Virginia is still more pointed on this subject. Her\nconstitution declares, \"that the legislative, executive, and\njudiciary departments shall be separate and distinct; so that\nneither exercise the powers properly belonging to the other; nor\nshall any person exercise the powers of more than one of them at\nthe same time, except that the justices of county courts shall be\neligible to either House of Assembly. \" Yet we find not only\nthis express exception, with respect to the members of the\ninferior courts, but that the chief magistrate, with his\nexecutive council, are appointable by the legislature; that two\nmembers of the latter are triennially displaced at the pleasure\nof the legislature; and that all the principal offices, both\nexecutive and judiciary, are filled by the same department. The\nexecutive prerogative of pardon, also, is in one case vested in\nthe legislative department. The constitution of North Carolina,\nwhich declares \"that the legislative, executive, and supreme\njudicial powers of government ought to be forever separate and\ndistinct from each other,\" refers, at the same time, to the\nlegislative department, the appointment not only of the executive\nchief, but all the principal officers within both that and the\njudiciary department. In South Carolina, the constitution makes\nthe executive magistracy eligible by the legislative department.\nIt gives to the latter, also, the appointment of the members of\nthe judiciary department, including even justices of the peace\nand sheriffs; and the appointment of officers in the executive\ndepartment, down to captains in the army and navy of the State.\nIn the constitution of Georgia, where it is declared \"that the\nlegislative, executive, and judiciary departments shall be\nseparate and distinct, so that neither exercise the powers\nproperly belonging to the other,\" we find that the executive\ndepartment is to be filled by appointments of the legislature;\nand the executive prerogative of pardon to be finally exercised\nby the same authority. Even justices of the peace are to be\nappointed by the legislature. In citing these cases, in which\nthe legislative, executive, and judiciary departments have not\nbeen kept totally separate and distinct, I wish not to be\nregarded as an advocate for the particular organizations of the\nseveral State governments. I am fully aware that among the many\nexcellent principles which they exemplify, they carry strong\nmarks of the haste, and still stronger of the inexperience, under\nwhich they were framed. It is but too obvious that in some\ninstances the fundamental principle under consideration has been\nviolated by too great a mixture, and even an actual\nconsolidation, of the different powers; and that in no instance\nhas a competent provision been made for maintaining in practice\nthe separation delineated on paper. What I have wished to evince\nis, that the charge brought against the proposed Constitution, of\nviolating the sacred maxim of free government, is warranted\nneither by the real meaning annexed to that maxim by its author,\nnor by the sense in which it has hitherto been understood in\nAmerica. This interesting subject will be resumed in the ensuing\npaper.\n\nPUBLIUS.\n", "date": "Friday, February 1, 1788", "title": "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts", "paper_id": 47, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To 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\njudiciary departments should be wholly unconnected with each\nother. I shall undertake, in the next place, to show that unless\nthese departments be so far connected and blended as to give to\neach a constitutional control over the others, the degree of\nseparation which the maxim requires, as essential to a free\ngovernment, can never in practice be duly maintained. It is\nagreed on all sides, that the powers properly belonging to one of\nthe departments ought not to be directly and completely\nadministered by either of the other departments. It is equally\nevident, that none of them ought to possess, directly or\nindirectly, an overruling influence over the others, in the\nadministration of their respective powers. It will not be denied,\nthat power is of an encroaching nature, and that it ought to be\neffectually restrained from passing the limits assigned to it.\nAfter discriminating, therefore, in theory, the several classes\nof power, as they may in their nature be legislative, executive,\nor judiciary, the next and most difficult task is to provide some\npractical security for each, against the invasion of the others.\nWhat this security ought to be, is the great problem to be\nsolved. Will it be sufficient to mark, with precision, the\nboundaries of these departments, in the constitution of the\ngovernment, and to trust to these parchment barriers against the\nencroaching spirit of power? This is the security which appears\nto have been principally relied on by the compilers of most of\nthe American constitutions. But experience assures us, that the\nefficacy of the provision has been greatly overrated; and that\nsome more adequate defense is indispensably necessary for the\nmore feeble, against the more powerful, members of the\ngovernment. The legislative department is everywhere extending\nthe sphere of its activity, and drawing all power into its\nimpetuous vortex. The founders of our republics have so much\nmerit for the wisdom which they have displayed, that no task can\nbe less pleasing than that of pointing out the errors into which\nthey have fallen. A respect for truth, however, obliges us to\nremark, that they seem never for a moment to have turned their\neyes from the danger to liberty from the overgrown and\nall-grasping prerogative of an hereditary magistrate, supported\nand fortified by an hereditary branch of the legislative\nauthority. They seem never to have recollected the danger from\nlegislative usurpations, which, by assembling all power in the\nsame hands, must lead to the same tyranny as is threatened by\nexecutive usurpations. In a government where numerous and\nextensive prerogatives are placed in the hands of an hereditary\nmonarch, the executive department is very justly regarded as the\nsource of danger, and watched with all the jealousy which a zeal\nfor liberty ought to inspire. In a democracy, where a multitude\nof people exercise in person the legislative functions, and are\ncontinually exposed, by their incapacity for regular deliberation\nand concerted measures, to the ambitious intrigues of their\nexecutive magistrates, tyranny may well be apprehended, on some\nfavorable emergency, to start up in the same quarter. But in a\nrepresentative republic, where the executive magistracy is\ncarefully limited; both in the extent and the duration of its\npower; and where the legislative power is exercised by an\nassembly, which is inspired, by a supposed influence over the\npeople, with an intrepid confidence in its own strength; which is\nsufficiently numerous to feel all the passions which actuate a\nmultitude, yet not so numerous as to be incapable of pursuing the\nobjects of its passions, by means which reason prescribes; it is\nagainst the enterprising ambition of this department that the\npeople ought to indulge all their jealousy and exhaust all their\nprecautions. The legislative department derives a superiority in\nour governments from other circumstances. Its constitutional\npowers being at once more extensive, and less susceptible of\nprecise limits, it can, with the greater facility, mask, under\ncomplicated and indirect measures, the encroachments which it\nmakes on the co-ordinate departments. It is not unfrequently a\nquestion of real nicety in legislative bodies, whether the\noperation of a particular measure will, or will not, extend\nbeyond the legislative sphere. On the other side, the executive\npower being restrained within a narrower compass, and being more\nsimple in its nature, and the judiciary being described by\nlandmarks still less uncertain, projects of usurpation by either\nof these departments would immediately betray and defeat\nthemselves. Nor is this all: as the legislative department alone\nhas access to the pockets of the people, and has in some\nconstitutions full discretion, and in all a prevailing influence,\nover the pecuniary rewards of those who fill the other\ndepartments, a dependence is thus created in the latter, which\ngives still greater facility to encroachments of the former. I\nhave appealed to our own experience for the truth of what I\nadvance on this subject. Were it necessary to verify this\nexperience by particular proofs, they might be multiplied\nwithout end. I might find a witness in every citizen who has\nshared in, or been attentive to, the course of public\nadministrations. I might collect vouchers in abundance from the\nrecords and archives of every State in the Union. But as a more\nconcise, and at the same time equally satisfactory, evidence, I\nwill refer to the example of two States, attested by two\nunexceptionable authorities. The first example is that of\nVirginia, a State which, as we have seen, has expressly declared\nin its constitution, that the three great departments ought not\nto be intermixed. The authority in support of it is Mr.\nJefferson, who, besides his other advantages for remarking the\noperation of the government, was himself the chief magistrate of\nit. In order to convey fully the ideas with which his experience\nhad impressed him on this subject, it will be necessary to quote\na passage of some length from his very interesting \"Notes on the\nState of Virginia,\" p. 195. \"All the powers of government,\nlegislative, executive, and judiciary, result to the legislative\nbody. The concentrating these in the same hands, is precisely the\ndefinition of despotic government. It will be no alleviation,\nthat these powers will be exercised by a plurality of hands, and\nnot by a single one. One hundred and seventy-three despots would\nsurely be as oppressive as one. Let those who doubt it, turn\ntheir eyes on the republic of Venice. As little will it avail us,\nthat they are chosen by ourselves. An ELECTIVE DESPOTISM was not\nthe government we fought for; but one which should not only be\nfounded on free principles, but in which the powers of government\nshould be so divided and balanced among several bodies of\nmagistracy, as that no one could transcend their legal limits,\nwithout being effectually checked and restrained by the others.\nFor this reason, that convention which passed the ordinance of\ngovernment, laid its foundation on this basis, that the\nlegislative, executive, and judiciary departments should be\nseparate and distinct, so that no person should exercise the\npowers of more than one of them at the same time. BUT NO BARRIER\nWAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the\nexecutive members were left dependent on the legislative for\ntheir subsistence in office, and some of them for their\ncontinuance in it. If, therefore, the legislature assumes\nexecutive and judiciary powers, no opposition is likely to be\nmade; nor, if made, can be effectual; because in that case they\nmay put their proceedings into the form of acts of Assembly,\nwhich will render them obligatory on the other branches. They\nhave accordingly, IN MANY instances, DECIDED RIGHTS which should\nhave been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE\nEXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING\nHABITUAL AND FAMILIAR. \"The other State which I shall take for\nan example is Pennsylvania; and the other authority, the Council\nof Censors, which assembled in the years 1783 and 1784. A part of\nthe duty of this body, as marked out by the constitution, was\n\"to inquire whether the constitution had been preserved\ninviolate in every part; and whether the legislative and\nexecutive branches of government had performed their duty as\nguardians of the people, or assumed to themselves, or exercised,\nother or greater powers than they are entitled to by the\nconstitution. \" In the execution of this trust, the council were\nnecessarily led to a comparison of both the legislative and\nexecutive proceedings, with the constitutional powers of these\ndepartments; and from the facts enumerated, and to the truth of\nmost of which both sides in the council subscribed, it appears\nthat the constitution had been flagrantly violated by the\nlegislature in a variety of important instances. A great number\nof laws had been passed, violating, without any apparent\nnecessity, the rule requiring that all bills of a public nature\nshall be previously printed for the consideration of the people;\nalthough this is one of the precautions chiefly relied on by the\nconstitution against improper acts of legislature. The\nconstitutional trial by jury had been violated, and powers\nassumed which had not been delegated by the constitution.\nExecutive powers had been usurped. The salaries of the judges,\nwhich the constitution expressly requires to be fixed, had been\noccasionally varied; and cases belonging to the judiciary\ndepartment frequently drawn within legislative cognizance and\ndetermination. Those who wish to see the several particulars\nfalling under each of these heads, may consult the journals of\nthe council, which are in print. Some of them, it will be found,\nmay be imputable to peculiar circumstances connected with the\nwar; but the greater part of them may be considered as the\nspontaneous shoots of an ill-constituted government. It appears,\nalso, that the executive department had not been innocent of\nfrequent breaches of the constitution. There are three\nobservations, however, which ought to be made on this head:\nFIRST, a great proportion of the instances were either\nimmediately produced by the necessities of the war, or\nrecommended by Congress or the commander-in-chief; SECONDLY, in\nmost of the other instances, they conformed either to the\ndeclared or the known sentiments of the legislative department;\nTHIRDLY, the executive department of Pennsylvania is\ndistinguished from that of the other States by the number of\nmembers composing it. In this respect, it has as much affinity\nto a legislative assembly as to an executive council. And being\nat once exempt from the restraint of an individual responsibility\nfor the acts of the body, and deriving confidence from mutual\nexample and joint influence, unauthorized measures would, of\ncourse, be more freely hazarded, than where the executive\ndepartment is administered by a single hand, or by a few hands.\nThe conclusion which I am warranted in drawing from these\nobservations is, that a mere demarcation on parchment of the\nconstitutional limits of the several departments, is not a\nsufficient guard against those encroachments which lead to a\ntyrannical concentration of all the powers of government in the\nsame hands.\n\nPUBLIUS.\n", "date": "Friday, February 1, 1788", "title": "These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other", "paper_id": 48, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nTHE author of the \"Notes on the State of Virginia,\" quoted in\nthe last paper, has subjoined to that valuable work the draught\nof a constitution, which had been prepared in order to be laid\nbefore a convention, expected to be called in 1783, by the\nlegislature, for the establishment of a constitution for that\ncommonwealth. The plan, like every thing from the same pen, marks\na turn of thinking, original, comprehensive, and accurate; and is\nthe more worthy of attention as it equally displays a fervent\nattachment to republican government and an enlightened view of\nthe dangerous propensities against which it ought to be guarded.\nOne of the precautions which he proposes, and on which he appears\nultimately to rely as a palladium to the weaker departments of\npower against the invasions of the stronger, is perhaps\naltogether his own, and as it immediately relates to the subject\nof our present inquiry, ought not to be overlooked. His\nproposition is, \"that whenever any two of the three branches of\ngovernment shall concur in opinion, each by the voices of two\nthirds of their whole number, that a convention is necessary for\naltering the constitution, or CORRECTING BREACHES OF IT, a\nconvention shall be called for the purpose. \"As the people are\nthe only legitimate fountain of power, and it is from them that\nthe constitutional charter, under which the several branches of\ngovernment hold their power, is derived, it seems strictly\nconsonant to the republican theory, to recur to the same original\nauthority, not only whenever it may be necessary to enlarge,\ndiminish, or new-model the powers of the government, but also\nwhenever any one of the departments may commit encroachments on\nthe chartered authorities of the others. The several departments\nbeing perfectly co-ordinate by the terms of their common\ncommission, none of them, it is evident, can pretend to an\nexclusive or superior right of settling the boundaries between\ntheir respective powers; and how are the encroachments of the\nstronger to be prevented, or the wrongs of the weaker to be\nredressed, without an appeal to the people themselves, who, as\nthe grantors of the commissions, can alone declare its true\nmeaning, and enforce its observance? There is certainly great\nforce in this reasoning, and it must be allowed to prove that a\nconstitutional road to the decision of the people ought to be\nmarked out and kept open, for certain great and extraordinary\noccasions. But there appear to be insuperable objections against\nthe proposed recurrence to the people, as a provision in all\ncases for keeping the several departments of power within their\nconstitutional limits. In the first place, the provision does not\nreach the case of a combination of two of the departments against\nthe third. If the legislative authority, which possesses so many\nmeans of operating on the motives of the other departments,\nshould be able to gain to its interest either of the others, or\neven one third of its members, the remaining department could\nderive no advantage from its remedial provision. I do not dwell,\nhowever, on this objection, because it may be thought to be\nrather against the modification of the principle, than against\nthe principle itself. In the next place, it may be considered as\nan objection inherent in the principle, that as every appeal to\nthe people would carry an implication of some defect in the\ngovernment, frequent appeals would, in a great measure, deprive\nthe government of that veneration which time bestows on every\nthing, and without which perhaps the wisest and freest\ngovernments would not possess the requisite stability. If it be\ntrue that all governments rest on opinion, it is no less true\nthat the strength of opinion in each individual, and its\npractical influence on his conduct, depend much on the number\nwhich he supposes to have entertained the same opinion. The\nreason of man, like man himself, is timid and cautious when left\nalone, and acquires firmness and confidence in proportion to the\nnumber with which it is associated. When the examples which\nfortify opinion are ANCIENT as well as NUMEROUS, they are known\nto have a double effect. In a nation of philosophers, this\nconsideration ought to be disregarded. A reverence for the laws\nwould be sufficiently inculcated by the voice of an enlightened\nreason. But a nation of philosophers is as little to be expected\nas the philosophical race of kings wished for by Plato. And in\nevery other nation, the most rational government will not find it\na superfluous advantage to have the prejudices of the community\non its side. The danger of disturbing the public tranquillity by\ninteresting too strongly the public passions, is a still more\nserious objection against a frequent reference of constitutional\nquestions to the decision of the whole society. Notwithstanding\nthe success which has attended the revisions of our established\nforms of government, and which does so much honor to the virtue\nand intelligence of the people of America, it must be confessed\nthat the experiments are of too ticklish a nature to be\nunnecessarily multiplied. We are to recollect that all the\nexisting constitutions were formed in the midst of a danger which\nrepressed the passions most unfriendly to order and concord; of\nan enthusiastic confidence of the people in their patriotic\nleaders, which stifled the ordinary diversity of opinions on\ngreat national questions; of a universal ardor for new and\nopposite forms, produced by a universal resentment and\nindignation against the ancient government; and whilst no spirit\nof party connected with the changes to be made, or the abuses to\nbe reformed, could mingle its leaven in the operation. The future\nsituations in which we must expect to be usually placed, do not\npresent any equivalent security against the danger which is\napprehended. But the greatest objection of all is, that the\ndecisions which would probably result from such appeals would not\nanswer the purpose of maintaining the constitutional equilibrium\nof the government. We have seen that the tendency of republican\ngovernments is to an aggrandizement of the legislative at the\nexpense of the other departments. The appeals to the people,\ntherefore, would usually be made by the executive and judiciary\ndepartments. But whether made by one side or the other, would\neach side enjoy equal advantages on the trial? Let us view their\ndifferent situations. The members of the executive and judiciary\ndepartments are few in number, and can be personally known to a\nsmall part only of the people. The latter, by the mode of their\nappointment, as well as by the nature and permanency of it, are\ntoo far removed from the people to share much in their\nprepossessions. The former are generally the objects of jealousy,\nand their administration is always liable to be discolored and\nrendered unpopular. The members of the legislative department, on\nthe other hand, are numberous. They are distributed and dwell\namong the people at large. Their connections of blood, of\nfriendship, and of acquaintance embrace a great proportion of the\nmost influential part of the society. The nature of their public\ntrust implies a personal influence among the people, and that\nthey are more immediately the confidential guardians of the\nrights and liberties of the people. With these advantages, it can\nhardly be supposed that the adverse party would have an equal\nchance for a favorable issue. But the legislative party would not\nonly be able to plead their cause most successfully with the\npeople. They would probably be constituted themselves the judges.\nThe same influence which had gained them an election into the\nlegislature, would gain them a seat in the convention. If this\nshould not be the case with all, it would probably be the case\nwith many, and pretty certainly with those leading characters, on\nwhom every thing depends in such bodies. The convention, in\nshort, would be composed chiefly of men who had been, who\nactually were, or who expected to be, members of the department\nwhose conduct was arraigned. They would consequently be parties\nto the very question to be decided by them. It might, however,\nsometimes happen, that appeals would be made under circumstances\nless adverse to the executive and judiciary departments. The\nusurpations of the legislature might be so flagrant and so\nsudden, as to admit of no specious coloring. A strong party\namong themselves might take side with the other branches. The\nexecutive power might be in the hands of a peculiar favorite of\nthe people. In such a posture of things, the public decision\nmight be less swayed by prepossessions in favor of the\nlegislative party. But still it could never be expected to turn\non 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\npersons of distinguished character and extensive influence in the\ncommunity. It would be pronounced by the very men who had been\nagents in, or opponents of, the measures to which the decision\nwould relate. The PASSIONS, therefore, not the REASON, of the\npublic would sit in judgment. But it is the reason, alone, of the\npublic, that ought to control and regulate the government. The\npassions ought to be controlled and regulated by the government.\nWe found in the last paper, that mere declarations in the written\nconstitution are not sufficient to restrain the several\ndepartments within their legal rights. It appears in this, that\noccasional appeals to the people would be neither a proper nor an\neffectual provision for that purpose. How far the provisions of a\ndifferent nature contained in the plan above quoted might be\nadequate, I do not examine. Some of them are unquestionably\nfounded on sound political principles, and all of them are framed\nwith singular ingenuity and precision.\n\nPUBLIUS.\n", "date": "Tuesday, February 5, 1788", "title": "Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention", "paper_id": 49, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nIT MAY be contended, perhaps, that instead of OCCASIONAL appeals\nto the people, which are liable to the objections urged against\nthem, PERIODICAL appeals are the proper and adequate means of\nPREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It\nwill be attended to, that in the examination of these expedients,\nI confine myself to their aptitude for ENFORCING the\nConstitution, by keeping the several departments of power within\ntheir due bounds, without particularly considering them as\nprovisions for ALTERING the Constitution itself. In the first\nview, appeals to the people at fixed periods appear to be nearly\nas ineligible as appeals on particular occasions as they emerge.\nIf the periods be separated by short intervals, the measures to\nbe reviewed and rectified will have been of recent date, and will\nbe connected with all the circumstances which tend to vitiate and\npervert the result of occasional revisions. If the periods be\ndistant from each other, the same remark will be applicable to\nall recent measures; and in proportion as the remoteness of the\nothers may favor a dispassionate review of them, this advantage\nis inseparable from inconveniences which seem to counterbalance\nit. In the first place, a distant prospect of public censure\nwould be a very feeble restraint on power from those excesses to\nwhich it might be urged by the force of present motives. Is it to\nbe imagined that a legislative assembly, consisting of a hundred\nor two hundred members, eagerly bent on some favorite object, and\nbreaking through the restraints of the Constitution in pursuit of\nit, would be arrested in their career, by considerations drawn\nfrom a censorial revision of their conduct at the future distance\nof ten, fifteen, or twenty years? In the next place, the abuses\nwould often have completed their mischievous effects before the\nremedial provision would be applied. And in the last place, where\nthis might not be the case, they would be of long standing, would\nhave taken deep root, and would not easily be extirpated. The\nscheme of revising the constitution, in order to correct recent\nbreaches of it, as well as for other purposes, has been actually\ntried in one of the States. One of the objects of the Council of\nCensors which met in Pennsylvania in 1783 and 1784, was, as we\nhave seen, to inquire, \"whether the constitution had been\nviolated, and whether the legislative and executive departments\nhad encroached upon each other. \" This important and novel\nexperiment in politics merits, in several points of view, very\nparticular attention. In some of them it may, perhaps, as a\nsingle experiment, made under circumstances somewhat peculiar, be\nthought to be not absolutely conclusive. But as applied to the\ncase under consideration, it involves some facts, which I venture\nto remark, as a complete and satisfactory illustration of the\nreasoning which I have employed. First. It appears, from the\nnames of the gentlemen who composed the council, that some, at\nleast, of its most active members had also been active and\nleading characters in the parties which pre-existed in the State.\nSecondly. It appears that the same active and leading members of\nthe council had been active and influential members of the\nlegislative and executive branches, within the period to be\nreviewed; and even patrons or opponents of the very measures to\nbe thus brought to the test of the constitution. Two of the\nmembers had been vice-presidents of the State, and several other\nmembers of the executive council, within the seven preceding\nyears. One of them had been speaker, and a number of others\ndistinguished members, of the legislative assembly within the\nsame period. Thirdly. Every page of their proceedings witnesses\nthe effect of all these circumstances on the temper of their\ndeliberations. Throughout the continuance of the council, it was\nsplit into two fixed and violent parties. The fact is\nacknowledged and lamented by themselves. Had this not been the\ncase, the face of their proceedings exhibits a proof equally\nsatisfactory. In all questions, however unimportant in\nthemselves, or unconnected with each other, the same names stand\ninvariably contrasted on the opposite columns. Every unbiased\nobserver may infer, without danger of mistake, and at the same\ntime without meaning to reflect on either party, or any\nindividuals of either party, that, unfortunately, PASSION, not\nREASON, must have presided over their decisions. When men\nexercise their reason coolly and freely on a variety of distinct\nquestions, they inevitably fall into different opinions on some\nof them. When they are governed by a common passion, their\nopinions, if they are so to be called, will be the same.\nFourthly. It is at least problematical, whether the decisions of\nthis body do not, in several instances, misconstrue the limits\nprescribed for the legislative and executive departments, instead\nof reducing and limiting them within their constitutional places.\nFifthly. I have never understood that the decisions of the\ncouncil on constitutional questions, whether rightly or\nerroneously formed, have had any effect in varying the practice\nfounded on legislative constructions. It even appears, if I\nmistake not, that in one instance the contemporary legislature\ndenied the constructions of the council, and actually prevailed\nin the contest. This censorial body, therefore, proves at the\nsame time, by its researches, the existence of the disease, and\nby its example, the inefficacy of the remedy. This conclusion\ncannot be invalidated by alleging that the State in which the\nexperiment was made was at that crisis, and had been for a long\ntime before, violently heated and distracted by the rage of\nparty. Is it to be presumed, that at any future septennial epoch\nthe same State will be free from parties? Is it to be presumed\nthat any other State, at the same or any other given period, will\nbe exempt from them? Such an event ought to be neither presumed\nnor desired; because an extinction of parties necessarily implies\neither a universal alarm for the public safety, or an absolute\nextinction of liberty. Were the precaution taken of excluding\nfrom the assemblies elected by the people, to revise the\npreceding administration of the government, all persons who\nshould have been concerned with the government within the given\nperiod, the difficulties would not be obviated. The important\ntask would probably devolve on men, who, with inferior\ncapacities, would in other respects be little better qualified.\nAlthough they might not have been personally concerned in the\nadministration, and therefore not immediately agents in the\nmeasures to be examined, they would probably have been involved\nin the parties connected with these measures, and have been\nelected under their auspices.\n\nPUBLIUS.\n", "date": "Tuesday, February 5, 1788", "title": "Periodical Appeals to the People Considered", "paper_id": 50, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nTO WHAT expedient, then, shall we finally resort, for maintaining\nin practice the necessary partition of power among the several\ndepartments, as laid down in the Constitution? The only answer\nthat can be given is, that as all these exterior provisions are\nfound to be inadequate, the defect must be supplied, by so\ncontriving the interior structure of the government as that its\nseveral constituent parts may, by their mutual relations, be the\nmeans of keeping each other in their proper places. Without\npresuming to undertake a full development of this important idea,\nI will hazard a few general observations, which may perhaps place\nit in a clearer light, and enable us to form a more correct\njudgment of the principles and structure of the government\nplanned by the convention. In order to lay a due foundation for\nthat separate and distinct exercise of the different powers of\ngovernment, which to a certain extent is admitted on all hands to\nbe essential to the preservation of liberty, it is evident that\neach department should have a will of its own; and consequently\nshould be so constituted that the members of each should have as\nlittle agency as possible in the appointment of the members of\nthe others. Were this principle rigorously adhered to, it would\nrequire that all the appointments for the supreme executive,\nlegislative, and judiciary magistracies should be drawn from the\nsame fountain of authority, the people, through channels having\nno communication whatever with one another. Perhaps such a plan\nof constructing the several departments would be less difficult\nin practice than it may in contemplation appear. Some\ndifficulties, however, and some additional expense would attend\nthe execution of it. Some deviations, therefore, from the\nprinciple must be admitted. In the constitution of the judiciary\ndepartment in particular, it might be inexpedient to insist\nrigorously on the principle: first, because peculiar\nqualifications being essential in the members, the primary\nconsideration ought to be to select that mode of choice which\nbest secures these qualifications; secondly, because the\npermanent tenure by which the appointments are held in that\ndepartment, must soon destroy all sense of dependence on the\nauthority conferring them. It is equally evident, that the\nmembers of each department should be as little dependent as\npossible on those of the others, for the emoluments annexed to\ntheir offices. Were the executive magistrate, or the judges, not\nindependent of the legislature in this particular, their\nindependence in every other would be merely nominal. But the\ngreat 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\nprovision for defense must in this, as in all other cases, be\nmade commensurate to the danger of attack. Ambition must be made\nto counteract ambition. The interest of the man must be\nconnected with the constitutional rights of the place. It may be\na reflection on human nature, that such devices should be\nnecessary to control the abuses of government. But what is\ngovernment itself, but the greatest of all reflections on human\nnature? If men were angels, no government would be necessary. If\nangels were to govern men, neither external nor internal\ncontrols on government would be necessary. In framing a\ngovernment which is to be administered by men over men, the great\ndifficulty lies in this: you must first enable the government to\ncontrol the governed; and in the next place oblige it to control\nitself. A dependence on the people is, no doubt, the primary\ncontrol on the government; but experience has taught mankind the\nnecessity of auxiliary precautions. This policy of supplying, by\nopposite and rival interests, the defect of better motives, might\nbe traced through the whole system of human affairs, private as\nwell as public. We see it particularly displayed in all the\nsubordinate distributions of power, where the constant aim is to\ndivide and arrange the several offices in such a manner as that\neach may be a check on the other that the private interest of\nevery individual may be a sentinel over the public rights. These\ninventions of prudence cannot be less requisite in the\ndistribution of the supreme powers of the State. But it is not\npossible to give to each department an equal power of\nself-defense. In republican government, the legislative\nauthority necessarily predominates. The remedy for this\ninconveniency is to divide the legislature into different\nbranches; and to render them, by different modes of election and\ndifferent principles of action, as little connected with each\nother as the nature of their common functions and their common\ndependence on the society will admit. It may even be necessary\nto guard against dangerous encroachments by still further\nprecautions. As the weight of the legislative authority requires\nthat it should be thus divided, the weakness of the executive may\nrequire, on the other hand, that it should be fortified. An\nabsolute negative on the legislature appears, at first view, to\nbe the natural defense with which the executive magistrate should\nbe armed. But perhaps it would be neither altogether safe nor\nalone sufficient. On ordinary occasions it might not be exerted\nwith the requisite firmness, and on extraordinary occasions it\nmight be perfidiously abused. May not this defect of an absolute\nnegative be supplied by some qualified connection between this\nweaker department and the weaker branch of the stronger\ndepartment, by which the latter may be led to support the\nconstitutional rights of the former, without being too much\ndetached from the rights of its own department? If the principles\non which these observations are founded be just, as I persuade\nmyself they are, and they be applied as a criterion to the\nseveral State constitutions, and to the federal Constitution it\nwill be found that if the latter does not perfectly correspond\nwith them, the former are infinitely less able to bear such a\ntest. There are, moreover, two considerations particularly\napplicable to the federal system of America, which place that\nsystem in a very interesting point of view. First. In a single\nrepublic, all the power surrendered by the people is submitted to\nthe administration of a single government; and the usurpations\nare guarded against by a division of the government into distinct\nand 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\nsubdivided among distinct and separate departments. Hence a\ndouble security arises to the rights of the people. The different\ngovernments will control each other, at the same time that each\nwill be controlled by itself. Second. It is of great importance\nin a republic not only to guard the society against the\noppression of its rulers, but to guard one part of the society\nagainst the injustice of the other part. Different interests\nnecessarily exist in different classes of citizens. If a\nmajority be united by a common interest, the rights of the\nminority will be insecure. There are but two methods of\nproviding against this evil: the one by creating a will in the\ncommunity independent of the majority that is, of the society\nitself; the other, by comprehending in the society so many\nseparate descriptions of citizens as will render an unjust\ncombination of a majority of the whole very improbable, if not\nimpracticable. The first method prevails in all governments\npossessing an hereditary or self-appointed authority. This, at\nbest, is but a precarious security; because a power independent\nof the society may as well espouse the unjust views of the major,\nas the rightful interests of the minor party, and may possibly be\nturned against both parties. The second method will be\nexemplified in the federal republic of the United States. Whilst\nall authority in it will be derived from and dependent on the\nsociety, the society itself will be broken into so many parts,\ninterests, and classes of citizens, that the rights of\nindividuals, or of the minority, will be in little danger from\ninterested combinations of the majority. In a free government\nthe security for civil rights must be the same as that for\nreligious rights. It consists in the one case in the\nmultiplicity of interests, and in the other in the multiplicity\nof sects. The degree of security in both cases will depend on\nthe number of interests and sects; and this may be presumed to\ndepend on the extent of country and number of people comprehended\nunder the same government. This view of the subject must\nparticularly recommend a proper federal system to all the sincere\nand considerate friends of republican government, since it shows\nthat in exact proportion as the territory of the Union may be\nformed into more circumscribed Confederacies, or States\noppressive combinations of a majority will be facilitated: the\nbest security, under the republican forms, for the rights of\nevery class of citizens, will be diminished: and consequently the\nstability and independence of some member of the government, the\nonly other security, must be proportionately increased. Justice\nis the end of government. It is the end of civil society. It\never has been and ever will be pursued until it be obtained, or\nuntil liberty be lost in the pursuit. In a society under the\nforms of which the stronger faction can readily unite and oppress\nthe weaker, anarchy may as truly be said to reign as in a state\nof nature, where the weaker individual is not secured against the\nviolence of the stronger; and as, in the latter state, even the\nstronger individuals are prompted, by the uncertainty of their\ncondition, to submit to a government which may protect the weak\nas well as themselves; so, in the former state, will the more\npowerful factions or parties be gradually induced, by a like\nmotive, to wish for a government which will protect all parties,\nthe weaker as well as the more powerful. It can be little\ndoubted that if the State of Rhode Island was separated from the\nConfederacy and left to itself, the insecurity of rights under\nthe popular form of government within such narrow limits would be\ndisplayed by such reiterated oppressions of factious majorities\nthat some power altogether independent of the people would soon\nbe called for by the voice of the very factions whose misrule had\nproved the necessity of it. In the extended republic of the\nUnited States, and among the great variety of interests, parties,\nand sects which it embraces, a coalition of a majority of the\nwhole society could seldom take place on any other principles\nthan those of justice and the general good; whilst there being\nthus 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\nformer, by introducing into the government a will not dependent\non the latter, or, in other words, a will independent of the\nsociety itself. It is no less certain than it is important,\nnotwithstanding the contrary opinions which have been\nentertained, that the larger the society, provided it lie within\na practical sphere, the more duly capable it will be of\nself-government. And happily for the REPUBLICAN CAUSE, the\npracticable sphere may be carried to a very great extent, by a\njudicious modification and mixture of the FEDERAL PRINCIPLE.\n\nPUBLIUS.\n", "date": "Friday, February 8, 1788", "title": "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments", "paper_id": 51, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nFROM the more general inquiries pursued in the four last papers,\nI pass on to a more particular examination of the several parts\nof the government. I shall begin with the House of\nRepresentatives. The first view to be taken of this part of the\ngovernment relates to the qualifications of the electors and the\nelected. Those of the former are to be the same with those of the\nelectors of the most numerous branch of the State legislatures.\nThe definition of the right of suffrage is very justly regarded\nas a fundamental article of republican government. It was\nincumbent on the convention, therefore, to define and establish\nthis right in the Constitution. To have left it open for the\noccasional regulation of the Congress, would have been improper\nfor the reason just mentioned. To have submitted it to the\nlegislative discretion of the States, would have been improper\nfor the same reason; and for the additional reason that it would\nhave rendered too dependent on the State governments that branch\nof the federal government which ought to be dependent on the\npeople alone. To have reduced the different qualifications in the\ndifferent States to one uniform rule, would probably have been as\ndissatisfactory to some of the States as it would have been\ndifficult to the convention. The provision made by the convention\nappears, therefore, to be the best that lay within their option.\nIt must be satisfactory to every State, because it is conformable\nto the standard already established, or which may be established,\nby the State itself. It will be safe to the United States,\nbecause, being fixed by the State constitutions, it is not\nalterable by the State governments, and it cannot be feared that\nthe people of the States will alter this part of their\nconstitutions in such a manner as to abridge the rights secured\nto them by the federal Constitution. The qualifications of the\nelected, being less carefully and properly defined by the State\nconstitutions, and being at the same time more susceptible of\nuniformity, have been very properly considered and regulated by\nthe convention. A representative of the United States must be of\nthe age of twenty-five years; must have been seven years a\ncitizen of the United States; must, at the time of his election,\nbe an inhabitant of the State he is to represent; and, during the\ntime of his service, must be in no office under the United\nStates. Under these reasonable limitations, the door of this part\nof the federal government is open to merit of every description,\nwhether native or adoptive, whether young or old, and without\nregard to poverty or wealth, or to any particular profession of\nreligious faith. The term for which the representatives are to be\nelected falls under a second view which may be taken of this\nbranch. In order to decide on the propriety of this article, two\nquestions must be considered: first, whether biennial elections\nwill, in this case, be safe; secondly, whether they be necessary\nor useful. First. As it is essential to liberty that the\ngovernment in general should have a common interest with the\npeople, so it is particularly essential that the branch of it\nunder consideration should have an immediate dependence on, and\nan intimate sympathy with, the people. Frequent elections are\nunquestionably the only policy by which this dependence and\nsympathy can be effectually secured. But what particular degree\nof frequency may be absolutely necessary for the purpose, does\nnot appear to be susceptible of any precise calculation, and must\ndepend on a variety of circumstances with which it may be\nconnected. Let us consult experience, the guide that ought always\nto be followed whenever it can be found. The scheme of\nrepresentation, as a substitute for a meeting of the citizens in\nperson, being at most but very imperfectly known to ancient\npolity, it is in more modern times only that we are to expect\ninstructive examples. And even here, in order to avoid a research\ntoo vague and diffusive, it will be proper to confine ourselves\nto the few examples which are best known, and which bear the\ngreatest analogy to our particular case. The first to which this\ncharacter ought to be applied, is the House of Commons in Great\nBritain. The history of this branch of the English Constitution,\nanterior to the date of Magna Charta, is too obscure to yield\ninstruction. The very existence of it has been made a question\namong political antiquaries. The earliest records of subsequent\ndate prove that parliaments were to SIT only every year; not that\nthey were to be ELECTED every year. And even these annual\nsessions were left so much at the discretion of the monarch,\nthat, under various pretexts, very long and dangerous\nintermissions were often contrived by royal ambition. To remedy\nthis grievance, it was provided by a statute in the reign of\nCharles II. , that the intermissions should not be protracted\nbeyond a period of three years. On the accession of William III.,\nwhen a revolution took place in the government, the subject was\nstill more seriously resumed, and it was declared to be among the\nfundamental rights of the people that parliaments ought to be\nheld FREQUENTLY. By another statute, which passed a few years\nlater in the same reign, the term \"frequently,\" which had\nalluded to the triennial period settled in the time of Charles\nII., is reduced to a precise meaning, it being expressly enacted\nthat a new parliament shall be called within three years after\nthe termination of the former. The last change, from three to\nseven years, is well known to have been introduced pretty early\nin the present century, under on alarm for the Hanoverian\nsuccession. From these facts it appears that the greatest\nfrequency of elections which has been deemed necessary in that\nkingdom, for binding the representatives to their constituents,\ndoes not exceed a triennial return of them. And if we may argue\nfrom the degree of liberty retained even under septennial\nelections, and all the other vicious ingredients in the\nparliamentary 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\ntheir representatives as to satisfy us that biennial elections,\nunder the federal system, cannot possibly be dangerous to the\nrequisite dependence of the House of Representatives on their\nconstituents. Elections in Ireland, till of late, were regulated\nentirely by the discretion of the crown, and were seldom\nrepeated, except on the accession of a new prince, or some other\ncontingent event. The parliament which commenced with George II.\nwas continued throughout his whole reign, a period of about\nthirty-five years. The only dependence of the representatives on\nthe people consisted in the right of the latter to supply\noccasional vacancies by the election of new members, and in the\nchance of some event which might produce a general new election.\nThe ability also of the Irish parliament to maintain the rights\nof their constituents, so far as the disposition might exist, was\nextremely shackled by the control of the crown over the subjects\nof their deliberation. Of late these shackles, if I mistake not,\nhave been broken; and octennial parliaments have besides been\nestablished. What effect may be produced by this partial reform,\nmust be left to further experience. The example of Ireland, from\nthis view of it, can throw but little light on the subject. As\nfar as we can draw any conclusion from it, it must be that if the\npeople of that country have been able under all these\ndisadvantages to retain any liberty whatever, the advantage of\nbiennial elections would secure to them every degree of liberty,\nwhich might depend on a due connection between their\nrepresentatives and themselves. Let us bring our inquiries nearer\nhome. The example of these States, when British colonies, claims\nparticular attention, at the same time that it is so well known\nas to require little to be said on it. The principle of\nrepresentation, in one branch of the legislature at least, was\nestablished in all of them. But the periods of election were\ndifferent. They varied from one to seven years. Have we any\nreason to infer, from the spirit and conduct of the\nrepresentatives of the people, prior to the Revolution, that\nbiennial elections would have been dangerous to the public\nliberties? The spirit which everywhere displayed itself at the\ncommencement of the struggle, and which vanquished the obstacles\nto independence, is the best of proofs that a sufficient portion\nof liberty had been everywhere enjoyed to inspire both a sense of\nits worth and a zeal for its proper enlargement This remark holds\ngood, as well with regard to the then colonies whose elections\nwere least frequent, as to those whose elections were most\nfrequent Virginia was the colony which stood first in resisting\nthe parliamentary usurpations of Great Britain; it was the first\nalso in espousing, by public act, the resolution of independence.\nIn Virginia, nevertheless, if I have not been misinformed,\nelections under the former government were septennial. This\nparticular example is brought into view, not as a proof of any\npeculiar merit, for the priority in those instances was probably\naccidental; 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\nvery substantial proof, that the liberties of the people can be\nin no danger from BIENNIAL elections. The conclusion resulting\nfrom these examples will be not a little strengthened by\nrecollecting three circumstances. The first is, that the federal\nlegislature will possess a part only of that supreme legislative\nauthority which is vested completely in the British Parliament;\nand which, with a few exceptions, was exercised by the colonial\nassemblies and the Irish legislature. It is a received and\nwell-founded maxim, that where no other circumstances affect the\ncase, the greater the power is, the shorter ought to be its\nduration; and, conversely, the smaller the power, the more safely\nmay its duration be protracted. In the second place, it has, on\nanother occasion, been shown that the federal legislature will\nnot only be restrained by its dependence on its people, as other\nlegislative bodies are, but that it will be, moreover, watched\nand controlled by the several collateral legislatures, which\nother legislative bodies are not. And in the third place, no\ncomparison can be made between the means that will be possessed\nby the more permanent branches of the federal government for\nseducing, if they should be disposed to seduce, the House of\nRepresentatives from their duty to the people, and the means of\ninfluence over the popular branch possessed by the other branches\nof the government above cited. With less power, therefore, to\nabuse, the federal representatives can be less tempted on one\nside, and will be doubly watched on the other.\n\nPUBLIUS.\n", "date": "Friday, February 8, 1788", "title": "The House of Representatives", "paper_id": 52, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nI SHALL here, perhaps, be reminded of a current observation,\n\"that where annual elections end, tyranny begins. \" If it be\ntrue, as has often been remarked, that sayings which become\nproverbial are generally founded in reason, it is not less true,\nthat when once established, they are often applied to cases to\nwhich the reason of them does not extend. I need not look for a\nproof beyond the case before us. What is the reason on which this\nproverbial observation is founded? No man will subject himself to\nthe ridicule of pretending that any natural connection subsists\nbetween the sun or the seasons, and the period within which human\nvirtue can bear the temptations of power. Happily for mankind,\nliberty is not, in this respect, confined to any single point of\ntime; but lies within extremes, which afford sufficient latitude\nfor all the variations which may be required by the various\nsituations and circumstances of civil society. The election of\nmagistrates might be, if it were found expedient, as in some\ninstances it actually has been, daily, weekly, or monthly, as\nwell as annual; and if circumstances may require a deviation from\nthe rule on one side, why not also on the other side? Turning our\nattention to the periods established among ourselves, for the\nelection of the most numerous branches of the State legislatures,\nwe find them by no means coinciding any more in this instance,\nthan in the elections of other civil magistrates. In Connecticut\nand Rhode Island, the periods are half-yearly. In the other\nStates, South Carolina excepted, they are annual. In South\nCarolina they are biennial as is proposed in the federal\ngovernment. Here is a difference, as four to one, between the\nlongest and shortest periods; and yet it would be not easy to\nshow, that Connecticut or Rhode Island is better governed, or\nenjoys a greater share of rational liberty, than South Carolina;\nor that either the one or the other of these States is\ndistinguished in these respects, and by these causes, from the\nStates whose elections are different from both. In searching for\nthe grounds of this doctrine, I can discover but one, and that is\nwholly inapplicable to our case. The important distinction so\nwell understood in America, between a Constitution established by\nthe people and unalterable by the government, and a law\nestablished by the government and alterable by the government,\nseems to have been little understood and less observed in any\nother country. Wherever the supreme power of legislation has\nresided, has been supposed to reside also a full power to change\nthe form of the government. Even in Great Britain, where the\nprinciples of political and civil liberty have been most\ndiscussed, and where we hear most of the rights of the\nConstitution, it is maintained that the authority of the\nParliament is transcendent and uncontrollable, as well with\nregard to the Constitution, as the ordinary objects of\nlegislative provision. They have accordingly, in several\ninstances, actually changed, by legislative acts, some of the\nmost fundamental articles of the government. They have in\nparticular, on several occasions, changed the period of election;\nand, on the last occasion, not only introduced septennial in\nplace of triennial elections, but by the same act, continued\nthemselves in place four years beyond the term for which they\nwere elected by the people. An attention to these dangerous\npractices has produced a very natural alarm in the votaries of\nfree government, of which frequency of elections is the\ncorner-stone; and has led them to seek for some security to\nliberty, against the danger to which it is exposed. Where no\nConstitution, paramount to the government, either existed or\ncould be obtained, no constitutional security, similar to that\nestablished in the United States, was to be attempted. Some\nother security, therefore, was to be sought for; and what better\nsecurity would the case admit, than that of selecting and\nappealing to some simple and familiar portion of time, as a\nstandard for measuring the danger of innovations, for fixing the\nnational sentiment, and for uniting the patriotic exertions? The\nmost simple and familiar portion of time, applicable to the\nsubject was that of a year; and hence the doctrine has been\ninculcated by a laudable zeal, to erect some barrier against the\ngradual innovations of an unlimited government, that the advance\ntowards tyranny was to be calculated by the distance of departure\nfrom the fixed point of annual elections. But what necessity can\nthere be of applying this expedient to a government limited, as\nthe federal government will be, by the authority of a paramount\nConstitution? Or who will pretend that the liberties of the\npeople of America will not be more secure under biennial\nelections, unalterably fixed by such a Constitution, than those\nof any other nation would be, where elections were annual, or\neven more frequent, but subject to alterations by the ordinary\npower of the government? The second question stated is, whether\nbiennial elections be necessary or useful. The propriety of\nanswering this question in the affirmative will appear from\nseveral very obvious considerations.\n                                        No man can be a\ncompetent legislator who does not add to an upright intention and\na sound judgment a certain degree of knowledge of the subjects on\nwhich he is to legislate. A part of this knowledge may be\nacquired by means of information which lie within the compass of\nmen in private as well as public stations. Another part can only\nbe attained, or at least thoroughly attained, by actual\nexperience in the station which requires the use of it. The\nperiod of service, ought, therefore, in all such cases, to bear\nsome proportion to the extent of practical knowledge requisite to\nthe due performance of the service. The period of legislative\nservice established in most of the States for the more numerous\nbranch 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\ngreater proportion to the knowledge requisite for federal\nlegislation than one year does to the knowledge requisite for\nState legislation? The very statement of the question, in this\nform, suggests the answer that ought to be given to it. In a\nsingle State, the requisite knowledge relates to the existing\nlaws which are uniform throughout the State, and with which all\nthe citizens are more or less conversant; and to the general\naffairs of the State, which lie within a small compass, are not\nvery diversified, and occupy much of the attention and\nconversation of every class of people. The great theatre of the\nUnited States presents a very different scene. The laws are so\nfar from being uniform, that they vary in every State; whilst the\npublic affairs of the Union are spread throughout a very\nextensive region, and are extremely diversified by t e local\naffairs connected with them, and can with difficulty be correctly\nlearnt in any other place than in the central councils to which a\nknowledge of them will be brought by the representatives of every\npart of the empire. Yet some knowledge of the affairs, and even\nof the laws, of all the States, ought to be possessed by the\nmembers from each of the States. How can foreign trade be\nproperly regulated by uniform laws, without some acquaintance\nwith the commerce, the ports, the usages, and the regulatious of\nthe different States? How can the trade between the different\nStates 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\nrelating to these objects in the different States? How can\nuniform regulations for the militia be duly provided, without a\nsimilar knowledge of many internal circumstances by which the\nStates are distinguished from each other? These are the\nprincipal objects of federal legislation, and suggest most\nforcibly the extensive information which the representatives\nought to acquire. The other interior objects will require a\nproportional degree of information with regard to them. It is\ntrue that all these difficulties will, by degrees, be very much\ndiminished. The most laborious task will be the proper\ninauguration of the government and the primeval formation of a\nfederal code. Improvements on the first draughts will every year\nbecome both easier and fewer. Past transactions of the\ngovernment will be a ready and accurate source of information to\nnew members. The affairs of the Union will become more and more\nobjects of curiosity and conversation among the citizens at\nlarge. And the increased intercourse among those of different\nStates will contribute not a little to diffuse a mutual knowledge\nof their affairs, as this again will contribute to a general\nassimilation of their manners and laws. But with all these\nabatements, the business of federal legislation must continue so\nfar to exceed, both in novelty and difficulty, the legislative\nbusiness of a single State, as to justify the longer period of\nservice assigned to those who are to transact it. A branch of\nknowledge which belongs to the acquirements of a federal\nrepresentative, and which has not been mentioned is that of\nforeign affairs. In regulating our own commerce he ought to be\nnot only acquainted with the treaties between the United States\nand other nations, but also with the commercial policy and laws\nof other nations. He ought not to be altogether ignorant of the\nlaw of nations; for that, as far as it is a proper object of\nmunicipal legislation, is submitted to the federal government.\nAnd although the House of Representatives is not immediately to\nparticipate in foreign negotiations and arrangements, yet from\nthe necessary connection between the several branches of public\naffairs, those particular branches will frequently deserve\nattention in the ordinary course of legislation, and will\nsometimes demand particular legislative sanction and\nco-operation. Some portion of this knowledge may, no doubt, be\nacquired in a man's closet; but some of it also can only be\nderived from the public sources of information; and all of it\nwill be acquired to best effect by a practical attention to the\nsubject during the period of actual service in the legislature.\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\nrendered necessary by that circumstance, might be much more\nserious objections with fit men to this service, if limited to a\nsingle year, than if extended to two years. No argument can be\ndrawn on this subject, from the case of the delegates to the\nexisting Congress. They are elected annually, it is true; but\ntheir re-election is considered by the legislative assemblies\nalmost as a matter of course. The election of the representatives\nby the people would not be governed by the same principle. A few\nof the members, as happens in all such assemblies, will possess\nsuperior talents; will, by frequent reelections, become members\nof long standing; will be thoroughly masters of the public\nbusiness, and perhaps not unwilling to avail themselves of those\nadvantages. The greater the proportion of new members, and the\nless the information of the bulk of the members the more apt will\nthey be to fall into the snares that may be laid for them. This\nremark is no less applicable to the relation which will subsist\nbetween the House of Representatives and the Senate. It is an\ninconvenience mingled with the advantages of our frequent\nelections even in single States, where they are large, and hold\nbut one legislative session in a year, that spurious elections\ncannot be investigated and annulled in time for the decision to\nhave its due effect. If a return can be obtained, no matter by\nwhat unlawful means, the irregular member, who takes his seat of\ncourse, is sure of holding it a sufficient time to answer his\npurposes. Hence, a very pernicious encouragement is given to the\nuse of unlawful means, for obtaining irregular returns. Were\nelections for the federal legislature to be annual, this practice\nmight become a very serious abuse, particularly in the more\ndistant States. Each house is, as it necessarily must be, the\njudge of the elections, qualifications, and returns of its\nmembers; and whatever improvements may be suggested by\nexperience, for simplifying and accelerating the process in\ndisputed cases, so great a portion of a year would unavoidably\nelapse, before an illegitimate member could be dispossessed of\nhis seat, that the prospect of such an event would be little\ncheck to unfair and illicit means of obtaining a seat. All these\nconsiderations taken together warrant us in affirming, that\nbiennial elections will be as useful to the affairs of the public\nas we have seen that they will be safe to the liberty of the\npeople.\n\nPUBLIUS.\n", "date": "Tuesday, February 12, 1788", "title": "The Same Subject Continued (The House of Representatives)", "paper_id": 53, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nTHE next view which I shall take of the House of Representatives\nrelates to the appointment of its members to the several States\nwhich is to be determined by the same rule with that of direct\ntaxes.\n          It is not contended that the number of people in each\nState ought not to be the standard for regulating the proportion\nof those who are to represent the people of each State. The\nestablishment of the same rule for the appointment of taxes, will\nprobably be as little contested; though the rule itself in this\ncase, is by no means founded on the same principle. In the former\ncase, the rule is understood to refer to the personal rights of\nthe people, with which it has a natural and universal connection.\nIn the latter, it has reference to the proportion of wealth, of\nwhich it is in no case a precise measure, and in ordinary cases a\nvery unfit one. But notwithstanding the imperfection of the rule\nas applied to the relative wealth and contributions of the\nStates, it is evidently the least objectionable among the\npracticable rules, and had too recently obtained the general\nsanction of America, not to have found a ready preference with\nthe convention. All this is admitted, it will perhaps be said;\nbut does it follow, from an admission of numbers for the measure\nof representation, or of slaves combined with free citizens as a\nratio of taxation, that slaves ought to be included in the\nnumerical rule of representation? Slaves are considered as\nproperty, not as persons. They ought therefore to be comprehended\nin estimates of taxation which are founded on property, and to be\nexcluded from representation which is regulated by a census of\npersons. This is the objection, as I understand it, stated in its\nfull force. I shall be equally candid in stating the reasoning\nwhich may be offered on the opposite side. \"We subscribe to the\ndoctrine,\" might one of our Southern brethren observe, \"that\nrepresentation relates more immediately to persons, and taxation\nmore 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\nrespect whatever as persons. The true state of the case is, that\nthey partake of both these qualities: being considered by our\nlaws, in some respects, as persons, and in other respects as\nproperty. In being compelled to labor, not for himself, but for\na master; in being vendible by one master to another master; and\nin being subject at all times to be restrained in his liberty and\nchastised in his body, by the capricious will of another, the\nslave may appear to be degraded from the human rank, and classed\nwith those irrational animals which fall under the legal\ndenomination of property. In being protected, on the other hand,\nin his life and in his limbs, against the violence of all\nothers, even the master of his labor and his liberty; and in\nbeing punishable himself for all violence committed against\nothers, the slave is no less evidently regarded by the law as a\nmember of the society, not as a part of the irrational creation;\nas a moral person, not as a mere article of property. The\nfederal Constitution, therefore, decides with great propriety on\nthe case of our slaves, when it views them in the mixed character\nof persons and of property. This is in fact their true\ncharacter. It is the character bestowed on them by the laws\nunder which they live; and it will not be denied, that these are\nthe proper criterion; because it is only under the pretext that\nthe laws have transformed the negroes into subjects of property,\nthat a place is disputed them in the computation of numbers; and\nit is admitted, that if the laws were to restore the rights which\nhave been taken away, the negroes could no longer be refused an\nequal share of representation with the other inhabitants. \"This\nquestion may be placed in another light. It is agreed on all\nsides, that numbers are the best scale of wealth and taxation, as\nthey are the only proper scale of representation. Would the\nconvention have been impartial or consistent, if they had\nrejected the slaves from the list of inhabitants, when the shares\nof representation were to be calculated, and inserted them on the\nlists when the tariff of contributions was to be adjusted? Could\nit be reasonably expected, that the Southern States would concur\nin a system, which considered their slaves in some degree as men,\nwhen burdens were to be imposed, but refused to consider them in\nthe same light, when advantages were to be conferred? Might not\nsome surprise also be expressed, that those who reproach the\nSouthern States with the barbarous policy of considering as\nproperty a part of their human brethren, should themselves\ncontend, that the government to which all the States are to be\nparties, ought to consider this unfortunate race more completely\nin the unnatural light of property, than the very laws of which\nthey complain? \"It may be replied, perhaps, that slaves are not\nincluded in the estimate of representatives in any of the States\npossessing them. They neither vote themselves nor increase the\nvotes of their masters. Upon what principle, then, ought they to\nbe taken into the federal estimate of representation? In\nrejecting them altogether, the Constitution would, in this\nrespect, have followed the very laws which have been appealed to\nas the proper guide. \"This objection is repelled by a single\nobservation. It is a fundamental principle of the proposed\nConstitution, that as the aggregate number of representatives\nallotted to the several States is to be determined by a federal\nrule, founded on the aggregate number of inhabitants, so the\nright of choosing this allotted number in each State is to be\nexercised by such part of the inhabitants as the State itself may\ndesignate. The qualifications on which the right of suffrage\ndepend are not, perhaps, the same in any two States. In some of\nthe States the difference is very material. In every State, a\ncertain proportion of inhabitants are deprived of this right by\nthe constitution of the State, who will be included in the census\nby which the federal Constitution apportions the representatives.\nIn this point of view the Southern States might retort the\ncomplaint, by insisting that the principle laid down by the\nconvention required that no regard should be had to the policy of\nparticular States towards their own inhabitants; and\nconsequently, that the slaves, as inhabitants, should have been\nadmitted into the census according to their full number, in like\nmanner with other inhabitants, who, by the policy of other\nStates, are not admitted to all the rights of citizens. A\nrigorous adherence, however, to this principle, is waived by\nthose who would be gainers by it. All that they ask is that\nequal moderation be shown on the other side. Let the case of the\nslaves be considered, as it is in truth, a peculiar one. Let the\ncompromising expedient of the Constitution be mutually adopted,\nwhich regards them as inhabitants, but as debased by servitude\nbelow the equal level of free inhabitants, which regards the\nSLAVE as divested of two fifths of the MAN. \"After all, may not\nanother ground be taken on which this article of the\nConstitution will admit of a still more ready defense? We have\nhitherto proceeded on the idea that representation related to\npersons only, and not at all to property. But is it a just idea?\nGovernment is instituted no less for protection of the property,\nthan of the persons, of individuals. The one as well as the\nother, therefore, may be considered as represented by those who\nare charged with the government. Upon this principle it is, that\nin several of the States, and particularly in the State of New\nYork, one branch of the government is intended more especially to\nbe the guardian of property, and is accordingly elected by that\npart of the society which is most interested in this object of\ngovernment. In the federal Constitution, this policy does not\nprevail. The rights of property are committed into the same hands\nwith the personal rights. Some attention ought, therefore, to be\npaid to property in the choice of those hands. \"For another\nreason, the votes allowed in the federal legislature to the\npeople of each State, ought to bear some proportion to the\ncomparative wealth of the States. States have not, like\nindividuals, an influence over each other, arising from superior\nadvantages of fortune. If the law allows an opulent citizen but a\nsingle vote in the choice of his representative, the respect and\nconsequence which he derives from his fortunate situation very\nfrequently guide the votes of others to the objects of his\nchoice; and through this imperceptible channel the rights of\nproperty are conveyed into the public representation. A State\npossesses no such influence over other States. It is not probable\nthat the richest State in the Confederacy will ever influence the\nchoice of a single representative in any other State. Nor will\nthe representatives of the larger and richer States possess any\nother advantage in the federal legislature, over the\nrepresentatives of other States, than what may result from their\nsuperior number alone. As far, therefore, as their superior\nwealth and weight may justly entitle them to any advantage, it\nought to be secured to them by a superior share of\nrepresentation. The new Constitution is, in this respect,\nmaterially different from the existing Confederation, as well as\nfrom that of the United Netherlands, and other similar\nconfederacies. In each of the latter, the efficacy of the\nfederal 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\nunequal influence, corresponding with the unequal importance of\nthese subsequent and voluntary resolutions. Under the proposed\nConstitution, the federal acts will take effect without the\nnecessary intervention of the individual States. They will depend\nmerely on the majority of votes in the federal legislature, and\nconsequently each vote, whether proceeding from a larger or\nsmaller State, or a State more or less wealthy or powerful, will\nhave an equal weight and efficacy: in the same manner as the\nvotes individually given in a State legislature, by the\nrepresentatives of unequal counties or other districts, have\neach a precise equality of value and effect; or if there be any\ndifference in the case, it proceeds from the difference in the\npersonal character of the individual representative, rather than\nfrom any regard to the extent of the district from which he\ncomes. \"Such is the reasoning which an advocate for the\nSouthern interests might employ on this subject; and although it\nmay appear to be a little strained in some points, yet, on the\nwhole, I must confess that it fully reconciles me to the scale of\nrepresentation which the convention have established. In one\nrespect, the establishment of a common measure for representation\nand taxation will have a very salutary effect. As the accuracy\nof the census to be obtained by the Congress will necessarily\ndepend, in a considerable degree on the disposition, if not on\nthe co-operation, of the States, it is of great importance that\nthe States should feel as little bias as possible, to swell or to\nreduce the amount of their numbers. Were their share of\nrepresentation alone to be governed by this rule, they would have\nan interest in exaggerating their inhabitants. Were the rule to\ndecide their share of taxation alone, a contrary temptation would\nprevail. By extending the rule to both objects, the States will\nhave opposite interests, which will control and balance each\nother, and produce the requisite impartiality.\n\nPUBLIUS.\n", "date": "Tuesday, February 12, 1788", "title": "The Apportionment of Members Among the States", "paper_id": 54, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nTHE number of which the House of Representatives is to consist,\nforms another and a very interesting point of view, under which\nthis branch of the federal legislature may be contemplated.\nScarce any article, indeed, in the whole Constitution seems to be\nrendered more worthy of attention, by the weight of character and\nthe apparent force of argument with which it has been assailed.\nThe charges exhibited against it are, first, that so small a\nnumber of representatives will be an unsafe depositary of the\npublic interests; secondly, that they will not possess a proper\nknowledge of the local circumstances of their numerous\nconstituents; thirdly, that they will be taken from that class of\ncitizens which will sympathize least with the feelings of the\nmass of the people, and be most likely to aim at a permanent\nelevation of the few on the depression of the many; fourthly,\nthat defective as the number will be in the first instance, it\nwill be more and more disproportionate, by the increase of the\npeople, and the obstacles which will prevent a correspondent\nincrease of the representatives. In general it may be remarked on\nthis subject, that no political problem is less susceptible of a\nprecise solution than that which relates to the number most\nconvenient for a representative legislature; nor is there any\npoint on which the policy of the several States is more at\nvariance, whether we compare their legislative assemblies\ndirectly with each other, or consider the proportions which they\nrespectively bear to the number of their constituents. Passing\nover the difference between the smallest and largest States, as\nDelaware, whose most numerous branch consists of twenty-one\nrepresentatives, and Massachusetts, where it amounts to between\nthree and four hundred, a very considerable difference is\nobservable among States nearly equal in population. The number of\nrepresentatives in Pennsylvania is not more than one fifth of\nthat in the State last mentioned. New York, whose population is\nto that of South Carolina as six to five, has little more than\none third of the number of representatives. As great a disparity\nprevails between the States of Georgia and Delaware or Rhode\nIsland. In Pennsylvania, the representatives do not bear a\ngreater proportion to their constituents than of one for every\nfour or five thousand. In Rhode Island, they bear a proportion of\nat least one for every thousand. And according to the\nconstitution of Georgia, the proportion may be carried to one to\nevery ten electors; and must unavoidably far exceed the\nproportion in any of the other States. Another general remark to\nbe made is, that the ratio between the representatives and the\npeople ought not to be the same where the latter are very\nnumerous as where they are very few. Were the representatives in\nVirginia to be regulated by the standard in Rhode Island, they\nwould, at this time, amount to between four and five hundred; and\ntwenty or thirty years hence, to a thousand. On the other hand,\nthe ratio of Pennsylvania, if applied to the State of Delaware,\nwould reduce the representative assembly of the latter to seven\nor eight members. Nothing can be more fallacious than to found\nour political calculations on arithmetical principles. Sixty or\nseventy men may be more properly trusted with a given degree of\npower than six or seven. But it does not follow that six or seven\nhundred would be proportionably a better depositary. And if we\ncarry on the supposition to six or seven thousand, the whole\nreasoning ought to be reversed. The truth is, that in all cases a\ncertain number at least seems to be necessary to secure the\nbenefits of free consultation and discussion, and to guard\nagainst too easy a combination for improper purposes; as, on the\nother hand, the number ought at most to be kept within a certain\nlimit, in order to avoid the confusion and intemperance of a\nmultitude. In all very numerous assemblies, of whatever character\ncomposed, passion never fails to wrest the sceptre from reason.\nHad every Athenian citizen been a Socrates, every Athenian\nassembly would still have been a mob.\n                                         It is necessary also to\nrecollect here the observations which were applied to the case of\nbiennial elections. For the same reason that the limited powers\nof the Congress, and the control of the State legislatures,\njustify less frequent elections than the public safely might\notherwise require, the members of the Congress need be less\nnumerous than if they possessed the whole power of legislation,\nand were under no other than the ordinary restraints of other\nlegislative bodies. With these general ideas in our mind, let us\nweigh the objections which have been stated against the number of\nmembers proposed for the House of Representatives. It is said, in\nthe first place, that so small a number cannot be safely trusted\nwith so much power. The number of which this branch of the\nlegislature is to consist, at the outset of the government, will\nbe sixtyfive. Within three years a census is to be taken, when\nthe number may be augmented to one for every thirty thousand\ninhabitants; and within every successive period of ten years the\ncensus is to be renewed, and augmentations may continue to be\nmade under the above limitation. It will not be thought an\nextravagant conjecture that the first census will, at the rate of\none for every thirty thousand, raise the number of\nrepresentatives to at least one hundred. Estimating the negroes\nin the proportion of three fifths, it can scarcely be doubted\nthat the population of the United States will by that time, if it\ndoes not already, amount to three millions. At the expiration of\ntwenty-five years, according to the computed rate of increase,\nthe number of representatives will amount to two hundred, and of\nfifty years, to four hundred. This is a number which, I presume,\nwill put an end to all fears arising from the smallness of the\nbody. I take for granted here what I shall, in answering the\nfourth objection, hereafter show, that the number of\nrepresentatives will be augmented from time to time in the\nmanner provided by the Constitution. On a contrary supposition, I\nshould admit the objection to have very great weight indeed. The\ntrue question to be decided then is, whether the smallness of the\nnumber, as a temporary regulation, be dangerous to the public\nliberty? Whether sixty-five members for a few years, and a\nhundred or two hundred for a few more, be a safe depositary for a\nlimited and well-guarded power of legislating for the United\nStates? I must own that I could not give a negative answer to\nthis question, without first obliterating every impression which\nI have received with regard to the present genius of the people\nof America, the spirit which actuates the State legislatures, and\nthe principles which are incorporated with the political\ncharacter of every class of citizens I am unable to conceive that\nthe people of America, in their present temper, or under any\ncircumstances which can speedily happen, will choose, and every\nsecond year repeat the choice of, sixty-five or a hundred men who\nwould be disposed to form and pursue a scheme of tyranny or\ntreachery. I am unable to conceive that the State legislatures,\nwhich must feel so many motives to watch, and which possess so\nmany means of counteracting, the federal legislature, would fail\neither to detect or to defeat a conspiracy of the latter against\nthe liberties of their common constituents. I am equally unable\nto conceive that there are at this time, or can be in any short\ntime, in the United States, any sixty-five or a hundred men\ncapable of recommending themselves to the choice of the people at\nlarge, who would either desire or dare, within the short space of\ntwo years, to betray the solemn trust committed to them. What\nchange of circumstances, time, and a fuller population of our\ncountry may produce, requires a prophetic spirit to declare,\nwhich makes no part of my pretensions. But judging from the\ncircumstances now before us, and from the probable state of them\nwithin a moderate period of time, I must pronounce that the\nliberties of America cannot be unsafe in the number of hands\nproposed by the federal Constitution. From what quarter can the\ndanger proceed? Are we afraid of foreign gold? If foreign gold\ncould so easily corrupt our federal rulers and enable them to\nensnare and betray their constituents, how has it happened that\nwe are at this time a free and independent nation? The Congress\nwhich conducted us through the Revolution was a less numerous\nbody than their successors will be; they were not chosen by, nor\nresponsible to, their fellowcitizens at large; though appointed\nfrom year to year, and recallable at pleasure, they were\ngenerally continued for three years, and prior to the\nratification of the federal articles, for a still longer term.\nThey held their consultations always under the veil of secrecy;\nthey had the sole transaction of our affairs with foreign\nnations; through the whole course of the war they had the fate of\ntheir country more in their hands than it is to be hoped will\never be the case with our future representatives; and from the\ngreatness of the prize at stake, and the eagerness of the party\nwhich lost it, it may well be supposed that the use of other\nmeans than force would not have been scrupled. Yet we know by\nhappy experience that the public trust was not betrayed; nor has\nthe purity of our public councils in this particular ever\nsuffered, even from the whispers of calumny. Is the danger\napprehended from the other branches of the federal government?\nBut where are the means to be found by the President, or the\nSenate, or both? Their emoluments of office, it is to be\npresumed, will not, and without a previous corruption of the\nHouse of Representatives cannot, more than suffice for very\ndifferent purposes; their private fortunes, as they must allbe\nAmerican citizens, cannot possibly be sources of danger. The\nonly means, then, which they can possess, will be in the\ndispensation of appointments. Is it here that suspicion rests\nher charge? Sometimes we are told that this fund of corruption\nis to be exhausted by the President in subduing the virtue of the\nSenate. Now, the fidelity of the other House is to be the\nvictim. The improbability of such a mercenary and perfidious\ncombination of the several members of government, standing on as\ndifferent foundations as republican principles will well admit,\nand at the same time accountable to the society over which they\nare placed, ought alone to quiet this apprehension. But,\nfortunately, the Constitution has provided a still further\nsafeguard. The members of the Congress are rendered ineligible\nto any civil offices that may be created, or of which the\nemoluments may be increased, during the term of their election.\nNo offices therefore can be dealt out to the existing members but\nsuch as may become vacant by ordinary casualties: and to suppose\nthat these would be sufficient to purchase the guardians of the\npeople, selected by the people themselves, is to renounce every\nrule by which events ought to be calculated, and to substitute an\nindiscriminate and unbounded jealousy, with which all reasoning\nmust be vain. The sincere friends of liberty, who give\nthemselves up to the extravagancies of this passion, are not\naware of the injury they do their own cause. As there is a\ndegree of depravity in mankind which requires a certain degree of\ncircumspection and distrust, so there are other qualities in\nhuman nature which justify a certain portion of esteem and\nconfidence. Republican government presupposes the existence of\nthese qualities in a higher degree than any other form. Were the\npictures which have been drawn by the political jealousy of some\namong us faithful likenesses of the human character, the\ninference would be, that there is not sufficient virtue among men\nfor self-government; and that nothing less than the chains of\ndespotism can restrain them from destroying and devouring one\nanother.\n\nPUBLIUS.\n", "date": "Friday, February 15, 1788", "title": "The Total Number of the House of Representatives", "paper_id": 55, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nTHE SECOND charge against the House of Representatives is, that\nit will be too small to possess a due knowledge of the interests\nof its constituents. As this objection evidently proceeds from a\ncomparison of the proposed number of representatives with the\ngreat extent of the United States, the number of their\ninhabitants, and the diversity of their interests, without taking\ninto 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\nthese peculiarities. It is a sound and important principle that\nthe representative ought to be acquainted with the interests and\ncircumstances of his constituents. But this principle can extend\nno further than to those circumstances and interests to which the\nauthority and care of the representative relate. An ignorance of\na variety of minute and particular objects, which do not lie\nwithin the compass of legislation, is consistent with every\nattribute necessary to a due performance of the legislative\ntrust. In determining the extent of information required in the\nexercise of a particular authority, recourse then must be had to\nthe objects within the purview of that authority. What are to be\nthe objects of federal legislation? Those which are of most\nimportance, and which seem most to require local knowledge, are\ncommerce, taxation, and the militia. A proper regulation of\ncommerce requires much information, as has been elsewhere\nremarked; but as far as this information relates to the laws and\nlocal situation of each individual State, a very few\nrepresentatives would be very sufficient vehicles of it to the\nfederal councils. Taxation will consist, in a great measure, of\nduties which will be involved in the regulation of commerce. So\nfar the preceding remark is applicable to this object. As far as\nit may consist of internal collections, a more diffusive\nknowledge of the circumstances of the State may be necessary. But\nwill not this also be possessed in sufficient degree by a very\nfew intelligent men, diffusively elected within the State? Divide\nthe largest State into ten or twelve districts, and it will be\nfound that there will be no peculiar local interests in either,\nwhich will not be within the knowledge of the representative of\nthe district. Besides this source of information, the laws of the\nState, framed by representatives from every part of it, will be\nalmost of themselves a sufficient guide. In every State there\nhave been made, and must continue to be made, regulations on this\nsubject which will, in many cases, leave little more to be done\nby the federal legislature, than to review the different laws,\nand reduce them in one general act. A skillful individual in his\ncloset with all the local codes before him, might compile a law\non some subjects of taxation for the whole union, without any aid\nfrom oral information, and it may be expected that whenever\ninternal taxes may be necessary, and particularly in cases\nrequiring uniformity throughout the States, the more simple\nobjects will be preferred. To be fully sensible of the facility\nwhich will be given to this branch of federal legislation by the\nassistance of the State codes, we need only suppose for a moment\nthat this or any other State were divided into a number of parts,\neach having and exercising within itself a power of local\nlegislation. Is it not evident that a degree of local information\nand preparatory labor would be found in the several volumes of\ntheir proceedings, which would very much shorten the labors of\nthe general legislature, and render a much smaller number of\nmembers sufficient for it? The federal councils will derive great\nadvantage from another circumstance. The representatives of each\nState will not only bring with them a considerable knowledge of\nits laws, and a local knowledge of their respective districts,\nbut will probably in all cases have been members, and may even at\nthe very time be members, of the State legislature, where all the\nlocal information and interests of the State are assembled, and\nfrom whence they may easily be conveyed by a very few hands into\nthe legislature of the United States. The observations made on\nthe subject of taxation apply with greater force to the case of\nthe militia. For however different the rules of discipline may be\nin different States, they are the same throughout each particular\nState; and depend on circumstances which can differ but little in\ndifferent parts of the same State. The attentive reader will\ndiscern that the reasoning here used, to prove the sufficiency of\na moderate number of representatives, does not in any respect\ncontradict what was urged on another occasion with regard to the\nextensive information which the representatives ought to possess,\nand the time that might be necessary for acquiring it. This\ninformation, so far as it may relate to local objects, is\nrendered necessary and difficult, not by a difference of laws and\nlocal circumstances within a single State, but of those among\ndifferent States. Taking each State by itself, its laws are the\nsame, and its interests but little diversified. A few men,\ntherefore, will possess all the knowledge requisite for a proper\nrepresentation of them. Were the interests and affairs of each\nindividual State perfectly simple and uniform, a knowledge of\nthem in one part would involve a knowledge of them in every\nother, and the whole State might be competently represented by a\nsingle member taken from any part of it. On a comparison of the\ndifferent States together, we find a great dissimilarity in their\nlaws, and in many other circumstances connected with the objects\nof federal legislation, with all of which the federal\nrepresentatives ought to have some acquaintance. Whilst a few\nrepresentatives, therefore, from each State, may bring with them\na due knowledge of their own State, every representative will\nhave much information to acquire concerning all the other States.\nThe changes of time, as was formerly remarked, on the comparative\nsituation of the different States, will have an assimilating\neffect. The effect of time on the internal affairs of the States,\ntaken singly, will be just the contrary. At present some of the\nStates are little more than a society of husbandmen. Few of them\nhave made much progress in those branches of industry which give\na variety and complexity to the affairs of a nation. These,\nhowever, 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\ntaken care that the progress of population may be accompanied\nwith a proper increase of the representative branch of the\ngovernment. The experience of Great Britain, which presents to\nmankind so many political lessons, both of the monitory and\nexemplary kind, and which has been frequently consulted in the\ncourse of these inquiries, corroborates the result of the\nreflections which we have just made. The number of inhabitants in\nthe two kingdoms of England and Scotland cannot be stated at less\nthan eight millions. The representatives of these eight millions\nin the House of Commons amount to five hundred and fifty-eight.\nOf this number, one ninth are elected by three hundred and\nsixty-four persons, and one half, by five thousand seven hundred\nand twenty-three persons. 1 It cannot be supposed that the half\nthus elected, and who do not even reside among the people at\nlarge, can add any thing either to the security of the people\nagainst the government, or to the knowledge of their\ncircumstances and interests in the legislative councils. On the\ncontrary, it is notorious, that they are more frequently the\nrepresentatives and instruments of the executive magistrate, than\nthe guardians and advocates of the popular rights. They might\ntherefore, with great propriety, be considered as something more\nthan a mere deduction from the real representatives of the\nnation. We will, however, consider them in this light alone, and\nwill not extend the deduction to a considerable number of\nothers, who do not reside among their constitutents, are very\nfaintly connected with them, and have very little particular\nknowledge of their affairs. With all these concessions, two\nhundred and seventy-nine persons only will be the depository of\nthe safety, interest, and happiness of eight millions that is to\nsay, there will be one representative only to maintain the rights\nand explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED\nAND SEVENTY constitutents, in an assembly exposed to the whole\nforce of executive influence, and extending its authority to\nevery object of legislation within a nation whose affairs are in\nthe highest degree diversified and complicated. Yet it is very\ncertain, not only that a valuable portion of freedom has been\npreserved under all these circumstances, but that the defects in\nthe British code are chargeable, in a very small proportion, on\nthe ignorance of the legislature concerning the circumstances of\nthe people. Allowing to this case the weight which is due to it,\nand comparing it with that of the House of Representatives as\nabove explained it seems to give the fullest assurance, that a\nrepresentative for every THIRTY THOUSAND INHABITANTS will render\nthe latter both a safe and competent guardian of the interests\nwhich will be confided to it.\n\nPUBLIUS.\n\n1. Burgh's \"Political\nDisquisitions. \"\n", "date": "Tuesday, February 19, 1788", "title": "The Same Subject Continued (The Total Number of the House of Representatives)", "paper_id": 56, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nTHE THIRD charge against the House of Representatives is, that it\nwill be taken from that class of citizens which will have least\nsympathy with the mass of the people, and be most likely to aim\nat an ambitious sacrifice of the many to the aggrandizement of\nthe few. Of all the objections which have been framed against the\nfederal Constitution, this is perhaps the most extraordinary.\nWhilst the objection itself is levelled against a pretended\noligarchy, the principle of it strikes at the very root of\nrepublican government. The aim of every political constitution\nis, or ought to be, first to obtain for rulers men who possess\nmost wisdom to discern, and most virtue to pursue, the common\ngood of the society; and in the next place, to take the most\neffectual precautions for keeping them virtuous whilst they\ncontinue to hold their public trust. The elective mode of\nobtaining rulers is the characteristic policy of republican\ngovernment. The means relied on in this form of government for\npreventing their degeneracy are numerous and various. The most\neffectual one, is such a limitation of the term of appointments\nas will maintain a proper responsibility to the people. Let me\nnow ask what circumstance there is in the constitution of the\nHouse of Representatives that violates the principles of\nrepublican government, or favors the elevation of the few on the\nruins of the many? Let me ask whether every circumstance is not,\non the contrary, strictly conformable to these principles, and\nscrupulously impartial to the rights and pretensions of every\nclass and description of citizens? Who are to be the electors of\nthe federal representatives? Not the rich, more than the poor;\nnot the learned, more than the ignorant; not the haughty heirs of\ndistinguished names, more than the humble sons of obscurity and\nunpropitious fortune. The electors are to be the great body of\nthe people of the United States. They are to be the same who\nexercise the right in every State of electing the corresponding\nbranch of the legislature of the State. Who are to be the objects\nof popular choice? Every citizen whose merit may recommend him to\nthe esteem and confidence of his country. No qualification of\nwealth, of birth, of religious faith, or of civil profession is\npermitted to fetter the judgement or disappoint the inclination\nof the people. If we consider the situation of the men on whom\nthe free suffrages of their fellow-citizens may confer the\nrepresentative trust, we shall find it involving every security\nwhich can be devised or desired for their fidelity to their\nconstituents. In the first place, as they will have been\ndistinguished by the preference of their fellow-citizens, we are\nto presume that in general they will be somewhat distinguished\nalso by those qualities which entitle them to it, and which\npromise a sincere and scrupulous regard to the nature of their\nengagements. In the second place, they will enter into the public\nservice under circumstances which cannot fail to produce a\ntemporary affection at least to their constituents. There is in\nevery breast a sensibility to marks of honor, of favor, of\nesteem, and of confidence, which, apart from all considerations\nof interest, is some pledge for grateful and benevolent returns.\nIngratitude is a common topic of declamation against human\nnature; and it must be confessed that instances of it are but too\nfrequent and flagrant, both in public and in private life. But\nthe universal and extreme indignation which it inspires is itself\na proof of the energy and prevalence of the contrary sentiment.\nIn the third place, those ties which bind the representative to\nhis constituents are strengthened by motives of a more selfish\nnature. His pride and vanity attach him to a form of government\nwhich favors his pretensions and gives him a share in its honors\nand distinctions. Whatever hopes or projects might be entertained\nby a few aspiring characters, it must generally happen that a\ngreat proportion of the men deriving their advancement from their\ninfluence with the people, would have more to hope from a\npreservation of the favor, than from innovations in the\ngovernment subversive of the authority of the people. All these\nsecurities, however, would be found very insufficient without the\nrestraint of frequent elections. Hence, in the fourth place, the\nHouse of Representatives is so constituted as to support in the\nmembers an habitual recollection of their dependence on the\npeople. Before the sentiments impressed on their minds by the\nmode of their elevation can be effaced by the exercise of power,\nthey will be compelled to anticipate the moment when their power\nis to cease, when their exercise of it is to be reviewed, and\nwhen they must descend to the level from which they were raised;\nthere forever to remain unless a faithful discharge of their\ntrust shall have established their title to a renewal of it. I\nwill add, as a fifth circumstance in the situation of the House\nof Representatives, restraining them from oppressive measures,\nthat they can make no law which will not have its full operation\non themselves and their friends, as well as on the great mass of\nthe society. This has always been deemed one of the strongest\nbonds by which human policy can connect the rulers and the people\ntogether. It creates between them that communion of interests and\nsympathy of sentiments, of which few governments have furnished\nexamples; but without which every government degenerates into\ntyranny. If it be asked, what is to restrain the House of\nRepresentatives from making legal discriminations in favor of\nthemselves and a particular class of the society? I answer: the\ngenius of the whole system; the nature of just and constitutional\nlaws; and above all, the vigilant and manly spirit which actuates\nthe people of America, a spirit which nourishes freedom, and in\nreturn is nourished by it. If this spirit shall ever be so far\ndebased as to tolerate a law not obligatory on the legislature,\nas well as on the people, the people will be prepared to tolerate\nany thing but liberty. Such will be the relation between the\nHouse of Representatives and their constituents. Duty, gratitude,\ninterest, ambition itself, are the chords by which they will be\nbound to fidelity and sympathy with the great mass of the people.\nIt is possible that these may all be insufficient to control the\ncaprice and wickedness of man. But are they not all that\ngovernment will admit, and that human prudence can devise? Are\nthey not the genuine and the characteristic means by which\nrepublican government provides for the liberty and happiness of\nthe people? Are they not the identical means on which every State\ngovernment in the Union relies for the attainment of these\nimportant ends? What then are we to understand by the objection\nwhich this paper has combated? What are we to say to the men who\nprofess the most flaming zeal for republican government, yet\nboldly impeach the fundamental principle of it; who pretend to be\nchampions for the right and the capacity of the people to choose\ntheir own rulers, yet maintain that they will prefer those only\nwho will immediately and infallibly betray the trust committed to\nthem? Were the objection to be read by one who had not seen the\nmode prescribed by the Constitution for the choice of\nrepresentatives, he could suppose nothing less than that some\nunreasonable qualification of property was annexed to the right\nof suffrage; or that the right of eligibility was limited to\npersons of particular families or fortunes; or at least that the\nmode prescribed by the State constitutions was in some respect or\nother, very grossly departed from. We have seen how far such a\nsupposition would err, as to the two first points. Nor would it,\nin fact, be less erroneous as to the last. The only difference\ndiscoverable between the two cases is, that each representative\nof the United States will be elected by five or six thousand\ncitizens; whilst in the individual States, the election of a\nrepresentative is left to about as many hundreds. Will it be\npretended that this difference is sufficient to justify an\nattachment to the State governments, and an abhorrence to the\nfederal government? If this be the point on which the objection\nturns, it deserves to be examined. Is it supported by REASON?\nThis cannot be said, without maintaining that five or six\nthousand citizens are less capable of choosing a fit\nrepresentative, or more liable to be corrupted by an unfit one,\nthan five or six hundred. Reason, on the contrary, assures us,\nthat as in so great a number a fit representative would be most\nlikely to be found, so the choice would be less likely to be\ndiverted from him by the intrigues of the ambitious or the\nambitious or the bribes of the rich. Is the CONSEQUENCE from\nthis doctrine admissible? If we say that five or six hundred\ncitizens are as many as can jointly exercise their right of\nsuffrage, must we not deprive the people of the immediate choice\nof their public servants, in every instance where the\nadministration of the government does not require as many of them\nas will amount to one for that number of citizens? Is the\ndoctrine warranted by FACTS? It was shown in the last paper, that\nthe real representation in the British House of Commons very\nlittle exceeds the proportion of one for every thirty thousand\ninhabitants. Besides a variety of powerful causes not existing\nhere, and which favor in that country the pretensions of rank and\nwealth, no person is eligible as a representative of a county,\nunless he possess real estate of the clear value of six hundred\npounds sterling per year; nor of a city or borough, unless he\npossess a like estate of half that annual value. To this\nqualification on the part of the county representatives is added\nanother on the part of the county electors, which restrains the\nright of suffrage to persons having a freehold estate of the\nannual value of more than twenty pounds sterling, according to\nthe present rate of money. Notwithstanding these unfavorable\ncircumstances, and notwithstanding some very unequal laws in the\nBritish code, it cannot be said that the representatives of the\nnation have elevated the few on the ruins of the many. But we\nneed not resort to foreign experience on this subject. Our own\nis explicit and decisive. The districts in New Hampshire in\nwhich the senators are chosen immediately by the people, are\nnearly as large as will be necessary for her representatives in\nthe Congress. Those of Massachusetts are larger than will be\nnecessary for that purpose; and those of New York still more so.\nIn the last State the members of Assembly for the cities and\ncounties of New York and Albany are elected by very nearly as\nmany voters as will be entitled to a representative in the\nCongress, calculating on the number of sixty-five representatives\nonly. It makes no difference that in these senatorial districts\nand counties a number of representatives are voted for by each\nelector at the same time. If the same electors at the same time\nare capable of choosing four or five representatives, they cannot\nbe incapable of choosing one. Pennsylvania is an additional\nexample. Some of her counties, which elect her State\nrepresentatives, are almost as large as her districts will be by\nwhich her federal representatives will be elected. The city of\nPhiladelphia is supposed to contain between fifty and sixty\nthousand souls. It will therefore form nearly two districts for\nthe choice of federal representatives. It forms, however, but\none county, in which every elector votes for each of its\nrepresentatives in the State legislature. And what may appear to\nbe still more directly to our purpose, the whole city actually\nelects a SINGLE MEMBER for the executive council. This is the\ncase in all the other counties of the State. Are not these facts\nthe most satisfactory proofs of the fallacy which has been\nemployed 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\nof Pennsylvania, or the members of the Assembly in the two last\nStates, have betrayed any peculiar disposition to sacrifice the\nmany to the few, or are in any respect less worthy of their\nplaces than the representatives and magistrates appointed in\nother States by very small divisions of the people? But there are\ncases of a stronger complexion than any which I have yet quoted.\nOne branch of the legislature of Connecticut is so constituted\nthat each member of it is elected by the whole State. So is the\ngovernor of that State, of Massachusetts, and of this State, and\nthe president of New Hampshire. I leave every man to decide\nwhether the result of any one of these experiments can be said to\ncountenance a suspicion, that a diffusive mode of choosing\nrepresentatives of the people tends to elevate traitors and to\nundermine the public liberty.\n\nPUBLIUS.\n", "date": "Tuesday, February 19, 1788", "title": "The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation", "paper_id": 57, "venue": "From the New York Packet"}
{"author": "MADISON", "text": "To the People of the State of New York:\n\nTHE remaining charge against the House of Representatives, which\nI am to examine, is grounded on a supposition that the number of\nmembers will not be augmented from time to time, as the progress\nof population may demand. It has been admitted, that this\nobjection, if well supported, would have great weight. The\nfollowing observations will show that, like most other objections\nagainst the Constitution, it can only proceed from a partial view\nof the subject, or from a jealousy which discolors and disfigures\nevery object which is beheld. 1. Those who urge the objection\nseem not to have recollected that the federal Constitution will\nnot suffer by a comparison with the State constitutions, in the\nsecurity provided for a gradual augmentation of the number of\nrepresentatives. The number which is to prevail in the first\ninstance is declared to be temporary. Its duration is limited to\nthe short term of three years. Within every successive term of\nten years a census of inhabitants is to be repeated. The\nunequivocal objects of these regulations are, first, to readjust,\nfrom time to time, the apportionment of representatives to the\nnumber of inhabitants, under the single exception that each State\nshall have one representative at least; secondly, to augment the\nnumber of representatives at the same periods, under the sole\nlimitation that the whole number shall not exceed one for every\nthirty thousand inhabitants. If we review the constitutions of\nthe several States, we shall find that some of them contain no\ndeterminate regulations on this subject, that others correspond\npretty much on this point with the federal Constitution, and that\nthe most effectual security in any of them is resolvable into a\nmere directory provision. 2. As far as experience has taken place\non this subject, a gradual increase of representatives under the\nState constitutions has at least kept pace with that of the\nconstituents, and it appears that the former have been as ready\nto concur in such measures as the latter have been to call for\nthem. 3. There is a peculiarity in the federal Constitution which\ninsures a watchful attention in a majority both of the people and\nof their representatives to a constitutional augmentation of the\nlatter. The peculiarity lies in this, that one branch of the\nlegislature is a representation of citizens, the other of the\nStates: in the former, consequently, the larger States will have\nmost weight; in the latter, the advantage will be in favor of the\nsmaller States. From this circumstance it may with certainty be\ninferred that the larger States will be strenuous advocates for\nincreasing the number and weight of that part of the legislature\nin which their influence predominates. And it so happens that\nfour only of the largest will have a majority of the whole votes\nin the House of Representatives. Should the representatives or\npeople, therefore, of the smaller States oppose at any time a\nreasonable addition of members, a coalition of a very few States\nwill be sufficient to overrule the opposition; a coalition which,\nnotwithstanding the rivalship and local prejudices which might\nprevent it on ordinary occasions, would not fail to take place,\nwhen not merely prompted by common interest, but justified by\nequity and the principles of the Constitution. It may be\nalleged, perhaps, that the Senate would be prompted by like\nmotives to an adverse coalition; and as their concurrence would\nbe indispensable, the just and constitutional views of the other\nbranch might be defeated. This is the difficulty which has\nprobably created the most serious apprehensions in the jealous\nfriends of a numerous representation. Fortunately it is among\nthe difficulties which, existing only in appearance, vanish on a\nclose and accurate inspection. The following reflections will,\nif I mistake not, be admitted to be conclusive and satisfactory\non this point. Notwithstanding the equal authority which will\nsubsist between the two houses on all legislative subjects,\nexcept the originating of money bills, it cannot be doubted that\nthe House, composed of the greater number of members, when\nsupported by the more powerful States, and speaking the known and\ndetermined sense of a majority of the people, will have no small\nadvantage in a question depending on the comparative firmness of\nthe two houses. This advantage must be increased by the\nconsciousness, felt by the same side of being supported in its\ndemands by right, by reason, and by the Constitution; and the\nconsciousness, on the opposite side, of contending against the\nforce of all these solemn considerations. It is farther to be\nconsidered, that in the gradation between the smallest and\nlargest States, there are several, which, though most likely in\ngeneral to arrange themselves among the former are too little\nremoved in extent and population from the latter, to second an\nopposition to their just and legitimate pretensions. Hence it is\nby no means certain that a majority of votes, even in the\nSenate, would be unfriendly to proper augmentations in the number\nof representatives. It will not be looking too far to add, that\nthe senators from all the new States may be gained over to the\njust views of the House of Representatives, by an expedient too\nobvious to be overlooked. As these States will, for a great\nlength of time, advance in population with peculiar rapidity,\nthey will be interested in frequent reapportionments of the\nrepresentatives to the number of inhabitants. The large States,\ntherefore, who will prevail in the House of Representatives, will\nhave nothing to do but to make reapportionments and augmentations\nmutually conditions of each other; and the senators from all the\nmost growing States will be bound to contend for the latter, by\nthe interest which their States will feel in the former. These\nconsiderations 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\nall be insufficient to subdue the unjust policy of the smaller\nStates, or their predominant influence in the councils of the\nSenate, a constitutional and infallible resource still remains\nwith the larger States, by which they will be able at all times\nto accomplish their just purposes. The House of Representatives\ncannot only refuse, but they alone can propose, the supplies\nrequisite for the support of government. They, in a word, hold\nthe purse that powerful instrument by which we behold, in the\nhistory of the British Constitution, an infant and humble\nrepresentation of the people gradually enlarging the sphere of\nits activity and importance, and finally reducing, as far as it\nseems to have wished, all the overgrown prerogatives of the other\nbranches of the government. This power over the purse may, in\nfact, be regarded as the most complete and effectual weapon with\nwhich any constitution can arm the immediate representatives of\nthe people, for obtaining a redress of every grievance, and for\ncarrying into effect every just and salutary measure. But will\nnot the House of Representatives be as much interested as the\nSenate in maintaining the government in its proper functions, and\nwill they not therefore be unwilling to stake its existence or\nits reputation on the pliancy of the Senate? Or, if such a trial\nof firmness between the two branches were hazarded, would not the\none be as likely first to yield as the other? These questions\nwill create no difficulty with those who reflect that in all\ncases the smaller the number, and the more permanent and\nconspicuous the station, of men in power, the stronger must be\nthe 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\nsensible to every prospect of public danger, or of dishonorable\nstagnation in public affairs. To those causes we are to ascribe\nthe continual triumph of the British House of Commons over the\nother branches of the government, whenever the engine of a money\nbill has been employed. An absolute inflexibility on the side of\nthe latter, although it could not have failed to involve every\ndepartment of the state in the general confusion, has neither\nbeen apprehended nor experienced. The utmost degree of firmness\nthat can be displayed by the federal Senate or President, will\nnot be more than equal to a resistance in which they will be\nsupported by constitutional and patriotic principles. In this\nreview of the Constitution of the House of Representatives, I\nhave passed over the circumstances of economy, which, in the\npresent state of affairs, might have had some effect in lessening\nthe temporary number of representatives, and a disregard of which\nwould probably have been as rich a theme of declamation against\nthe Constitution as has been shown by the smallness of the number\nproposed. I omit also any remarks on the difficulty which might\nbe found, under present circumstances, in engaging in the federal\nservice a large number of such characters as the people will\nprobably elect. One observation, however, I must be permitted to\nadd on this subject as claiming, in my judgment, a very serious\nattention. It is, that in all legislative assemblies the greater\nthe number composing them may be, the fewer will be the men who\nwill in fact direct their proceedings. In the first place, the\nmore numerous an assembly may be, of whatever characters\ncomposed, the greater is known to be the ascendency of passion\nover reason. In the next place, the larger the number, the\ngreater will be the proportion of members of limited information\nand of weak capacities. Now, it is precisely on characters of\nthis description that the eloquence and address of the few are\nknown to act with all their force. In the ancient republics,\nwhere the whole body of the people assembled in person, a single\norator, or an artful statesman, was generally seen to rule with\nas complete a sway as if a sceptre had been placed in his single\nhand. On the same principle, the more multitudinous a\nrepresentative assembly may be rendered, the more it will partake\nof the infirmities incident to collective meetings of the people.\nIgnorance will be the dupe of cunning, and passion the slave of\nsophistry and declamation. The people can never err more than in\nsupposing that by multiplying their representatives beyond a\ncertain limit, they strengthen the barrier against the government\nof a few. Experience will forever admonish them that, on the\ncontrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF\nSAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE\nWHOLE SOCIETY, they will counteract their own views by every\naddition to their representatives. The countenance of the\ngovernment may become more democratic, but the soul that animates\nit will be more oligarchic. The machine will be enlarged, but the\nfewer, and often the more secret, will be the springs by which\nits motions are directed. As connected with the objection against\nthe number of representatives, may properly be here noticed, that\nwhich has been suggested against the number made competent for\nlegislative business. It has been said that more than a majority\nought to have been required for a quorum; and in particular\ncases, if not in all, more than a majority of a quorum for a\ndecision. That some advantages might have resulted from such a\nprecaution, cannot be denied. It might have been an additional\nshield to some particular interests, and another obstacle\ngenerally to hasty and partial measures. But these considerations\nare outweighed by the inconveniences in the opposite scale. In\nall cases where justice or the general good might require new\nlaws to be passed, or active measures to be pursued, the\nfundamental principle of free government would be reversed. It\nwould be no longer the majority that would rule: the power would\nbe transferred to the minority. Were the defensive privilege\nlimited to particular cases, an interested minority might take\nadvantage of it to screen themselves from equitable sacrifices to\nthe general weal, or, in particular emergencies, to extort\nunreasonable indulgences. Lastly, it would facilitate and foster\nthe baneful practice of secessions; a practice which has shown\nitself even in States where a majority only is required; a\npractice subversive of all the principles of order and regular\ngovernment; a practice which leads more directly to public\nconvulsions, and the ruin of popular governments, than any other\nwhich has yet been displayed among us.\n\nPUBLIUS.\n", "date": null, "title": "Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered", "paper_id": 58, "venue": null}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE natural order of the subject leads us to consider, in this\nplace, that provision of the Constitution which authorizes the\nnational legislature to regulate, in the last resort, the\nelection of its own members. It is in these words: \"The TIMES,\nPLACES, and MANNER of holding elections for senators and\nrepresentatives shall be prescribed in each State by the\nlegislature thereof; but the Congress may, at any time, by law,\nmake or alter SUCH REGULATIONS, except as to the PLACES of\nchoosing senators. \" [1] This provision has not only been declaimed\nagainst by those who condemn the Constitution in the gross, but\nit has been censured by those who have objected with less\nlatitude and greater moderation; and, in one instance it has been\nthought exceptionable by a gentleman who has declared himself the\nadvocate of every other part of the system. I am greatly\nmistaken, notwithstanding, if there be any article in the whole\nplan more completely defensible than this. Its propriety rests\nupon the evidence of this plain proposition, that EVERY\nGOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN\nPRESERVATION. Every just reasoner will, at first sight, approve\nan adherence to this rule, in the work of the convention; and\nwill disapprove every deviation from it which may not appear to\nhave been dictated by the necessity of incorporating into the\nwork some particular ingredient, with which a rigid conformity to\nthe rule was incompatible. Even in this case, though he may\nacquiesce in the necessity, yet he will not cease to regard and\nto regret a departure from so fundamental a principle, as a\nportion of imperfection in the system which may prove the seed of\nfuture weakness, and perhaps anarchy. It will not be alleged,\nthat an election law could have been framed and inserted in the\nConstitution, which would have been always applicable to every\nprobable change in the situation of the country; and it will\ntherefore not be denied, that a discretionary power over\nelections ought to exist somewhere. It will, I presume, be as\nreadily conceded, that there were only three ways in which this\npower could have been reasonably modified and disposed: that it\nmust either have been lodged wholly in the national legislature,\nor wholly in the State legislatures, or primarily in the latter\nand ultimately in the former. The last mode has, with reason,\nbeen preferred by the convention. They have submitted the\nregulation of elections for the federal government, in the first\ninstance, to the local administrations; which, in ordinary\ncases, and when no improper views prevail, may be both more\nconvenient and more satisfactory; but they have reserved to the\nnational authority a right to interpose, whenever extraordinary\ncircumstances might render that interposition necessary to its\nsafety. Nothing can be more evident, than that an exclusive\npower of regulating elections for the national government, in the\nhands of the State legislatures, would leave the existence of the\nUnion entirely at their mercy. They could at any moment\nannihilate it, by neglecting to provide for the choice of persons\nto administer its affairs. It is to little purpose to say, that\na neglect or omission of this kind would not be likely to take\nplace. The constitutional possibility of the thing, without an\nequivalent for the risk, is an unanswerable objection. Nor has\nany satisfactory reason been yet assigned for incurring that\nrisk. The extravagant surmises of a distempered jealousy can\nnever be dignified with that character. If we are in a humor to\npresume abuses of power, it is as fair to presume them on the\npart of the State governments as on the part of the general\ngovernment. And as it is more consonant to the rules of a just\ntheory, to trust the Union with the care of its own existence,\nthan to transfer that care to any other hands, if abuses of power\nare to be hazarded on the one side or on the other, it is more\nrational to hazard them where the power would naturally be\nplaced, than where it would unnaturally be placed. Suppose an\narticle had been introduced into the Constitution, empowering the\nUnited States to regulate the elections for the particular\nStates, would any man have hesitated to condemn it, both as an\nunwarrantable transposition of power, and as a premeditated\nengine for the destruction of the State governments? The\nviolation of principle, in this case, would have required no\ncomment; and, to an unbiased observer, it will not be less\napparent in the project of subjecting the existence of the\nnational government, in a similar respect, to the pleasure of the\nState governments. An impartial view of the matter cannot fail\nto result in a conviction, that each, as far as possible, ought\nto depend on itself for its own preservation. As an objection to\nthis position, it may be remarked that the constitution of the\nnational Senate would involve, in its full extent, the danger\nwhich it is suggested might flow from an exclusive power in the\nState legislatures to regulate the federal elections. It may be\nalleged, that by declining the appointment of Senators, they\nmight at any time give a fatal blow to the Union; and from this\nit may be inferred, that as its existence would be thus rendered\ndependent upon them in so essential a point, there can be no\nobjection to intrusting them with it in the particular case under\nconsideration. The interest of each State, it may be added, to\nmaintain its representation in the national councils, would be a\ncomplete security against an abuse of the trust. This argument,\nthough specious, will not, upon examination, be found solid. It\nis certainly true that the State legislatures, by forbearing the\nappointment of senators, may destroy the national government. But\nit will not follow that, because they have a power to do this in\none instance, they ought to have it in every other. There are\ncases in which the pernicious tendency of such a power may be far\nmore decisive, without any motive equally cogent with that which\nmust have regulated the conduct of the convention in respect to\nthe formation of the Senate, to recommend their admission into\nthe system. So far as that construction may expose the Union to\nthe possibility of injury from the State legislatures, it is an\nevil; but it is an evil which could not have been avoided without\nexcluding the States, in their political capacities, wholly from\na place in the organization of the national government. If this\nhad been done, it would doubtless have been interpreted into an\nentire dereliction of the federal principle; and would certainly\nhave deprived the State governments of that absolute safeguard\nwhich they will enjoy under this provision. But however wise it\nmay have been to have submitted in this instance to an\ninconvenience, for the attainment of a necessary advantage or a\ngreater good, no inference can be drawn from thence to favor an\naccumulation of the evil, where no necessity urges, nor any\ngreater good invites. It may be easily discerned also that the\nnational government would run a much greater risk from a power in\nthe State legislatures over the elections of its House of\nRepresentatives, than from their power of appointing the members\nof its Senate. The senators are to be chosen for the period of\nsix years; there is to be a rotation, by which the seats of a\nthird part of them are to be vacated and replenished every two\nyears; and no State is to be entitled to more than two senators;\na quorum of the body is to consist of sixteen members. The joint\nresult of these circumstances would be, that a temporary\ncombination of a few States to intermit the appointment of\nsenators, could neither annul the existence nor impair the\nactivity of the body; and it is not from a general and permanent\ncombination of the States that we can have any thing to fear. The\nfirst might proceed from sinister designs in the leading members\nof a few of the State legislatures; the last would suppose a\nfixed and rooted disaffection in the great body of the people,\nwhich will either never exist at all, or will, in all\nprobability, proceed from an experience of the inaptitude of the\ngeneral government to the advancement of their happiness in which\nevent no good citizen could desire its continuance. But with\nregard to the federal House of Representatives, there is intended\nto be a general election of members once in two years. If the\nState legislatures were to be invested with an exclusive power of\nregulating these elections, every period of making them would be\na delicate crisis in the national situation, which might issue in\na dissolution of the Union, if the leaders of a few of the most\nimportant States should have entered into a previous conspiracy\nto prevent an election. I shall not deny, that there is a degree\nof weight in the observation, that the interests of each State,\nto be represented in the federal councils, will be a security\nagainst the abuse of a power over its elections in the hands of\nthe State legislatures. But the security will not be considered\nas complete, by those who attend to the force of an obvious\ndistinction 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\nwarmly attached to the government of the Union, at times when the\nparticular rulers of particular States, stimulated by the natural\nrivalship of power, and by the hopes of personal aggrandizement,\nand supported by a strong faction in each of those States, may be\nin a very opposite temper. This diversity of sentiment between a\nmajority of the people, and the individuals who have the\ngreatest credit in their councils, is exemplified in some of the\nStates at the present moment, on the present question. The\nscheme of separate confederacies, which will always multiply the\nchances of ambition, will be a never failing bait to all such\ninfluential characters in the State administrations as are\ncapable of preferring their own emolument and advancement to the\npublic weal. With so effectual a weapon in their hands as the\nexclusive power of regulating elections for the national\ngovernment, a combination of a few such men, in a few of the most\nconsiderable States, where the temptation will always be the\nstrongest, might accomplish the destruction of the Union, by\nseizing the opportunity of some casual dissatisfaction among the\npeople (and which perhaps they may themselves have excited), to\ndiscontinue the choice of members for the federal House of\nRepresentatives. It ought never to be forgotten, that a firm\nunion of this country, under an efficient government, will\nprobably be an increasing object of jealousy to more than one\nnation of Europe; and that enterprises to subvert it will\nsometimes originate in the intrigues of foreign powers, and will\nseldom fail to be patronized and abetted by some of them. Its\npreservation, therefore ought in no case that can be avoided, to\nbe committed to the guardianship of any but those whose situation\nwill uniformly beget an immediate interest in the faithful and\nvigilant performance of the trust.\n\nPUBLIUS.\n\n1. Ist clause, 4th\nsection, of the Ist article.\n", "date": "Friday, February 22, 1788", "title": "Concerning the Power of Congress to Regulate the Election of Members", "paper_id": 59, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nWE HAVE seen, that an uncontrollable power over the elections to\nthe federal government could not, without hazard, be committed to\nthe State legislatures. Let us now see, what would be the danger on\nthe other side; that is, from confiding the ultimate right of\nregulating its own elections to the Union itself. It is not\npretended, that this right would ever be used for the exclusion of\nany State from its share in the representation. The interest of all\nwould, in this respect at least, be the security of all. But it is\nalleged, that it might be employed in such a manner as to promote\nthe election of some favorite class of men in exclusion of others,\nby confining the places of election to particular districts, and\nrendering it impracticable to the citizens at large to partake in\nthe choice. Of all chimerical suppositions, this seems to be the\nmost chimerical. On the one hand, no rational calculation of\nprobabilities would lead us to imagine that the disposition which a\nconduct so violent and extraordinary would imply, could ever find\nits way into the national councils; and on the other, it may be\nconcluded with certainty, that if so improper a spirit should ever\ngain 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\nfrom this single reflection, that it could never be made without\ncausing an immediate revolt of the great body of the people, headed\nand directed by the State governments. It is not difficult to\nconceive that this characteristic right of freedom may, in certain\nturbulent and factious seasons, be violated, in respect to a\nparticular class of citizens, by a victorious and overbearing\nmajority; but that so fundamental a privilege, in a country so\nsituated and enlightened, should be invaded to the prejudice of the\ngreat mass of the people, by the deliberate policy of the\ngovernment, without occasioning a popular revolution, is altogether\ninconceivable and incredible.\n\nIn addition to this general reflection, there are considerations\nof a more precise nature, which forbid all apprehension on the\nsubject. The dissimilarity in the ingredients which will compose\nthe national government, and still more in the manner in which they\nwill be brought into action in its various branches, must form a\npowerful obstacle to a concert of views in any partial scheme of\nelections. There is sufficient diversity in the state of property,\nin the genius, manners, and habits of the people of the different\nparts of the Union, to occasion a material diversity of disposition\nin their representatives towards the different ranks and conditions\nin society. And though an intimate intercourse under the same\ngovernment will promote a gradual assimilation in some of these\nrespects, yet there are causes, as well physical as moral, which\nmay, in a greater or less degree, permanently nourish different\npropensities and inclinations in this respect. But the circumstance\nwhich will be likely to have the greatest influence in the matter,\nwill be the dissimilar modes of constituting the several component\nparts of the government. The House of Representatives being to be\nelected immediately by the people, the Senate by the State\nlegislatures, the President by electors chosen for that purpose by\nthe people, there would be little probability of a common interest\nto cement these different branches in a predilection for any\nparticular class of electors.\n\nAs to the Senate, it is impossible that any regulation of \"time\nand manner,\" which is all that is proposed to be submitted to the\nnational government in respect to that body, can affect the spirit\nwhich will direct the choice of its members. The collective sense\nof the State legislatures can never be influenced by extraneous\ncircumstances of that sort; a consideration which alone ought to\nsatisfy us that the discrimination apprehended would never be\nattempted. For what inducement could the Senate have to concur in a\npreference in which itself would not be included? Or to what\npurpose would it be established, in reference to one branch of the\nlegislature, if it could not be extended to the other? The\ncomposition of the one would in this case counteract that of the\nother. And we can never suppose that it would embrace the\nappointments to the Senate, unless we can at the same time suppose\nthe voluntary co-operation of the State legislatures. If we make\nthe latter supposition, it then becomes immaterial where the power\nin question is placed whether in their hands or in those of the\nUnion.\n\nBut what is to be the object of this capricious partiality in\nthe national councils? Is it to be exercised in a discrimination\nbetween the different departments of industry, or between the\ndifferent kinds of property, or between the different degrees of\nproperty? Will it lean in favor of the landed interest, or the\nmoneyed interest, or the mercantile interest, or the manufacturing\ninterest? Or, to speak in the fashionable language of the\nadversaries to the Constitution, will it court the elevation of\n\"the wealthy and the well-born,\" to the exclusion and debasement\nof all the rest of the society?\n\nIf this partiality is to be exerted in favor of those who are\nconcerned in any particular description of industry or property, I\npresume it will readily be admitted, that the competition for it\nwill lie between landed men and merchants. And I scruple not to\naffirm, that it is infinitely less likely that either of them should\ngain an ascendant in the national councils, than that the one or the\nother of them should predominate in all the local councils. The\ninference will be, that a conduct tending to give an undue\npreference to either is much less to be dreaded from the former than\nfrom the latter.\n\nThe several States are in various degrees addicted to\nagriculture and commerce. In most, if not all of them, agriculture\nis predominant. In a few of them, however, commerce nearly divides\nits empire, and in most of them has a considerable share of\ninfluence. In proportion as either prevails, it will be conveyed\ninto the national representation; and for the very reason, that\nthis will be an emanation from a greater variety of interests, and\nin much more various proportions, than are to be found in any single\nState, it will be much less apt to espouse either of them with a\ndecided partiality, than the representation of any single State.\n\nIn a country consisting chiefly of the cultivators of land,\nwhere the rules of an equal representation obtain, the landed\ninterest must, upon the whole, preponderate in the government. As\nlong as this interest prevails in most of the State legislatures, so\nlong it must maintain a correspondent superiority in the national\nSenate, which will generally be a faithful copy of the majorities of\nthose assemblies. It cannot therefore be presumed, that a sacrifice\nof the landed to the mercantile class will ever be a favorite object\nof this branch of the federal legislature. In applying thus\nparticularly to the Senate a general observation suggested by the\nsituation of the country, I am governed by the consideration, that\nthe credulous votaries of State power cannot, upon their own\nprinciples, suspect, that the State legislatures would be warped\nfrom their duty by any external influence. But in reality the same\nsituation must have the same effect, in the primative composition at\nleast 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\nrate, it may be asked, is there not danger of an opposite bias in\nthe national government, which may dispose it to endeavor to secure\na monopoly of the federal administration to the landed class? As\nthere is little likelihood that the supposition of such a bias will\nhave any terrors for those who would be immediately injured by it, a\nlabored answer to this question will be dispensed with. It will be\nsufficient to remark, first, that for the reasons elsewhere\nassigned, it is less likely that any decided partiality should\nprevail in the councils of the Union than in those of any of its\nmembers. Secondly, that there would be no temptation to violate the\nConstitution in favor of the landed class, because that class would,\nin the natural course of things, enjoy as great a preponderancy as\nitself could desire. And thirdly, that men accustomed to\ninvestigate the sources of public prosperity upon a large scale,\nmust be too well convinced of the utility of commerce, to be\ninclined to inflict upon it so deep a wound as would result from the\nentire exclusion of those who would best understand its interest\nfrom a share in the management of them. The importance of commerce,\nin the view of revenue alone, must effectually guard it against the\nenmity of a body which would be continually importuned in its favor,\nby the urgent calls of public necessity.\n\nI the rather consult brevity in discussing the probability of a\npreference founded upon a discrimination between the different kinds\nof industry and property, because, as far as I understand the\nmeaning of the objectors, they contemplate a discrimination of\nanother kind. They appear to have in view, as the objects of the\npreference with which they endeavor to alarm us, those whom they\ndesignate by the description of \"the wealthy and the well-born.\"\nThese, it seems, are to be exalted to an odious pre-eminence over\nthe rest of their fellow-citizens. At one time, however, their\nelevation is to be a necessary consequence of the smallness of the\nrepresentative body; at another time it is to be effected by\ndepriving the people at large of the opportunity of exercising their\nright of suffrage in the choice of that body.\n\nBut upon what principle is the discrimination of the places of\nelection to be made, in order to answer the purpose of the meditated\npreference? Are \"the wealthy and the well-born,\" as they are\ncalled, confined to particular spots in the several States? Have\nthey, by some miraculous instinct or foresight, set apart in each of\nthem a common place of residence? Are they only to be met with in\nthe towns or cities? Or are they, on the contrary, scattered over\nthe face of the country as avarice or chance may have happened to\ncast their own lot or that of their predecessors? If the latter is\nthe case, (as every intelligent man knows it to be, [1]) is it not\nevident that the policy of confining the places of election to\nparticular districts would be as subversive of its own aim as it\nwould be exceptionable on every other account? The truth is, that\nthere is no method of securing to the rich the preference\napprehended, but by prescribing qualifications of property either\nfor those who may elect or be elected. But this forms no part of\nthe power to be conferred upon the national government. Its\nauthority would be expressly restricted to the regulation of the\nTIMES, the PLACES, the MANNER of elections. The qualifications of\nthe persons who may choose or be chosen, as has been remarked upon\nother occasions, are defined and fixed in the Constitution, and are\nunalterable by the legislature.\n\nLet it, however, be admitted, for argument sake, that the\nexpedient suggested might be successful; and let it at the same\ntime be equally taken for granted that all the scruples which a\nsense of duty or an apprehension of the danger of the experiment\nmight inspire, were overcome in the breasts of the national rulers,\nstill I imagine it will hardly be pretended that they could ever\nhope to carry such an enterprise into execution without the aid of a\nmilitary force sufficient to subdue the resistance of the great body\nof the people. The improbability of the existence of a force equal\nto that object has been discussed and demonstrated in different\nparts of these papers; but that the futility of the objection under\nconsideration may appear in the strongest light, it shall be\nconceded for a moment that such a force might exist, and the\nnational government shall be supposed to be in the actual possession\nof it. What will be the conclusion? With a disposition to invade\nthe 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\nclass of men? Would they not be likely to prefer a conduct better\nadapted to their own immediate aggrandizement? Would they not\nrather boldly resolve to perpetuate themselves in office by one\ndecisive act of usurpation, than to trust to precarious expedients\nwhich, in spite of all the precautions that might accompany them,\nmight terminate in the dismission, disgrace, and ruin of their\nauthors? Would they not fear that citizens, not less tenacious than\nconscious of their rights, would flock from the remote extremes of\ntheir respective States to the places of election, to overthrow\ntheir tyrants, and to substitute men who would be disposed to avenge\nthe violated majesty of the people?\n\nPUBLIUS.\n\n1. Particularly in the Southern States and in this State.\n", "date": "Tuesday, February 26, 1788", "title": "The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)", "paper_id": 60, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To 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\na declaration, that all elections should be had in the counties\nwhere the electors resided. This, say they, was a necessary\nprecaution against an abuse of the power. A declaration of this\nnature would certainly have been harmless; so far as it would have\nhad the effect of quieting apprehensions, it might not have been\nundesirable. But it would, in fact, have afforded little or no\nadditional security against the danger apprehended; and the want of\nit will never be considered, by an impartial and judicious examiner,\nas a serious, still less as an insuperable, objection to the plan.\nThe different views taken of the subject in the two preceding\npapers must be sufficient to satisfy all dispassionate and\ndiscerning men, that if the public liberty should ever be the victim\nof the ambition of the national rulers, the power under examination,\nat least, will be guiltless of the sacrifice.\n\nIf those who are inclined to consult their jealousy only, would\nexercise it in a careful inspection of the several State\nconstitutions, they would find little less room for disquietude and\nalarm, from the latitude which most of them allow in respect to\nelections, than from the latitude which is proposed to be allowed to\nthe national government in the same respect. A review of their\nsituation, in this particular, would tend greatly to remove any ill\nimpressions which may remain in regard to this matter. But as that\nview would lead into long and tedious details, I shall content\nmyself with the single example of the State in which I write. The\nconstitution of New York makes no other provision for LOCALITY of\nelections, than that the members of the Assembly shall be elected in\nthe COUNTIES; those of the Senate, in the great districts into\nwhich the State is or may be divided: these at present are four in\nnumber, and comprehend each from two to six counties. It may\nreadily be perceived that it would not be more difficult to the\nlegislature of New York to defeat the suffrages of the citizens of\nNew York, by confining elections to particular places, than for the\nlegislature of the United States to defeat the suffrages of the\ncitizens of the Union, by the like expedient. Suppose, for\ninstance, the city of Albany was to be appointed the sole place of\nelection for the county and district of which it is a part, would\nnot the inhabitants of that city speedily become the only electors\nof the members both of the Senate and Assembly for that county and\ndistrict? Can we imagine that the electors who reside in the remote\nsubdivisions of the counties of Albany, Saratoga, Cambridge, etc.,\nor in any part of the county of Montgomery, would take the trouble\nto come to the city of Albany, to give their votes for members of\nthe Assembly or Senate, sooner than they would repair to the city of\nNew York, to participate in the choice of the members of the federal\nHouse of Representatives? The alarming indifference discoverable in\nthe exercise of so invaluable a privilege under the existing laws,\nwhich afford every facility to it, furnishes a ready answer to this\nquestion. And, abstracted from any experience on the subject, we\ncan be at no loss to determine, that when the place of election is\nat an INCONVENIENT DISTANCE from the elector, the effect upon his\nconduct will be the same whether that distance be twenty miles or\ntwenty thousand miles. Hence it must appear, that objections to the\nparticular modification of the federal power of regulating elections\nwill, in substance, apply with equal force to the modification of\nthe like power in the constitution of this State; and for this\nreason it will be impossible to acquit the one, and to condemn the\nother. A similar comparison would lead to the same conclusion in\nrespect to the constitutions of most of the other States.\n\nIf it should be said that defects in the State constitutions\nfurnish no apology for those which are to be found in the plan\nproposed, I answer, that as the former have never been thought\nchargeable with inattention to the security of liberty, where the\nimputations thrown on the latter can be shown to be applicable to\nthem also, the presumption is that they are rather the cavilling\nrefinements of a predetermined opposition, than the well-founded\ninferences of a candid research after truth. To those who are\ndisposed to consider, as innocent omissions in the State\nconstitutions, what they regard as unpardonable blemishes in the\nplan of the convention, nothing can be said; or at most, they can\nonly be asked to assign some substantial reason why the\nrepresentatives of the people in a single State should be more\nimpregnable to the lust of power, or other sinister motives, than\nthe representatives of the people of the United States? If they\ncannot do this, they ought at least to prove to us that it is easier\nto subvert the liberties of three millions of people, with the\nadvantage of local governments to head their opposition, than of two\nhundred thousand people who are destitute of that advantage. And in\nrelation to the point immediately under consideration, they ought to\nconvince us that it is less probable that a predominant faction in a\nsingle State should, in order to maintain its superiority, incline\nto a preference of a particular class of electors, than that a\nsimilar spirit should take possession of the representatives of\nthirteen States, spread over a vast region, and in several respects\ndistinguishable from each other by a diversity of local\ncircumstances, prejudices, 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\nof the danger of placing the power elsewhere, and on that of the\nsafety of placing it in the manner proposed. But there remains to\nbe mentioned a positive advantage which will result from this\ndisposition, and which could not as well have been obtained from any\nother: I allude to the circumstance of uniformity in the time of\nelections for the federal House of Representatives. It is more than\npossible that this uniformity may be found by experience to be of\ngreat importance to the public welfare, both as a security against\nthe perpetuation of the same spirit in the body, and as a cure for\nthe diseases of faction. If each State may choose its own time of\nelection, it is possible there may be at least as many different\nperiods as there are months in the year. The times of election in\nthe several States, as they are now established for local purposes,\nvary between extremes as wide as March and November. The\nconsequence of this diversity would be that there could never happen\na total dissolution or renovation of the body at one time. If an\nimproper spirit of any kind should happen to prevail in it, that\nspirit would be apt to infuse itself into the new members, as they\ncome forward in succession. The mass would be likely to remain\nnearly the same, assimilating constantly to itself its gradual\naccretions. There is a contagion in example which few men have\nsufficient force of mind to resist. I am inclined to think that\ntreble the duration in office, with the condition of a total\ndissolution of the body at the same time, might be less formidable\nto liberty than one third of that duration subject to gradual and\nsuccessive 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\nyear.\n\nIt may be asked, Why, then, could not a time have been fixed in\nthe Constitution? As the most zealous adversaries of the plan of\nthe convention in this State are, in general, not less zealous\nadmirers of the constitution of the State, the question may be\nretorted, and it may be asked, Why was not a time for the like\npurpose fixed in the constitution of this State? No better answer\ncan be given than that it was a matter which might safely be\nentrusted to legislative discretion; and that if a time had been\nappointed, it might, upon experiment, have been found less\nconvenient than some other time. The same answer may be given to\nthe question put on the other side. And it may be added that the\nsupposed 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\nfor the national government at the same epochs.\n\nPUBLIUS.\n", "date": "Tuesday, February 26, 1788", "title": "The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)", "paper_id": 61, "venue": "From the New York Packet"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nHAVING examined the constitution of the House of\nRepresentatives, and answered such of the objections against it as\nseemed to merit notice, I enter next on the examination of the\nSenate.\n\nThe heads into which this member of the government may be\nconsidered are: I. The qualification of senators; II. The\nappointment of them by the State legislatures; III. The equality of\nrepresentation in the Senate; IV. The number of senators, and the\nterm for which they are to be elected; V. The powers vested in the\nSenate.\n\nI. The qualifications proposed for senators, as distinguished\nfrom those of representatives, consist in a more advanced age and a\nlonger period of citizenship. A senator must be thirty years of age\nat least; as a representative must be twenty-five. And the former\nmust have been a citizen nine years; as seven years are required\nfor the latter. The propriety of these distinctions is explained by\nthe nature of the senatorial trust, which, requiring greater extent\nof information and stability of character, requires at the same time\nthat the senator should have reached a period of life most likely to\nsupply these advantages; and which, participating immediately in\ntransactions with foreign nations, ought to be exercised by none who\nare not thoroughly weaned from the prepossessions and habits\nincident to foreign birth and education. The term of nine years\nappears to be a prudent mediocrity between a total exclusion of\nadopted citizens, whose merits and talents may claim a share in the\npublic confidence, and an indiscriminate and hasty admission of\nthem, which might create a channel for foreign influence on the\nnational councils.\n\nII. It is equally unnecessary to dilate on the appointment of\nsenators by the State legislatures. Among the various modes which\nmight have been devised for constituting this branch of the\ngovernment, that which has been proposed by the convention is\nprobably the most congenial with the public opinion. It is\nrecommended by the double advantage of favoring a select\nappointment, and of giving to the State governments such an agency\nin the formation of the federal government as must secure the\nauthority of the former, and may form a convenient link between the\ntwo systems.\n\nIII. The equality of representation in the Senate is another\npoint, which, being evidently the result of compromise between the\nopposite pretensions of the large and the small States, does not\ncall for much discussion. If indeed it be right, that among a\npeople thoroughly incorporated into one nation, every district ought\nto have a PROPORTIONAL share in the government, and that among\nindependent and sovereign States, bound together by a simple league,\nthe parties, however unequal in size, ought to have an EQUAL share\nin the common councils, it does not appear to be without some reason\nthat in a compound republic, partaking both of the national and\nfederal character, the government ought to be founded on a mixture\nof the principles of proportional and equal representation. But it\nis superfluous to try, by the standard of theory, a part of the\nConstitution which is allowed on all hands to be the result, not of\ntheory, but \"of a spirit of amity, and that mutual deference and\nconcession which the peculiarity of our political situation rendered\nindispensable.\" A common government, with powers equal to its\nobjects, is called for by the voice, and still more loudly by the\npolitical situation, of America. A government founded on principles\nmore consonant to the wishes of the larger States, is not likely to\nbe obtained from the smaller States. The only option, then, for the\nformer, lies between the proposed government and a government still\nmore objectionable. Under this alternative, the advice of prudence\nmust be to embrace the lesser evil; and, instead of indulging a\nfruitless anticipation of the possible mischiefs which may ensue, to\ncontemplate rather the advantageous consequences which may qualify\nthe sacrifice.\n\nIn this spirit it may be remarked, that the equal vote allowed\nto each State is at once a constitutional recognition of the portion\nof sovereignty remaining in the individual States, and an instrument\nfor preserving that residuary sovereignty. So far the equality\nought to be no less acceptable to the large than to the small\nStates; since they are not less solicitous to guard, by every\npossible expedient, against an improper consolidation of the States\ninto one simple republic.\n\nAnother advantage accruing from this ingredient in the\nconstitution of the Senate is, the additional impediment it must\nprove against improper acts of legislation. No law or resolution\ncan now be passed without the concurrence, first, of a majority of\nthe people, and then, of a majority of the States. It must be\nacknowledged that this complicated check on legislation may in some\ninstances be injurious as well as beneficial; and that the peculiar\ndefense which it involves in favor of the smaller States, would be\nmore rational, if any interests common to them, and distinct from\nthose of the other States, would otherwise be exposed to peculiar\ndanger. But as the larger States will always be able, by their\npower over the supplies, to defeat unreasonable exertions of this\nprerogative of the lesser States, and as the faculty and excess of\nlaw-making seem to be the diseases to which our governments are most\nliable, it is not impossible that this part of the Constitution may\nbe more convenient in practice than it appears to many in\ncontemplation.\n\nIV. The number of senators, and the duration of their\nappointment, come next to be considered. In order to form an\naccurate judgment on both of these points, it will be proper to\ninquire into the purposes which are to be answered by a senate; and\nin order to ascertain these, it will be necessary to review the\ninconveniences which a republic must suffer from the want of such an\ninstitution.\n\nFirst. It is a misfortune incident to republican\ngovernment, though in a less degree than to other governments, that\nthose who administer it may forget their obligations to their\nconstituents, and prove unfaithful to their important trust. In\nthis point of view, a senate, as a second branch of the legislative\nassembly, distinct from, and dividing the power with, a first, must\nbe in all cases a salutary check on the government. It doubles the\nsecurity to the people, by requiring the concurrence of two distinct\nbodies in schemes of usurpation or perfidy, where the ambition or\ncorruption of one would otherwise be sufficient. This is a\nprecaution founded on such clear principles, and now so well\nunderstood in the United States, that it would be more than\nsuperfluous to enlarge on it. I will barely remark, that as the\nimprobability of sinister combinations will be in proportion to the\ndissimilarity in the genius of the two bodies, it must be politic to\ndistinguish them from each other by every circumstance which will\nconsist with a due harmony in all proper measures, and with the\ngenuine principles of republican government.\n\nSecondly. The necessity of a senate is not less indicated\nby the propensity of all single and numerous assemblies to yield to\nthe impulse of sudden and violent passions, and to be seduced by\nfactious leaders into intemperate and pernicious resolutions.\nExamples on this subject might be cited without number; and from\nproceedings within the United States, as well as from the history of\nother nations. But a position that will not be contradicted, need\nnot be proved. All that need be remarked is, that a body which is\nto correct this infirmity ought itself to be free from it, and\nconsequently ought to be less numerous. It ought, moreover, to\npossess great firmness, and consequently ought to hold its authority\nby a tenure of considerable duration.\n\nThirdly. Another defect to be supplied by a senate lies in\na want of due acquaintance with the objects and principles of\nlegislation. It is not possible that an assembly of men called for\nthe most part from pursuits of a private nature, continued in\nappointment for a short time, and led by no permanent motive to\ndevote the intervals of public occupation to a study of the laws,\nthe affairs, and the comprehensive interests of their country,\nshould, if left wholly to themselves, escape a variety of important\nerrors in the exercise of their legislative trust. It may be\naffirmed, 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\nthan the hearts of most of the authors of them. What indeed are all\nthe repealing, explaining, and amending laws, which fill and\ndisgrace our voluminous codes, but so many monuments of deficient\nwisdom; so many impeachments exhibited by each succeeding against\neach preceding session; so many admonitions to the people, of the\nvalue of those aids which may be expected from a well-constituted\nsenate?\n\nA good government implies two things: first, fidelity to the\nobject of government, which is the happiness of the people;\nsecondly, a knowledge of the means by which that object can be best\nattained. Some governments are deficient in both these qualities;\nmost governments are deficient in the first. I scruple not to\nassert, that in American governments too little attention has been\npaid to the last. The federal Constitution avoids this error; and\nwhat merits particular notice, it provides for the last in a mode\nwhich increases the security for the first.\n\nFourthly. The mutability in the public councils arising\nfrom a rapid succession of new members, however qualified they may\nbe, points out, in the strongest manner, the necessity of some\nstable institution in the government. Every new election in the\nStates is found to change one half of the representatives. From\nthis change of men must proceed a change of opinions; and from a\nchange of opinions, a change of measures. But a continual change\neven of good measures is inconsistent with every rule of prudence\nand every prospect of success. The remark is verified in private\nlife, and becomes more just, as well as more important, in national\ntransactions.\n\nTo trace the mischievous effects of a mutable government would\nfill a volume. I will hint a few only, each of which will be\nperceived to be a source of innumerable others.\n\nIn the first place, it forfeits the respect and confidence of\nother nations, and all the advantages connected with national\ncharacter. An individual who is observed to be inconstant to his\nplans, or perhaps to carry on his affairs without any plan at all,\nis marked at once, by all prudent people, as a speedy victim to his\nown unsteadiness and folly. His more friendly neighbors may pity\nhim, but all will decline to connect their fortunes with his; and\nnot a few will seize the opportunity of making their fortunes out of\nhis. One nation is to another what one individual is to another;\nwith this melancholy distinction perhaps, that the former, with\nfewer of the benevolent emotions than the latter, are under fewer\nrestraints also from taking undue advantage from the indiscretions\nof each other. Every nation, consequently, whose affairs betray a\nwant of wisdom and stability, may calculate on every loss which can\nbe sustained from the more systematic policy of their wiser\nneighbors. But the best instruction on this subject is unhappily\nconveyed to America by the example of her own situation. She finds\nthat she is held in no respect by her friends; that she is the\nderision of her enemies; and that she is a prey to every nation\nwhich has an interest in speculating on her fluctuating councils and\nembarrassed affairs.\n\nThe internal effects of a mutable policy are still more\ncalamitous. It poisons the blessing of liberty itself. It will be\nof little avail to the people, that the laws are made by men of\ntheir own choice, if the laws be so voluminous that they cannot be\nread, or so incoherent that they cannot be understood; if they be\nrepealed or revised before they are promulgated, or undergo such\nincessant changes that no man, who knows what the law is to-day, can\nguess what it will be to-morrow. Law is defined to be a rule of\naction; but how can that be a rule, which is little known, and less\nfixed?\n\nAnother effect of public instability is the unreasonable\nadvantage it gives to the sagacious, the enterprising, and the\nmoneyed few over the industrious and uniformed mass of the people.\nEvery new regulation concerning commerce or revenue, or in any way\naffecting the value of the different species of property, presents a\nnew harvest to those who watch the change, and can trace its\nconsequences; a harvest, reared not by themselves, but by the toils\nand cares of the great body of their fellow-citizens. This is a\nstate of things in which it may be said with some truth that laws\nare 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\nevery useful undertaking, the success and profit of which may depend\non a continuance of existing arrangements. What prudent merchant\nwill hazard his fortunes in any new branch of commerce when he knows\nnot but that his plans may be rendered unlawful before they can be\nexecuted? What farmer or manufacturer will lay himself out for the\nencouragement given to any particular cultivation or establishment,\nwhen he can have no assurance that his preparatory labors and\nadvances will not render him a victim to an inconstant government?\nIn a word, no great improvement or laudable enterprise can go\nforward which requires the auspices of a steady system of national\npolicy.\n\nBut the most deplorable effect of all is that diminution of\nattachment and reverence which steals into the hearts of the people,\ntowards a political system which betrays so many marks of infirmity,\nand disappoints so many of their flattering hopes. No government,\nany more than an individual, will long be respected without being\ntruly respectable; nor be truly respectable, without possessing a\ncertain portion of order and stability.\n\nPUBLIUS.\n", "date": null, "title": "The Senate", "paper_id": 62, "venue": "For the Independent Journal"}
{"author": "HAMILTON OR MADISON", "text": "To the People of the State of New York:\n\nA FIFTH desideratum, illustrating the utility of a senate, is\nthe want of a due sense of national character. Without a select and\nstable member of the government, the esteem of foreign powers will\nnot only be forfeited by an unenlightened and variable policy,\nproceeding from the causes already mentioned, but the national\ncouncils will not possess that sensibility to the opinion of the\nworld, which is perhaps not less necessary in order to merit, than\nit is to obtain, its respect and confidence.\n\nAn attention to the judgment of other nations is important to\nevery government for two reasons: the one is, that, independently\nof the merits of any particular plan or measure, it is desirable, on\nvarious accounts, that it should appear to other nations as the\noffspring of a wise and honorable policy; the second is, that in\ndoubtful cases, particularly where the national councils may be\nwarped by some strong passion or momentary interest, the presumed or\nknown opinion of the impartial world may be the best guide that can\nbe followed. What has not America lost by her want of character\nwith foreign nations; and how many errors and follies would she not\nhave avoided, if the justice and propriety of her measures had, in\nevery instance, been previously tried by the light in which they\nwould probably appear to the unbiased part of mankind?\n\nYet however requisite a sense of national character may be, it\nis evident that it can never be sufficiently possessed by a numerous\nand changeable body. It can only be found in a number so small that\na sensible degree of the praise and blame of public measures may be\nthe portion of each individual; or in an assembly so durably\ninvested with public trust, that the pride and consequence of its\nmembers may be sensibly incorporated with the reputation and\nprosperity of the community. The half-yearly representatives of\nRhode Island would probably have been little affected in their\ndeliberations on the iniquitous measures of that State, by arguments\ndrawn from the light in which such measures would be viewed by\nforeign nations, or even by the sister States; whilst it can\nscarcely be doubted that if the concurrence of a select and stable\nbody had been necessary, a regard to national character alone would\nhave prevented the calamities under which that misguided people is\nnow laboring.\n\nI add, as a SIXTH defect the want, in some important cases, of a\ndue responsibility 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,\nto be as undeniable as it is important.\n\nResponsibility, in order to be reasonable, must be limited to\nobjects within the power of the responsible party, and in order to\nbe effectual, must relate to operations of that power, of which a\nready and proper judgment can be formed by the constituents. The\nobjects of government may be divided into two general classes: the\none depending on measures which have singly an immediate and\nsensible operation; the other depending on a succession of\nwell-chosen and well-connected measures, which have a gradual and\nperhaps unobserved operation. The importance of the latter\ndescription to the collective and permanent welfare of every\ncountry, needs no explanation. And yet it is evident that an\nassembly elected for so short a term as to be unable to provide more\nthan one or two links in a chain of measures, on which the general\nwelfare may essentially depend, ought not to be answerable for the\nfinal result, any more than a steward or tenant, engaged for one\nyear, could be justly made to answer for places or improvements\nwhich could not be accomplished in less than half a dozen years.\nNor is it possible for the people to estimate the SHARE of\ninfluence which their annual assemblies may respectively have on\nevents resulting from the mixed transactions of several years. It\nis sufficiently difficult to preserve a personal responsibility in\nthe members of a NUMEROUS body, for such acts of the body as have an\nimmediate, detached, and palpable operation on its constituents.\n\nThe proper remedy for this defect must be an additional body in\nthe legislative department, which, having sufficient permanency to\nprovide for such objects as require a continued attention, and a\ntrain of measures, may be justly and effectually answerable for the\nattainment of those 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\nnot scruple to add, that such an institution may be sometimes\nnecessary as a defense to the people against their own temporary\nerrors and delusions. As the cool and deliberate sense of the\ncommunity ought, in all governments, and actually will, in all free\ngovernments, ultimately prevail over the views of its rulers; so\nthere are particular moments in public affairs when the people,\nstimulated by some irregular passion, or some illicit advantage, or\nmisled by the artful misrepresentations of interested men, may call\nfor measures which they themselves will afterwards be the most ready\nto lament and condemn. In these critical moments, how salutary will\nbe the interference of some temperate and respectable body of\ncitizens, in order to check the misguided career, and to suspend the\nblow meditated by the people against themselves, until reason,\njustice, and truth can regain their authority over the public mind?\nWhat bitter anguish would not the people of Athens have often\nescaped if their government had contained so provident a safeguard\nagainst the tyranny of their own passions? Popular liberty might\nthen have escaped the indelible reproach of decreeing to the same\ncitizens the hemlock on one day and statues on the next.\n\nIt may be suggested, that a people spread over an extensive\nregion cannot, like the crowded inhabitants of a small district, be\nsubject to the infection of violent passions, or to the danger of\ncombining in pursuit of unjust measures. I am far from denying that\nthis is a distinction of peculiar importance. I have, on the\ncontrary, endeavored in a former paper to show, that it is one of\nthe principal recommendations of a confederated republic. At the\nsame time, this advantage ought not to be considered as superseding\nthe use of auxiliary precautions. It may even be remarked, that the\nsame extended situation, which will exempt the people of America\nfrom some of the dangers incident to lesser republics, will expose\nthem to the inconveniency of remaining for a longer time under the\ninfluence of those misrepresentations which the combined industry of\ninterested men may succeed in distributing among them.\n\nIt adds no small weight to all these considerations, to\nrecollect that history informs us of no long-lived republic which\nhad not a senate. Sparta, Rome, and Carthage are, in fact, the only\nstates to whom that character can be applied. In each of the two\nfirst there was a senate for life. The constitution of the senate\nin the last is less known. Circumstantial evidence makes it\nprobable that it was not different in this particular from the two\nothers. It is at least certain, that it had some quality or other\nwhich rendered it an anchor against popular fluctuations; and that\na smaller council, drawn out of the senate, was appointed not only\nfor life, but filled up vacancies itself. These examples, though as\nunfit for the imitation, as they are repugnant to the genius, of\nAmerica, are, notwithstanding, when compared with the fugitive and\nturbulent existence of other ancient republics, very instructive\nproofs 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\nnecessary, in reasoning from the one case to the other. But after\nallowing due weight to this consideration, it may still be\nmaintained, that there are many points of similitude which render\nthese examples not unworthy of our attention. Many of the defects,\nas we have seen, which can only be supplied by a senatorial\ninstitution, are common to a numerous assembly frequently elected by\nthe people, and to the people themselves. There are others peculiar\nto the former, which require the control of such an institution.\nThe people can never wilfully betray their own interests; but they\nmay possibly be betrayed by the representatives of the people; and\nthe 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\nrepublics, consists in the principle of representation; which is\nthe pivot on which the former move, and which is supposed to have\nbeen unknown to the latter, or at least to the ancient part of them.\nThe use which has been made of this difference, in reasonings\ncontained in former papers, will have shown that I am disposed\nneither to deny its existence nor to undervalue its importance. I\nfeel the less restraint, therefore, in observing, that the position\nconcerning the ignorance of the ancient governments on the subject\nof representation, is by no means precisely true in the latitude\ncommonly given to it. Without entering into a disquisition which\nhere would be misplaced, I will refer to a few known facts, in\nsupport of what I advance.\n\nIn the most pure democracies of Greece, many of the executive\nfunctions were performed, not by the people themselves, but by\nofficers elected by the people, and REPRESENTING the people in their\nEXECUTIVE capacity.\n\nPrior to the reform of Solon, Athens was governed by nine\nArchons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of\npower delegated to them seems to be left in great obscurity.\nSubsequent to that period, we find an assembly, first of four, and\nafterwards of six hundred members, annually ELECTED BY THE PEOPLE;\nand PARTIALLY representing them in their LEGISLATIVE capacity,\nsince they were not only associated with the people in the function\nof making laws, but had the exclusive right of originating\nlegislative propositions to the people. The senate of Carthage,\nalso, 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\nBY THE WHOLE BODY OF THE PEOPLE, and considered as the\nREPRESENTATIVES of the people, almost in their PLENIPOTENTIARY\ncapacity. The Cosmi of Crete were also annually ELECTED BY THE\nPEOPLE, and have been considered by some authors as an institution\nanalogous to those of Sparta and Rome, with this difference only,\nthat in the election of that representative body the right of\nsuffrage was communicated to a part only of the people.\n\nFrom these facts, to which many others might be added, it is\nclear that the principle of representation was neither unknown to\nthe ancients nor wholly overlooked in their political constitutions.\nThe true distinction between these and the American governments,\nlies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE\nCAPACITY, from any share in the LATTER, and not in the TOTAL\nEXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the\nadministration of the FORMER. The distinction, however, thus\nqualified, must be admitted to leave a most advantageous superiority\nin favor of the United States. But to insure to this advantage its\nfull effect, we must be careful not to separate it from the other\nadvantage, of an extensive territory. For it cannot be believed,\nthat any form of representative government could have succeeded\nwithin the narrow limits occupied by the democracies of Greece.\n\nIn answer to all these arguments, suggested by reason,\nillustrated by examples, and enforced by our own experience, the\njealous adversary of the Constitution will probably content himself\nwith repeating, that a senate appointed not immediately by the\npeople, and for the term of six years, must gradually acquire a\ndangerous pre-eminence in the government, and finally transform it\ninto a tyrannical aristocracy.\n\nTo this general answer, the general reply ought to be\nsufficient, that liberty may be endangered by the abuses of liberty\nas well as by the abuses of power; that there are numerous\ninstances of the former as well as of the latter; and that the\nformer, rather than the latter, are apparently most to be\napprehended by the United States. But a more particular reply may\nbe given.\n\nBefore such a revolution can be effected, the Senate, it is to\nbe observed, must in the first place corrupt itself; must next\ncorrupt the State legislatures; must then corrupt the House of\nRepresentatives; and must finally corrupt the people at large. It\nis evident that the Senate must be first corrupted before it can\nattempt an establishment of tyranny. Without corrupting the State\nlegislatures, it cannot prosecute the attempt, because the\nperiodical change of members would otherwise regenerate the whole\nbody. Without exerting the means of corruption with equal success\non the House of Representatives, the opposition of that coequal\nbranch of the government would inevitably defeat the attempt; and\nwithout 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\nhuman address, arrive at the object of a lawless ambition, through\nall these obstructions?\n\nIf reason condemns the suspicion, the same sentence is\npronounced by experience. The constitution of Maryland furnishes\nthe most apposite example. The Senate of that State is elected, as\nthe federal Senate will be, indirectly by the people, and for a term\nless by one year only than the federal Senate. It is distinguished,\nalso, by the remarkable prerogative of filling up its own vacancies\nwithin the term of its appointment, and, at the same time, is not\nunder the control of any such rotation as is provided for the\nfederal Senate. There are some other lesser distinctions, which\nwould expose the former to colorable objections, that do not lie\nagainst the latter. If the federal Senate, therefore, really\ncontained the danger which has been so loudly proclaimed, some\nsymptoms at least of a like danger ought by this time to have been\nbetrayed by the Senate of Maryland, but no such symptoms have\nappeared. On the contrary, the jealousies at first entertained by\nmen 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\npart of it, a reputation in which it will probably not be rivalled\nby that of any State in the Union.\n\nBut if any thing could silence the jealousies on this subject,\nit ought to be the British example. The Senate there instead of\nbeing elected for a term of six years, and of being unconfined to\nparticular families or fortunes, is an hereditary assembly of\nopulent nobles. The House of Representatives, instead of being\nelected for two years, and by the whole body of the people, is\nelected for seven years, and, in very great proportion, by a very\nsmall proportion of the people. Here, unquestionably, ought to be\nseen in full display the aristocratic usurpations and tyranny which\nare at some future period to be exemplified in the United States.\nUnfortunately, however, for the anti-federal argument, the British\nhistory informs us that this hereditary assembly has not been able\nto defend itself against the continual encroachments of the House of\nRepresentatives; and that it no sooner lost the support of the\nmonarch, than it was actually crushed by the weight of the popular\nbranch.\n\nAs far as antiquity can instruct us on this subject, its\nexamples support the reasoning which we have employed. In Sparta,\nthe Ephori, the annual representatives of the people, were found an\novermatch for the senate for life, continually gained on its\nauthority and finally drew all power into their own hands. The\nTribunes of Rome, who were the representatives of the people,\nprevailed, it is well known, in almost every contest with the senate\nfor life, and in the end gained the most complete triumph over it.\nThe fact is the more remarkable, as unanimity was required in every\nact of the Tribunes, even after their number was augmented to ten.\nIt proves the irresistible force possessed by that branch of a free\ngovernment, which has the people on its side. To these examples\nmight be added that of Carthage, whose senate, according to the\ntestimony of Polybius, instead of drawing all power into its vortex,\nhad, at the commencement of the second Punic War, lost almost the\nwhole of its original portion.\n\nBesides the conclusive evidence resulting from this assemblage\nof facts, that the federal Senate will never be able to transform\nitself, by gradual usurpations, into an independent and aristocratic\nbody, we are warranted in believing, that if such a revolution\nshould ever happen from causes which the foresight of man cannot\nguard against, the House of Representatives, with the people on\ntheir side, will at all times be able to bring back the Constitution\nto its primitive form and principles. Against the force of the\nimmediate representatives of the people, nothing will be able to\nmaintain even the constitutional authority of the Senate, but such a\ndisplay of enlightened policy, and attachment to the public good, as\nwill divide with that branch of the legislature the affections and\nsupport of the entire body of the people themselves.\n\nPUBLIUS.\n", "date": null, "title": "The Senate Continued", "paper_id": 63, "venue": "For the Independent Journal"}
{"author": "JAY", "text": "To the People of the State of New York:\n\nIT IS a just and not a new observation, that enemies to\nparticular persons, and opponents to particular measures, seldom\nconfine their censures to such things only in either as are worthy\nof blame. Unless on this principle, it is difficult to explain the\nmotives of their conduct, who condemn the proposed Constitution in\nthe aggregate, and treat with severity some of the most\nunexceptionable articles in it.\n\nThe second section gives power to the President, \"BY AND WITH\nTHE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO\nTHIRDS OF THE SENATORS PRESENT CONCUR.\"\n\nThe power of making treaties is an important one, especially as\nit relates to war, peace, and commerce; and it should not be\ndelegated but in such a mode, and with such precautions, as will\nafford the highest security that it will be exercised by men the\nbest qualified for the purpose, and in the manner most conducive to\nthe public good. The convention appears to have been attentive to\nboth these points: they have directed the President to be chosen by\nselect bodies of electors, to be deputed by the people for that\nexpress purpose; and they have committed the appointment of\nsenators to the State legislatures. This mode has, in such cases,\nvastly the advantage of elections by the people in their collective\ncapacity, where the activity of party zeal, taking the advantage of\nthe supineness, the ignorance, and the hopes and fears of the unwary\nand interested, often places men in office by the votes of a small\nproportion of the electors.\n\nAs the select assemblies for choosing the President, as well as\nthe State legislatures who appoint the senators, will in general be\ncomposed of the most enlightened and respectable citizens, there is\nreason to presume that their attention and their votes will be\ndirected to those men only who have become the most distinguished by\ntheir abilities and virtue, and in whom the people perceive just\ngrounds for confidence. The Constitution manifests very particular\nattention to this object. By excluding men under thirty-five from\nthe first office, and those under thirty from the second, it\nconfines the electors to men of whom the people have had time to\nform a judgment, and with respect to whom they will not be liable to\nbe deceived by those brilliant appearances of genius and patriotism,\nwhich, like transient meteors, sometimes mislead as well as dazzle.\nIf the observation be well founded, that wise kings will always be\nserved by able ministers, it is fair to argue, that as an assembly\nof select electors possess, in a greater degree than kings, the\nmeans 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\nfrom these considerations is this, that the President and senators\nso chosen will always be of the number of those who best understand\nour national interests, whether considered in relation to the\nseveral States or to foreign nations, who are best able to promote\nthose interests, and whose reputation for integrity inspires and\nmerits confidence. With such men the power of making treaties may\nbe safely lodged.\n\nAlthough the absolute necessity of system, in the conduct of any\nbusiness, is universally known and acknowledged, yet the high\nimportance of it in national affairs has not yet become sufficiently\nimpressed on the public mind. They who wish to commit the power\nunder consideration to a popular assembly, composed of members\nconstantly coming and going in quick succession, seem not to\nrecollect that such a body must necessarily be inadequate to the\nattainment of those great objects, which require to be steadily\ncontemplated in all their relations and circumstances, and which can\nonly be approached and achieved by measures which not only talents,\nbut also exact information, and often much time, are necessary to\nconcert and to execute. It was wise, therefore, in the convention\nto provide, not only that the power of making treaties should be\ncommitted 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\nthem an opportunity of greatly extending their political\ninformation, and of rendering their accumulating experience more and\nmore beneficial to their country. Nor has the convention discovered\nless prudence in providing for the frequent elections of senators in\nsuch a way as to obviate the inconvenience of periodically\ntransferring those great affairs entirely to new men; for by\nleaving a considerable residue of the old ones in place, uniformity\nand order, as well as a constant succession of official information\nwill 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\nconsequence that this correspondence and conformity be carefully\nmaintained; and they who assent to the truth of this position will\nsee and confess that it is well provided for by making concurrence\nof the Senate necessary both to treaties and to laws.\n\nIt seldom happens in the negotiation of treaties, of whatever\nnature, but that perfect SECRECY and immediate DESPATCH are\nsometimes requisite. These are cases where the most useful\nintelligence may be obtained, if the persons possessing it can be\nrelieved from apprehensions of discovery. Those apprehensions will\noperate on those persons whether they are actuated by mercenary or\nfriendly motives; and there doubtless are many of both\ndescriptions, who would rely on the secrecy of the President, but\nwho would not confide in that of the Senate, and still less in that\nof a large popular Assembly. The convention have done well,\ntherefore, 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\nhave perceived that there are tides in them; tides very irregular\nin their duration, strength, and direction, and seldom found to run\ntwice exactly in the same manner or measure. To discern and to\nprofit by these tides in national affairs is the business of those\nwho preside over them; and they who have had much experience on\nthis head inform us, that there frequently are occasions when days,\nnay, even when hours, are precious. The loss of a battle, the death\nof a prince, the removal of a minister, or other circumstances\nintervening to change the present posture and aspect of affairs, may\nturn the most favorable tide into a course opposite to our wishes.\nAs in the field, so in the cabinet, there are moments to be seized\nas they pass, and they who preside in either should be left in\ncapacity to improve them. So often and so essentially have we\nheretofore suffered from the want of secrecy and despatch, that the\nConstitution would have been inexcusably defective, if no attention\nhad been paid to those objects. Those matters which in negotiations\nusually require the most secrecy and the most despatch, are those\npreparatory and auxiliary measures which are not otherwise important\nin a national view, than as they tend to facilitate the attainment\nof the objects of the negotiation. For these, the President will\nfind no difficulty to provide; and should any circumstance occur\nwhich requires the advice and consent of the Senate, he may at any\ntime convene them. Thus we see that the Constitution provides that\nour negotiations for treaties shall have every advantage which can\nbe derived from talents, information, integrity, and deliberate\ninvestigations, on the one hand, and from secrecy and despatch on\nthe other.\n\nBut to this plan, as to most others that have ever appeared,\nobjections are contrived and urged.\n\nSome are displeased with it, not on account of any errors or\ndefects in it, but because, as the treaties, when made, are to have\nthe force of laws, they should be made only by men invested with\nlegislative authority. These gentlemen seem not to consider that\nthe judgments of our courts, and the commissions constitutionally\ngiven by our governor, are as valid and as binding on all persons\nwhom they concern, as the laws passed by our legislature. All\nconstitutional acts of power, whether in the executive or in the\njudicial department, have as much legal validity and obligation as\nif they proceeded from the legislature; and therefore, whatever\nname be given to the power of making treaties, or however obligatory\nthey may be when made, certain it is, that the people may, with much\npropriety, commit the power to a distinct body from the legislature,\nthe executive, or the judicial. It surely does not follow, that\nbecause they have given the power of making laws to the legislature,\nthat therefore they should likewise give them the power to do every\nother act of sovereignty by which the citizens are to be bound and\naffected.\n\nOthers, though content that treaties should be made in the mode\nproposed, are averse to their being the SUPREME laws of the land.\nThey insist, and profess to believe, that treaties like acts of\nassembly, should be repealable at pleasure. This idea seems to be\nnew and peculiar to this country, but new errors, as well as new\ntruths, often appear. These gentlemen would do well to reflect that\na treaty is only another name for a bargain, and that it would be\nimpossible to find a nation who would make any bargain with us,\nwhich should be binding on them ABSOLUTELY, but on us only so long\nand so far as we may think proper to be bound by it. They who make\nlaws may, without doubt, amend or repeal them; and it will not be\ndisputed that they who make treaties may alter or cancel them; but\nstill let us not forget that treaties are made, not by only one of\nthe contracting parties, but by both; and consequently, that as the\nconsent of both was essential to their formation at first, so must\nit ever afterwards be to alter or cancel them. The proposed\nConstitution, therefore, has not in the least extended the\nobligation of treaties. They are just as binding, and just as far\nbeyond the lawful reach of legislative acts now, as they will be at\nany future period, or under any form of government.\n\nHowever useful jealousy may be in republics, yet when like bile\nin the natural, it abounds too much in the body politic, the eyes of\nboth become very liable to be deceived by the delusive appearances\nwhich that malady casts on surrounding objects. From this cause,\nprobably, proceed the fears and apprehensions of some, that the\nPresident and Senate may make treaties without an equal eye to the\ninterests of all the States. Others suspect that two thirds will\noppress the remaining third, and ask whether those gentlemen are\nmade sufficiently responsible for their conduct; whether, if they\nact corruptly, they can be punished; and if they make\ndisadvantageous treaties, how are we to get rid of those treaties?\n\nAs all the States are equally represented in the Senate, and by\nmen the most able and the most willing to promote the interests of\ntheir constituents, they will all have an equal degree of influence\nin that body, especially while they continue to be careful in\nappointing proper persons, and to insist on their punctual\nattendance. In proportion as the United States assume a national\nform and a national character, so will the good of the whole be more\nand more an object of attention, and the government must be a weak\none indeed, if it should forget that the good of the whole can only\nbe promoted by advancing the good of each of the parts or members\nwhich compose the whole. It will not be in the power of the\nPresident and Senate to make any treaties by which they and their\nfamilies and estates will not be equally bound and affected with the\nrest of the community; and, having no private interests distinct\nfrom that of the nation, they will be under no temptations to\nneglect the latter.\n\nAs to corruption, the case is not supposable. He must either\nhave been very unfortunate in his intercourse with the world, or\npossess a heart very susceptible of such impressions, who can think\nit probable that the President and two thirds of the Senate will\never be capable of such unworthy conduct. The idea is too gross and\ntoo invidious to be entertained. But in such a case, if it should\never happen, the treaty so obtained from us would, like all other\nfraudulent contracts, be null and void by the law of nations.\n\nWith respect to their responsibility, it is difficult to\nconceive how it could be increased. Every consideration that can\ninfluence the human mind, such as honor, oaths, reputations,\nconscience, the love of country, and family affections and\nattachments, afford security for their fidelity. In short, as the\nConstitution has taken the utmost care that they shall be men of\ntalents and integrity, we have reason to be persuaded that the\ntreaties they make will be as advantageous as, all circumstances\nconsidered, could be made; and so far as the fear of punishment and\ndisgrace can operate, that motive to good behavior is amply afforded\nby the article on the subject of impeachments.\n\nPUBLIUS.\n", "date": "Friday, March 7, 1788", "title": "The Powers of the Senate", "paper_id": 64, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE remaining powers which the plan of the convention allots to\nthe Senate, in a distinct capacity, are comprised in their\nparticipation with the executive in the appointment to offices, and\nin their judicial character as a court for the trial of impeachments.\nAs in the business of appointments the executive will be the\nprincipal agent, the provisions relating to it will most properly be\ndiscussed in the examination of that department. We will,\ntherefore, conclude this head with a view of the judicial character\nof the Senate.\n\nA well-constituted court for the trial of impeachments is an\nobject not more to be desired than difficult to be obtained in a\ngovernment wholly elective. The subjects of its jurisdiction are\nthose offenses which proceed from the misconduct of public men, or,\nin other words, from the abuse or violation of some public trust.\nThey are of a nature which may with peculiar propriety be\ndenominated POLITICAL, as they relate chiefly to injuries done\nimmediately to the society itself. The prosecution of them, for\nthis reason, will seldom fail to agitate the passions of the whole\ncommunity, 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;\nand in such cases there will always be the greatest danger that the\ndecision will be regulated more by the comparative strength of\nparties, than by the 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\ndifficulty of placing it rightly, in a government resting entirely\non the basis of periodical elections, will as readily be perceived,\nwhen it is considered that the most conspicuous characters in it\nwill, from that circumstance, be too often the leaders or the tools\nof the most cunning or the most numerous faction, and on this\naccount, can hardly be expected to possess the requisite neutrality\ntowards those whose conduct may be the subject of scrutiny.\n\nThe convention, it appears, thought the Senate the most fit\ndepositary of this important trust. Those who can best discern the\nintrinsic difficulty of the thing, will be least hasty in condemning\nthat opinion, and will be most inclined to allow due weight to the\narguments which may be supposed to have produced it.\n\nWhat, it may be asked, is the true spirit of the institution\nitself? Is it not designed as a method of NATIONAL INQUEST into the\nconduct of public men? If this be the design of it, who can so\nproperly be the inquisitors for the nation as the representatives of\nthe nation themselves? It is not disputed that the power of\noriginating the inquiry, or, in other words, of preferring the\nimpeachment, ought to be lodged in the hands of one branch of the\nlegislative body. Will not the reasons which indicate the propriety\nof this arrangement strongly plead for an admission of the other\nbranch of that body to a share of the inquiry? The model from which\nthe idea of this institution has been borrowed, pointed out that\ncourse to the convention. In Great Britain it is the province of\nthe House of Commons to prefer the impeachment, and of the House of\nLords to decide upon it. Several of the State constitutions have\nfollowed the example. As well the latter, as the former, seem to\nhave regarded the practice of impeachments as a bridle in the hands\nof the legislative body upon the executive servants of the\ngovernment. Is not this the true light in which it ought to be\nregarded?\n\nWhere else than in the Senate could have been found a tribunal\nsufficiently dignified, or sufficiently independent? What other\nbody would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION,\nto preserve, unawed and uninfluenced, the necessary impartiality\nbetween an INDIVIDUAL accused, and the REPRESENTATIVES OF THE\nPEOPLE, 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\npossess the degree of credit and authority, which might, on certain\noccasions, be indispensable towards reconciling the people to a\ndecision that should happen to clash with an accusation brought by\ntheir immediate representatives. A deficiency in the first, would\nbe fatal to the accused; in the last, dangerous to the public\ntranquillity. The hazard in both these respects, could only be\navoided, if at all, by rendering that tribunal more numerous than\nwould consist with a reasonable attention to economy. The necessity\nof a numerous court for the trial of impeachments, is equally\ndictated by the nature of the proceeding. This can never be tied\ndown by such strict rules, either in the delineation of the offense\nby the prosecutors, or in the construction of it by the judges, as\nin common cases serve to limit the discretion of courts in favor of\npersonal 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\nof impeachments 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\nconclusion, that the Supreme Court would have been an improper\nsubstitute for the Senate, as a court of impeachments. There\nremains a further consideration, which will not a little strengthen\nthis conclusion. It is this: The punishment which may be the\nconsequence of conviction upon impeachment, is not to terminate the\nchastisement of the offender. After having been sentenced to a\nperpetual ostracism from the esteem and confidence, and honors and\nemoluments of his country, he will still be liable to prosecution\nand punishment in the ordinary course of law. Would it be proper\nthat the persons who had disposed of his fame, and his most valuable\nrights as a citizen in one trial, should, in another trial, for the\nsame offense, be also the disposers of his life and his fortune?\nWould there not be the greatest reason to apprehend, that error, in\nthe first sentence, would be the parent of error in the second\nsentence? That the strong bias of one decision would be apt to\noverrule the influence of any new lights which might be brought to\nvary the complexion of another decision? Those who know anything of\nhuman nature, will not hesitate to answer these questions in the\naffirmative; and will be at no loss to perceive, that by making the\nsame persons judges in both cases, those who might happen to be the\nobjects of prosecution would, in a great measure, be deprived of the\ndouble security intended them by a double trial. The loss of life\nand estate would often be virtually included in a sentence which, in\nits terms, imported nothing more than dismission from a present, and\ndisqualification for a future, office. It may be said, that the\nintervention of a jury, in the second instance, would obviate the\ndanger. But juries are frequently influenced by the opinions of\njudges. They are sometimes induced to find special verdicts, which\nrefer the main question to the decision of the court. Who would be\nwilling to stake his life and his estate upon the verdict of a jury\nacting under the auspices of judges who had predetermined his guilt?\n\nWould it have been an improvement of the plan, to have united\nthe Supreme Court with the Senate, in the formation of the court of\nimpeachments? This union would certainly have been attended with\nseveral advantages; but would they not have been overbalanced by\nthe signal disadvantage, already stated, arising from the agency of\nthe same judges in the double prosecution to which the offender\nwould be liable? To a certain extent, the benefits of that union\nwill be obtained from making the chief justice of the Supreme Court\nthe president of the court of impeachments, as is proposed to be\ndone in the plan of the convention; while the inconveniences of an\nentire incorporation of the former into the latter will be\nsubstantially avoided. This was perhaps the prudent mean. I\nforbear to remark upon the additional pretext for clamor against the\njudiciary, which so considerable an augmentation of its authority\nwould have afforded.\n\nWould it have been desirable to have composed the court for the\ntrial of impeachments, of persons wholly distinct from the other\ndepartments of the government? There are weighty arguments, as well\nagainst, as in favor of, such a plan. To some minds it will not\nappear a trivial objection, that it could tend to increase the\ncomplexity of the political machine, and to add a new spring to the\ngovernment, the utility of which would at best be questionable. But\nan objection which will not be thought by any unworthy of attention,\nis this: a court formed upon such a plan, would either be attended\nwith a heavy expense, or might in practice be subject to a variety\nof casualties and inconveniences. It must either consist of\npermanent officers, stationary at the seat of government, and of\ncourse entitled to fixed and regular stipends, or of certain\nofficers of the State governments to be called upon whenever an\nimpeachment was actually depending. It will not be easy to imagine\nany third mode materially different, which could rationally be\nproposed. 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\nthem. The second will be espoused with caution by those who will\nseriously consider the difficulty of collecting men dispersed over\nthe whole Union; the injury to the innocent, from the\nprocrastinated determination of the charges which might be brought\nagainst them; the advantage to the guilty, from the opportunities\nwhich delay would afford to intrigue and corruption; and in some\ncases the detriment to the State, from the prolonged inaction of men\nwhose firm and faithful execution of their duty might have exposed\nthem to the persecution of an intemperate or designing majority in\nthe House of Representatives. Though this latter supposition may\nseem harsh, and might not be likely often to be verified, yet it\nought not to be forgotten that the demon of faction will, at certain\nseasons, extend his sceptre over all numerous bodies of men.\n\nBut though one or the other of the substitutes which have been\nexamined, or some other that might be devised, should be thought\npreferable to the plan in this respect, reported by the convention,\nit will not follow that the Constitution ought for this reason to be\nrejected. If mankind were to resolve to agree in no institution of\ngovernment, until every part of it had been adjusted to the most\nexact standard of perfection, society would soon become a general\nscene of anarchy, and the world a desert. Where is the standard of\nperfection to be found? Who will undertake to unite the discordant\nopinions of a whole community, in the same judgment of it; and to\nprevail upon one conceited projector to renounce his INFALLIBLE\ncriterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR?\nTo answer the purpose of the adversaries of the Constitution, they\nought to prove, not merely that particular provisions in it are not\nthe best which might have been imagined, but that the plan upon the\nwhole is bad and pernicious.\n\nPUBLIUS.\n", "date": "Friday, March 7, 1788", "title": "The Powers of the Senate Continued", "paper_id": 65, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nA REVIEW of the principal objections that have appeared against\nthe proposed court for the trial of impeachments, will not\nimprobably eradicate the remains of any unfavorable impressions\nwhich may still exist 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 wellestablished maxim which requires\na separation between the different departments of power. The true\nmeaning of this maxim has been discussed and ascertained in another\nplace, and has been shown to be entirely compatible with a partial\nintermixture of those departments for special purposes, preserving\nthem, in the main, distinct and unconnected. This partial\nintermixture is even, in some cases, not only proper but necessary\nto the mutual defense of the several members of the government\nagainst each other. An absolute or qualified negative in the\nexecutive upon the acts of the legislative body, is admitted, by the\nablest adepts in political science, to be an indispensable barrier\nagainst the encroachments of the latter upon the former. And it\nmay, perhaps, with no less reason be contended, that the powers\nrelating to impeachments are, as before intimated, an essential\ncheck in the hands of that body upon the encroachments of the\nexecutive. The division of them between the two branches of the\nlegislature, assigning to one the right of accusing, to the other\nthe right of judging, avoids the inconvenience of making the same\npersons both accusers and judges; and guards against the danger of\npersecution, from the prevalency of a factious spirit in either of\nthose branches. As the concurrence of two thirds of the Senate will\nbe requisite to a condemnation, the security to innocence, from this\nadditional circumstance, will be as complete as itself can desire.\n\nIt is curious to observe, with what vehemence this part of the\nplan is assailed, on the principle here taken notice of, by men who\nprofess to admire, without exception, the constitution of this\nState; while that constitution makes the Senate, together with the\nchancellor and judges of the Supreme Court, not only a court of\nimpeachments, but the highest judicatory in the State, in all\ncauses, civil and criminal. The proportion, in point of numbers, of\nthe chancellor and judges to the senators, is so inconsiderable,\nthat the judiciary authority of New York, in the last resort, may,\nwith truth, be said to reside in its Senate. If the plan of the\nconvention be, in this respect, chargeable with a departure from the\ncelebrated maxim which has been so often mentioned, and seems to be\nso little understood, how much more culpable must be the\nconstitution of New York?1\n\nA SECOND objection to the Senate, as a court of impeachments,\nis, that it contributes to an undue accumulation of power in that\nbody, tending to give to the government a countenance too\naristocratic. The Senate, it is observed, is to have concurrent\nauthority with the Executive in the formation of treaties and in the\nappointment to offices: if, say the objectors, to these\nprerogatives is added that of deciding in all cases of impeachment,\nit will give a decided predominancy to senatorial influence. To an\nobjection so little precise in itself, it is not easy to find a very\nprecise answer. Where is the measure or criterion to which we can\nappeal, for determining what will give the Senate too much, too\nlittle, or barely the proper degree of influence? Will it not be\nmore safe, as well as more simple, to dismiss such vague and\nuncertain calculations, to examine each power by itself, and to\ndecide, on general principles, where it may be deposited with most\nadvantage and least inconvenience?\n\nIf we take this course, it will lead to a more intelligible, if\nnot to a more certain result. The disposition of the power of\nmaking treaties, which has obtained in the plan of the convention,\nwill, then, if I mistake not, appear to be fully justified by the\nconsiderations stated in a former number, and by others which will\noccur under the next head of our inquiries. The expediency of the\njunction of the Senate with the Executive, in the power of\nappointing to offices, will, I trust, be placed in a light not less\nsatisfactory, in the disquisitions under the same head. And I\nflatter myself the observations in my last paper must have gone no\ninconsiderable way towards proving that it was not easy, if\npracticable, to find a more fit receptacle for the power of\ndetermining impeachments, than that which has been chosen. If this\nbe truly the case, the hypothetical dread of the too great weight of\nthe Senate ought to be discarded from our reasonings.\n\nBut this hypothesis, such as it is, has already been refuted in\nthe remarks applied to the duration in office prescribed for the\nsenators. It was by them shown, as well on the credit of historical\nexamples, as from the reason of the thing, that the most POPULAR\nbranch of every government, partaking of the republican genius, by\nbeing generally the favorite of the people, will be as generally a\nfull match, if not an overmatch, for every other member of the\nGovernment.\n\nBut independent of this most active and operative principle, to\nsecure the equilibrium of the national House of Representatives, the\nplan of the convention has provided in its favor several important\ncounterpoises to the additional authorities to be conferred upon the\nSenate. The exclusive privilege of originating money bills will\nbelong to the House of Representatives. The same house will possess\nthe sole right of instituting impeachments: is not this a complete\ncounterbalance to that of determining them? The same house will be\nthe umpire in all elections of the President, which do not unite the\nsuffrages of a majority of the whole number of electors; a case\nwhich it cannot be doubted will sometimes, if not frequently, happen.\nThe constant possibility of the thing must be a fruitful source of\ninfluence to that body. The more it is contemplated, the more\nimportant will appear this ultimate though contingent power, of\ndeciding the competitions of the most illustrious citizens of the\nUnion, for the first office in it. It would not perhaps be rash to\npredict, that as a mean of influence it will be found to outweigh\nall the peculiar attributes of the Senate.\n\nA THIRD objection to the Senate as a court of impeachments, is\ndrawn from the agency they are to have in the appointments to office.\nIt is imagined that they would be too indulgent judges of the\nconduct of men, in whose official creation they had participated.\nThe principle of this objection would condemn a practice, which is\nto be seen in all the State governments, if not in all the\ngovernments with which we are acquainted: I mean that of rendering\nthose who hold offices during pleasure, dependent on the pleasure of\nthose who appoint them. With equal plausibility might it be alleged\nin this case, that the favoritism of the latter would always be an\nasylum for the misbehavior of the former. But that practice, in\ncontradiction to this principle, proceeds upon the presumption, that\nthe responsibility of those who appoint, for the fitness and\ncompetency of the persons on whom they bestow their choice, and the\ninterest 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\nhave proved themselves unworthy of the confidence reposed in them.\nThough facts may not always correspond with this presumption, yet\nif it be, in the main, just, it must destroy the supposition that\nthe Senate, who will merely sanction the choice of the Executive,\nshould feel a bias, towards the objects of that choice, strong\nenough to blind them to the evidences of guilt so extraordinary, as\nto have induced the representatives of the nation to become its\naccusers.\n\nIf any further arguments were necessary to evince the\nimprobability of such a bias, it might be found in the nature of the\nagency of the Senate in the business of appointments.\n\nIt will be the office of the President to NOMINATE, and, with\nthe advice and consent of the Senate, to APPOINT. There will, of\ncourse, be no exertion of CHOICE on the part of the Senate. They\nmay defeat one choice of the Executive, and oblige him to make\nanother; but they cannot themselves CHOOSE, they can only ratify or\nreject the choice of the President. They might even entertain a\npreference to some other person, at the very moment they were\nassenting to the one proposed, because there might be no positive\nground of opposition to him; and they could not be sure, if they\nwithheld their assent, that the subsequent nomination would fall\nupon their own favorite, or upon any other person in their\nestimation more meritorious than the one rejected. Thus it could\nhardly happen, that the majority of the Senate would feel any other\ncomplacency towards the object of an appointment than such as the\nappearances of merit might inspire, and the proofs of the want of it\ndestroy.\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\nthe senators their own judges, in every case of a corrupt or\nperfidious execution of that trust. After having combined with the\nExecutive in betraying the interests of the nation in a ruinous\ntreaty, what prospect, it is asked, would there be of their being\nmade to suffer the punishment they would deserve, when they were\nthemselves to decide upon the accusation brought against them for\nthe treachery of which they have been guilty?\n\nThis objection has been circulated with more earnestness and\nwith greater show of reason than any other which has appeared\nagainst this part of the plan; and yet I am deceived if it does not\nrest upon an erroneous foundation.\n\nThe security essentially intended by the Constitution against\ncorruption and treachery in the formation of treaties, is to be\nsought for in the numbers and characters of those who are to make\nthem. The JOINT AGENCY of the Chief Magistrate of the Union, and of\ntwo thirds of the members of a body selected by the collective\nwisdom of the legislatures of the several States, is designed to be\nthe pledge for the fidelity of the national councils in this\nparticular. The convention might with propriety have meditated the\npunishment of the Executive, for a deviation from the instructions\nof the Senate, or a want of integrity in the conduct of the\nnegotiations committed to him; they might also have had in view the\npunishment of a few leading individuals in the Senate, who should\nhave prostituted their influence in that body as the mercenary\ninstruments of foreign corruption: but they could not, with more or\nwith 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 any\ngovernment. How, in fact, could a majority in the House of\nRepresentatives impeach themselves? Not better, it is evident, than\ntwo thirds of the Senate might try themselves. And yet what reason\nis there, that a majority of the House of Representatives,\nsacrificing the interests of the society by an unjust and tyrannical\nact of legislation, should escape with impunity, more than two\nthirds of the Senate, sacrificing the same interests in an injurious\ntreaty with a foreign power? The truth is, that in all such cases\nit is essential to the freedom and to the necessary independence of\nthe deliberations of the body, that the members of it should be\nexempt from punishment for acts done in a collective capacity; and\nthe security to the society must depend on the care which is taken\nto confide the trust to proper hands, to make it their interest to\nexecute it with fidelity, and to make it as difficult as possible\nfor them to combine in any interest opposite to that of the public\ngood.\n\nSo far as might concern the misbehavior of the Executive in\nperverting the instructions or contravening the views of the Senate,\nwe need not be apprehensive of the want of a disposition in that\nbody to punish the abuse of their confidence or to vindicate their\nown authority. We may thus far count upon their pride, if not upon\ntheir virtue. And so far even as might concern the corruption of\nleading members, by whose arts and influence the majority may have\nbeen inveigled into measures odious to the community, if the proofs\nof that corruption should be satisfactory, the usual propensity of\nhuman nature will warrant us in concluding that there would be\ncommonly no defect of inclination in the body to divert the public\nresentment from themselves by a ready sacrifice of the authors of\ntheir 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,\nPennsylvanis, and South Carolina, one branch of the legislature is\nthe court for the trial of impeachments.\n", "date": "Tuesday, March 11, 1788", "title": "Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered", "paper_id": 66, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE constitution of the executive department of the proposed\ngovernment, claims next our attention.\n\nThere is hardly any part of the system which could have been\nattended with greater difficulty in the arrangement of it than this;\nand there is, perhaps, none which has been inveighed against with\nless candor or criticised with less judgment.\n\nHere the writers against the Constitution seem to have taken\npains to signalize their talent of misrepresentation. Calculating\nupon the aversion of the people to monarchy, they have endeavored to\nenlist all their jealousies and apprehensions in opposition to the\nintended President of the United States; not merely as the embryo,\nbut as the full-grown progeny, of that detested parent. To\nestablish the pretended affinity, they have not scrupled to draw\nresources even from the regions of fiction. The authorities of a\nmagistrate, in few instances greater, in some instances less, than\nthose of a governor of New York, have been magnified into more than\nroyal prerogatives. He has been decorated with attributes superior\nin dignity and splendor to those of a king of Great Britain. He has\nbeen shown to us with the diadem sparkling on his brow and the\nimperial purple flowing in his train. He has been seated on a\nthrone surrounded with minions and mistresses, giving audience to\nthe envoys of foreign potentates, in all the supercilious pomp of\nmajesty. The images of Asiatic despotism and voluptuousness have\nscarcely been wanting to crown the exaggerated scene. We have been\ntaught to tremble at the terrific visages of murdering janizaries,\nand to blush at the unveiled mysteries of a future seraglio.\n\nAttempts so extravagant as these to disfigure or, it might\nrather be said, to metamorphose the object, render it necessary to\ntake an accurate view of its real nature and form: in order as well\nto ascertain its true aspect and genuine appearance, as to unmask\nthe disingenuity and expose the fallacy of the counterfeit\nresemblances which have been so insidiously, as well as\nindustriously, propagated.\n\nIn the execution of this task, there is no man who would not\nfind it an arduous effort either to behold with moderation, or to\ntreat with seriousness, the devices, not less weak than wicked,\nwhich have been contrived to pervert the public opinion in relation\nto the subject. They so far exceed the usual though unjustifiable\nlicenses of party artifice, that even in a disposition the most\ncandid and tolerant, they must force the sentiments which favor an\nindulgent construction of the conduct of political adversaries to\ngive place to a voluntary and unreserved indignation. It is\nimpossible not to bestow the imputation of deliberate imposture and\ndeception upon the gross pretense of a similitude between a king of\nGreat Britain and a magistrate of the character marked out for that\nof the President of the United States. It is still more impossible\nto withhold that imputation from the rash and barefaced expedients\nwhich have been employed to give success to the attempted imposition.\n\nIn one instance, which I cite as a sample of the general spirit,\nthe temerity has proceeded so far as to ascribe to the President of\nthe United States a power which by the instrument reported is\nEXPRESSLY allotted to the Executives of the individual States. I\nmean the power of filling casual vacancies in the Senate.\n\nThis bold experiment upon the discernment of his countrymen has\nbeen hazarded by a writer who (whatever may be his real merit) has\nhad no inconsiderable share in the applauses of his party [1]; and\nwho, upon this false and unfounded suggestion, has built a series of\nobservations equally false and unfounded. Let him now be confronted\nwith the evidence of the fact, and let him, if he be able, justify\nor extenuate the shameful outrage he has offered to the dictates of\ntruth and to the rules of fair dealing.\n\nThe second clause of the second section of the second article\nempowers the President of the United States \"to nominate, and by\nand with the advice and consent of the Senate, to appoint\nambassadors, other public ministers and consuls, judges of the\nSupreme Court, and all other OFFICERS of United States whose\nappointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and\nWHICH SHALL BE ESTABLISHED BY LAW.\" Immediately after this clause\nfollows another in these words: \"The President shall have power to\nfill up ?? VACANCIES that may happen DURING THE RECESS OF THE\nSENATE, by granting commissions which shall EXPIRE AT THE END OF\nTHEIR NEXT SESSION.\" It is from this last provision that the\npretended power of the President to fill vacancies in the Senate has\nbeen deduced. A slight attention to the connection of the clauses,\nand to the obvious meaning of the terms, will satisfy us that the\ndeduction is not even colorable.\n\nThe first of these two clauses, it is clear, only provides a\nmode for appointing such officers, \"whose appointments are NOT\nOTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE\nESTABLISHED BY LAW\"; of course it cannot extend to the\nappointments of senators, whose appointments are OTHERWISE PROVIDED\nFOR in the Constitution [2], and who are ESTABLISHED BY THE\nCONSTITUTION, and will not require a future establishment by law.\nThis position will hardly be contested.\n\nThe last of these two clauses, it is equally clear, cannot be\nunderstood to comprehend the power of filling vacancies in the\nSenate, for the following reasons:  First. The relation in\nwhich that clause stands to the other, which declares the general\nmode of appointing officers of the United States, denotes it to be\nnothing more than a supplement to the other, for the purpose of\nestablishing an auxiliary method of appointment, in cases to which\nthe general method was inadequate. The ordinary power of\nappointment is confined to the President and Senate JOINTLY, and can\ntherefore only be exercised during the session of the Senate; but\nas it would have been improper to oblige this body to be continually\nin session for the appointment of officers and as vacancies might\nhappen IN THEIR RECESS, which it might be necessary for the public\nservice to fill without delay, the succeeding clause is evidently\nintended to authorize the President, SINGLY, to make temporary\nappointments \"during the recess of the Senate, by granting\ncommissions which shall expire at the end of their next session.\"\nSecondly. If this clause is to be considered as supplementary\nto the one which precedes, the VACANCIES of which it speaks must be\nconstrued to relate to the \"officers\" described in the preceding\none; and this, we have seen, excludes from its description the\nmembers of the Senate. Thirdly. The time within which the\npower is to operate, \"during the recess of the Senate,\" and the\nduration of the appointments, \"to the end of the next session\" of\nthat 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\nthe State legislatures, who are to make the permanent appointments,\nand not to the recess of the national Senate, who are to have no\nconcern in those appointments; and would have extended the duration\nin office of the temporary senators to the next session of the\nlegislature of the State, in whose representation the vacancies had\nhappened, instead of making it to expire at the end of the ensuing\nsession of the national Senate. The circumstances of the body\nauthorized to make the permanent appointments would, of course, have\ngoverned the modification of a power which related to the temporary\nappointments; and as the national Senate is the body, whose\nsituation is alone contemplated in the clause upon which the\nsuggestion under examination has been founded, the vacancies to\nwhich it alludes can only be deemed to respect those officers in\nwhose appointment that body has a concurrent agency with the\nPresident. But lastly, the first and second clauses of the\nthird section of the first article, not only obviate all possibility\nof doubt, but destroy the pretext of misconception. The former\nprovides, that \"the Senate of the United States shall be composed\nof two Senators from each State, chosen BY THE LEGISLATURE THEREOF\nfor six years\"; and the latter directs, that, \"if vacancies in\nthat body should happen by resignation or otherwise, DURING THE\nRECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may\nmake temporary appointments until the NEXT MEETING OF THE\nLEGISLATURE, which shall then fill such vacancies.\" Here is an\nexpress power given, in clear and unambiguous terms, to the State\nExecutives, to fill casual vacancies in the Senate, by temporary\nappointments; which not only invalidates the supposition, that the\nclause before considered could have been intended to confer that\npower upon the President of the United States, but proves that this\nsupposition, destitute as it is even of the merit of plausibility,\nmust have originated in an intention to deceive the people, too\npalpable to be obscured by sophistry, too atrocious to be palliated\nby hypocrisy.\n\nI have taken the pains to select this instance of\nmisrepresentation, and to place it in a clear and strong light, as\nan unequivocal proof of the unwarrantable arts which are practiced\nto prevent a fair and impartial judgment of the real merits of the\nConstitution submitted to the consideration of the people. Nor have\nI scrupled, in so flagrant a case, to allow myself a severity of\nanimadversion little congenial with the general spirit of these\npapers. I hesitate not to submit it to the decision of any candid\nand honest adversary of the proposed government, whether language\ncan furnish epithets of too much asperity, for so shameless and so\nprostitute an attempt to impose on the citizens of America.\n\nPUBLIUS.\n\n1. See CATO, No. V.\n\n2. Article I, section 3, clause I.\n", "date": "Tuesday, March 11, 1788", "title": "The Executive Department", "paper_id": 67, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE mode of appointment of the Chief Magistrate of the United\nStates is almost the only part of the system, of any consequence,\nwhich has escaped without severe censure, or which has received the\nslightest mark of approbation from its opponents. The most\nplausible of these, who has appeared in print, has even deigned to\nadmit that the election of the President is pretty well\nguarded. [1] I venture somewhat further, and hesitate not to\naffirm, that if the manner of it be not perfect, it is at least\nexcellent. It unites in an eminent degree all the advantages, the\nunion of which was to be wished for.\n\nIt was desirable that the sense of the people should operate in\nthe choice of the person to whom so important a trust was to be\nconfided. This end will be answered by committing the right of\nmaking it, not to any preestablished body, but to men chosen by the\npeople for the special purpose, and at the particular conjuncture.\n\nIt was equally desirable, that the immediate election should be\nmade by men most capable of analyzing the qualities adapted to the\nstation, and acting under circumstances favorable to deliberation,\nand to a judicious combination of all the reasons and inducements\nwhich were proper to govern their choice. A small number of\npersons, selected by their fellow-citizens from the general mass,\nwill be most likely to possess the information and discernment\nrequisite to such complicated investigations.\n\nIt was also peculiarly desirable to afford as little opportunity\nas possible to tumult and disorder. This evil was not least to be\ndreaded in the election of a magistrate, who was to have so\nimportant an agency in the administration of the government as the\nPresident of the United States. But the precautions which have been\nso happily concerted in the system under consideration, promise an\neffectual security against this mischief. The choice of SEVERAL, to\nform an intermediate body of electors, will be much less apt to\nconvulse the community with any extraordinary or violent movements,\nthan the choice of ONE who was himself to be the final object of the\npublic wishes. And as the electors, chosen in each State, are to\nassemble and vote in the State in which they are chosen, this\ndetached and divided situation will expose them much less to heats\nand ferments, which might be communicated from them to the people,\nthan if they were all to be convened at one time, in one place.\n\nNothing was more to be desired than that every practicable\nobstacle should be opposed to cabal, intrigue, and corruption.\nThese most deadly adversaries of republican government might\nnaturally have been expected to make their approaches from more than\none quarter, but chiefly from the desire in foreign powers to gain\nan improper ascendant in our councils. How could they better\ngratify this, than by raising a creature of their own to the chief\nmagistracy of the Union? But the convention have guarded against\nall danger of this sort, with the most provident and judicious\nattention. They have not made the appointment of the President to\ndepend on any preexisting bodies of men, who might be tampered with\nbeforehand to prostitute their votes; but they have referred it in\nthe first instance to an immediate act of the people of America, to\nbe exerted in the choice of persons for the temporary and sole\npurpose 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\nsenator, representative, or other person holding a place of trust or\nprofit under the United States, can be of the numbers of the\nelectors. Thus without corrupting the body of the people, the\nimmediate agents in the election will at least enter upon the task\nfree from any sinister bias. Their transient existence, and their\ndetached situation, already taken notice of, afford a satisfactory\nprospect of their continuing so, to the conclusion of it. The\nbusiness of corruption, when it is to embrace so considerable a\nnumber of men, requires time as well as means. Nor would it be\nfound easy suddenly to embark them, dispersed as they would be over\nthirteen States, in any combinations founded upon motives, which\nthough they could not properly be denominated corrupt, might yet be\nof a nature to mislead them from their duty.\n\nAnother and no less important desideratum was, that the\nExecutive should be independent for his continuance in office on all\nbut the people themselves. He might otherwise be tempted to\nsacrifice his duty to his complaisance for those whose favor was\nnecessary to the duration of his official consequence. This\nadvantage will also be secured, by making his re-election to depend\non a special body of representatives, deputed by the society for the\nsingle purpose of making the important choice.\n\nAll these advantages will happily combine in the plan devised by\nthe convention; which is, that the people of each State shall\nchoose a number of persons as electors, equal to the number of\nsenators and representatives of such State in the national\ngovernment, who shall assemble within the State, and vote for some\nfit person as President. Their votes, thus given, are to be\ntransmitted to the seat of the national government, and the person\nwho may happen to have a majority of the whole number of votes will\nbe the President. But as a majority of the votes might not always\nhappen to centre in one man, and as it might be unsafe to permit\nless than a majority to be conclusive, it is provided that, in such\na contingency, the House of Representatives shall select out of the\ncandidates who shall have the five highest number of votes, the man\nwho in their opinion may be best qualified for the office.\n\nThe process of election affords a moral certainty, that the\noffice of President will never fall to the lot of any man who is not\nin an eminent degree endowed with the requisite qualifications.\nTalents for low intrigue, and the little arts of popularity, may\nalone suffice to elevate a man to the first honors in a single\nState; but it will require other talents, and a different kind of\nmerit, to establish him in the esteem and confidence of the whole\nUnion, or of so considerable a portion of it as would be necessary\nto make him a successful candidate for the distinguished office of\nPresident of the United States. It will not be too strong to say,\nthat there will be a constant probability of seeing the station\nfilled by characters pre-eminent for ability and virtue. And this\nwill be thought no inconsiderable recommendation of the\nConstitution, by those who are able to estimate the share which the\nexecutive in every government must necessarily have in its good or\nill administration. Though we cannot acquiesce in the political\nheresy of the poet who says:  \"For forms of government let fools\ncontest That which is best  administered is best,\"\nyet we may safely pronounce, that the true test of a good\ngovernment 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\nrespect to the former, what is to be done by the House of\nRepresentatives, in respect to the latter.\n\nThe appointment of an extraordinary person, as Vice-President,\nhas been objected to as superfluous, if not mischievous. It has\nbeen alleged, that it would have been preferable to have authorized\nthe Senate to elect out of their own body an officer answering that\ndescription. But two considerations seem to justify the ideas of\nthe convention in this respect. One is, that to secure at all times\nthe possibility of a definite resolution of the body, it is\nnecessary that the President should have only a casting vote. And\nto take the senator of any State from his seat as senator, to place\nhim in that of President of the Senate, would be to exchange, in\nregard to the State from which he came, a constant for a contingent\nvote. The other consideration is, that as the Vice-President may\noccasionally become a substitute for the President, in the supreme\nexecutive magistracy, all the reasons which recommend the mode of\nelection prescribed for the one, apply with great if not with equal\nforce to the manner of appointing the other. It is remarkable that\nin this, as in most other instances, the objection which is made\nwould 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,\nin casualties similar to those which would authorize the\nVice-President to exercise the authorities and discharge the duties\nof the President.\n\nPUBLIUS.\n\n1. Vide FEDERAL FARMER.\n", "date": "Friday, March 14, 1788", "title": "The Mode of Electing the President", "paper_id": 68, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nI PROCEED now to trace the real characters of the proposed\nExecutive, as they are marked out in the plan of the convention.\nThis will serve to place in a strong light the unfairness of the\nrepresentations which have been made in regard to it.\n\nThe first thing which strikes our attention is, that the\nexecutive authority, with few exceptions, is to be vested in a\nsingle magistrate. This will scarcely, however, be considered as a\npoint upon which any comparison can be grounded; for if, in this\nparticular, there be a resemblance to the king of Great Britain,\nthere is not less a resemblance to the Grand Seignior, to the khan\nof Tartary, to the Man of the Seven Mountains, or to the governor of\nNew 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\nan HEREDITARY monarch, possessing the crown as a patrimony\ndescendible to his heirs forever; but there is a close analogy\nbetween HIM and a governor of New York, who is elected for THREE\nyears, and is re-eligible without limitation or intermission. If we\nconsider how much less time would be requisite for establishing a\ndangerous influence in a single State, than for establishing a like\ninfluence throughout the United States, we must conclude that a\nduration of FOUR years for the Chief Magistrate of the Union is a\ndegree of permanency far less to be dreaded in that office, than a\nduration of THREE years for a corresponding office in a single State.\n\nThe President of the United States would be liable to be\nimpeached, tried, and, upon conviction of treason, bribery, or other\nhigh crimes or misdemeanors, removed from office; and would\nafterwards be liable to prosecution and punishment in the ordinary\ncourse of law. The person of the king of Great Britain is sacred\nand inviolable; there is no constitutional tribunal to which he is\namenable; no punishment to which he can be subjected without\ninvolving the crisis of a national revolution. In this delicate and\nimportant circumstance of personal responsibility, the President of\nConfederated America would stand upon no better ground than a\ngovernor of New York, and upon worse ground than the governors of\nMaryland and Delaware.\n\nThe President of the United States is to have power to return a\nbill, which shall have passed the two branches of the legislature,\nfor reconsideration; and the bill so returned is to become a law,\nif, upon that reconsideration, it be approved by two thirds of both\nhouses. The king of Great Britain, on his part, has an absolute\nnegative upon the acts of the two houses of Parliament. The disuse\nof that power for a considerable time past does not affect the\nreality of its existence; and is to be ascribed wholly to the\ncrown's having found the means of substituting influence to\nauthority, or the art of gaining a majority in one or the other of\nthe two houses, to the necessity of exerting a prerogative which\ncould seldom be exerted without hazarding some degree of national\nagitation. The qualified negative of the President differs widely\nfrom 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\nrespect the power of the President would exceed that of the governor\nof New York, because the former would possess, singly, what the\nlatter shares with the chancellor and judges; but it would be\nprecisely the same with that of the governor of Massachusetts, whose\nconstitution, as to this article, seems to have been the original\nfrom which the convention have copied.\n\nThe President is to be the \"commander-in-chief of the army and\nnavy of the United States, and of the militia of the several States,\nwhen called into the actual service of the United States. He is to\nhave power to grant reprieves and pardons for offenses against the\nUnited States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the\nconsideration of Congress such measures as he shall judge necessary\nand expedient; to convene, on extraordinary occasions, both houses\nof the legislature, or either of them, and, in case of disagreement\nbetween them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn\nthem to such time as he shall think proper; to take care that the\nlaws be faithfully executed; and to commission all officers of the\nUnited States.\" In most of these particulars, the power of the\nPresident will resemble equally that of the king of Great Britain\nand of the governor of New York. The most material points of\ndifference are these:  First. The President will have only the\noccasional command of such part of the militia of the nation as by\nlegislative provision may be called into the actual service of the\nUnion. The king of Great Britain and the governor of New York have\nat all times the entire command of all the militia within their\nseveral jurisdictions. In this article, therefore, the power of the\nPresident would be inferior to that of either the monarch or the\ngovernor. Secondly. The President is to be commander-in-chief\nof the army and navy of the United States. In this respect his\nauthority would be nominally the same with that of the king of Great\nBritain, but in substance much inferior to it. It would amount to\nnothing more than the supreme command and direction of the military\nand naval forces, as first General and admiral of the Confederacy;\nwhile that of the British king extends to the DECLARING of war and\nto the RAISING and REGULATING of fleets and armies, all which, by\nthe Constitution under consideration, would appertain to the\nlegislature. [1] The governor of New York, on the other hand, is\nby the constitution of the State vested only with the command of its\nmilitia and navy. But the constitutions of several of the States\nexpressly declare their governors to be commanders-in-chief, as well\nof the army as navy; and it may well be a question, whether those\nof New Hampshire and Massachusetts, in particular, do not, in this\ninstance, confer larger powers upon their respective governors, than\ncould be claimed by a President of the United States. Thirdly.\nThe power of the President, in respect to pardons, would extend to\nall cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York\nmay pardon in all cases, even in those of impeachment, except for\ntreason and murder. Is not the power of the governor, in this\narticle, on a calculation of political consequences, greater than\nthat of the President? All conspiracies and plots against the\ngovernment, which have not been matured into actual treason, may be\nscreened from punishment of every kind, by the interposition of the\nprerogative of pardoning. If a governor of New York, therefore,\nshould be at the head of any such conspiracy, until the design had\nbeen ripened into actual hostility he could insure his accomplices\nand adherents an entire impunity. A President of the Union, on the\nother hand, though he may even pardon treason, when prosecuted in\nthe ordinary course of law, could shelter no offender, in any\ndegree, from the effects of impeachment and conviction. Would not\nthe prospect of a total indemnity for all the preliminary steps be a\ngreater temptation to undertake and persevere in an enterprise\nagainst the public liberty, than the mere prospect of an exemption\nfrom death and confiscation, if the final execution of the design,\nupon an actual appeal to arms, should miscarry? Would this last\nexpectation have any influence at all, when the probability was\ncomputed, that the person who was to afford that exemption might\nhimself be involved in the consequences of the measure, and might be\nincapacitated by his agency in it from affording the desired\nimpunity? The better to judge of this matter, it will be necessary\nto recollect, that, by the proposed Constitution, the offense of\ntreason is limited \"to levying war upon the United States, and\nadhering to their enemies, giving them aid and comfort\"; and that\nby the laws of New York it is confined within similar bounds.\nFourthly. 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.\nThe governor of New York may also prorogue the legislature of this\nState for a limited time; a power which, in certain situations, may\nbe employed to very important purposes.\n\nThe President is to have power, with the advice and consent of\nthe Senate, 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\nevery other description. It has been insinuated, that his authority\nin this respect is not conclusive, and that his conventions with\nforeign powers are subject to the revision, and stand in need of the\nratification, of Parliament. But I believe this doctrine was never\nheard of, until it was broached upon the present occasion. Every\njurist [2] of that kingdom, and every other man acquainted with its\nConstitution, knows, as an established fact, that the prerogative of\nmaking treaties exists in the crown in its utmost plentitude; and\nthat the compacts entered into by the royal authority have the most\ncomplete legal validity and perfection, independent of any other\nsanction. The Parliament, it is true, is sometimes seen employing\nitself in altering the existing laws to conform them to the\nstipulations in a new treaty; and this may have possibly given\nbirth to the imagination, that its co-operation was necessary to the\nobligatory efficacy of the treaty. But this parliamentary\ninterposition proceeds from a different cause: from the necessity\nof adjusting a most artificial and intricate system of revenue and\ncommercial laws, to the changes made in them by the operation of the\ntreaty; and of adapting new provisions and precautions to the new\nstate of things, to keep the machine from running into disorder. In\nthis respect, therefore, there is no comparison between the intended\npower of the President and the actual power of the British sovereign.\nThe one can perform alone what the other can do only with the\nconcurrence of a branch of the legislature. It must be admitted,\nthat, in this instance, the power of the federal Executive would\nexceed that of any State Executive. But this arises naturally from\nthe sovereign power which relates to treaties. If the Confederacy\nwere to be dissolved, it would become a question, whether the\nExecutives of the several States were not solely invested with that\ndelicate and important prerogative.\n\nThe President is also to be authorized to receive ambassadors\nand other public ministers. This, though it has been a rich theme\nof declamation, is more a matter of dignity than of authority. It\nis a circumstance which will be without consequence in the\nadministration of the government; and it was far more convenient\nthat it should be arranged in this manner, than that there should be\na necessity of convening the legislature, or one of its branches,\nupon every arrival of a foreign minister, though it were merely to\ntake the place of a departed predecessor.\n\nThe President is to nominate, and, WITH THE ADVICE AND CONSENT\nOF THE SENATE, to appoint ambassadors and other public ministers,\njudges of the Supreme Court, and in general all officers of the\nUnited States established by law, and whose appointments are not\notherwise provided for by the Constitution. The king of Great\nBritain is emphatically and truly styled the fountain of honor. He\nnot only appoints to all offices, but can create offices. He can\nconfer titles of nobility at pleasure; and has the disposal of an\nimmense number of church preferments. There is evidently a great\ninferiority in the power of the President, in this particular, to\nthat of the British king; nor is it equal to that of the governor\nof New York, if we are to interpret the meaning of the constitution\nof the State by the practice which has obtained under it. The power\nof appointment is with us lodged in a council, composed of the\ngovernor and four members of the Senate, chosen by the Assembly.\nThe governor CLAIMS, and has frequently EXERCISED, the right of\nnomination, and is ENTITLED to a casting vote in the appointment.\nIf he really has the right of nominating, his authority is in this\nrespect equal to that of the President, and exceeds it in the\narticle of the casting vote. In the national government, if the\nSenate should be divided, no appointment could be made; in the\ngovernment of New York, if the council should be divided, the\ngovernor can turn the scale, and confirm his own nomination. [3]\nIf we compare the publicity which must necessarily attend the mode\nof appointment by the President and an entire branch of the national\nlegislature, 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\ntime consider how much more easy it must be to influence the small\nnumber of which a council of appointment consists, than the\nconsiderable number of which the national Senate would consist, we\ncannot hesitate to pronounce that the power of the chief magistrate\nof this State, in the disposition of offices, must, in practice, be\ngreatly superior to that of the Chief Magistrate of the Union.\n\nHence it appears that, except as to the concurrent authority of\nthe President in the article of treaties, it would be difficult to\ndetermine whether that magistrate would, in the aggregate, possess\nmore or less power than the Governor of New York. And it appears\nyet more unequivocally, that there is no pretense for the parallel\nwhich has been attempted between him and the king of Great Britain.\nBut to render the contrast in this respect still more striking, it\nmay be of use to throw the principal circumstances of dissimilitude\ninto a closer group.\n\nThe President of the United States would be an officer elected\nby the people for FOUR years; the king of Great Britain is a\nperpetual and HEREDITARY prince. The one would be amenable to\npersonal punishment and disgrace; the person of the other is sacred\nand inviolable. The one would have a QUALIFIED negative upon the\nacts of the legislative body; the other has an ABSOLUTE negative.\nThe one would have a right to command the military and naval forces\nof the nation; the other, in addition to this right, possesses that\nof DECLARING war, and of RAISING and REGULATING fleets and armies by\nhis own authority. The one would have a concurrent power with a\nbranch of the legislature in the formation of treaties; the other\nis the SOLE POSSESSOR of the power of making treaties. The one\nwould have a like concurrent authority in appointing to offices;\nthe other is the sole author of all appointments. The one can\nconfer no privileges whatever; the other can make denizens of\naliens, 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\nlay embargoes for a limited time, can coin money, can authorize or\nprohibit the circulation of foreign coin. The one has no particle\nof spiritual jurisdiction; the other is the supreme head and\ngovernor of the national church! What answer shall we give to those\nwho would persuade us that things so unlike resemble each other?\nThe same that ought to be given to those who tell us that a\ngovernment, the whole power of which would be in the hands of the\nelective and periodical servants of the people, is an aristocracy, a\nmonarchy, and a despotism.\n\nPUBLIUS.\n\n1. A writer in a Pennsylvania paper, under the signature of\nTAMONY, has asserted that the king of Great Britain owes his\nprerogative as commander-in-chief to an annual mutiny bill. The\ntruth is, on the contrary, that his prerogative, in this respect, is\nimmemorial, and was only disputed, \"contrary to all reason and\nprecedent,\" as Blackstone vol. i., page 262, expresses it, by the\nLong Parliament of Charles I. but by the statute the 13th of Charles\nII., chap. 6, it was declared to be in the king alone, for that the\nsole supreme government and command of the militia within his\nMajesty's realms and dominions, and of all forces by sea and land,\nand of all forts and places of strength, EVER WAS AND IS the\nundoubted right of his Majesty and his royal predecessors, kings and\nqueens of England, and that both or either house of Parliament\ncannot 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\nthe claim of the governor to a right of nomination well founded.\nYet it is always justifiable to reason from the practice of a\ngovernment, till its propriety has been constitutionally questioned.\nAnd independent of this claim, when we take into view the other\nconsiderations, and pursue them through all their consequences, we\nshall be inclined to draw much the same conclusion.\n", "date": "Friday, March 14, 1788", "title": "The Real Character of the Executive", "paper_id": 69, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHERE is an idea, which is not without its advocates, that a\nvigorous Executive is inconsistent with the genius of republican\ngovernment. The enlightened well-wishers to this species of\ngovernment must at least hope that the supposition is destitute of\nfoundation; since they can never admit its truth, without at the\nsame time admitting the condemnation of their own principles.\nEnergy in the Executive is a leading character in the definition of\ngood government. It is essential to the protection of the community\nagainst foreign attacks; it is not less essential to the steady\nadministration of the laws; to the protection of property against\nthose irregular and high-handed combinations which sometimes\ninterrupt the ordinary course of justice; to the security of\nliberty against the enterprises and assaults of ambition, of\nfaction, and of anarchy. Every man the least conversant in Roman\nstory, knows how often that republic was obliged to take refuge in\nthe 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,\nas against the invasions of external enemies who menaced the\nconquest and destruction of Rome.\n\nThere can be no need, however, to multiply arguments or examples\non this head. A feeble Executive implies a feeble execution of the\ngovernment. A feeble execution is but another phrase for a bad\nexecution; and a government ill executed, whatever it may be in\ntheory, must be, in practice, a bad government.\n\nTaking it for granted, therefore, that all men of sense will\nagree in the necessity of an energetic Executive, it will only\nremain to inquire, what are the ingredients which constitute this\nenergy? How far can they be combined with those other ingredients\nwhich constitute safety in the republican sense? And how far does\nthis combination characterize the plan which has been reported by\nthe convention?\n\nThe ingredients which constitute energy in the Executive are,\nfirst, unity; secondly, duration; thirdly, an adequate provision\nfor its support; fourthly, competent powers.\n\nThe ingredients which constitute safety in the repub lican sense\nare, first, a due dependence on the people, secondly, a due\nresponsibility.\n\nThose politicians and statesmen who have been the most\ncelebrated for the soundness of their principles and for the justice\nof their views, have declared in favor of a single Executive and a\nnumerous legislature. They have with great propriety, considered\nenergy as the most necessary qualification of the former, and have\nregarded this as most applicable to power in a single hand, while\nthey have, with equal propriety, considered the latter as best\nadapted to deliberation and wisdom, and best calculated to\nconciliate the confidence of the people and to secure their\nprivileges and interests.\n\nThat unity is conducive to energy will not be disputed.\nDecision, activity, secrecy, and despatch will generally\ncharacterize the proceedings of one man in a much more eminent\ndegree than the proceedings of any greater number; and in\nproportion as the number is increased, these qualities will be\ndiminished.\n\nThis unity may be destroyed in two ways: either by vesting the\npower in two or more magistrates of equal dignity and authority; or\nby vesting it ostensibly in one man, subject, in whole or in part,\nto the control and co-operation of others, in the capacity of\ncounsellors to him. Of the first, the two Consuls of Rome may serve\nas an example; of the last, we shall find examples in the\nconstitutions of several of the States. New York and New Jersey, if\nI recollect right, are the only States which have intrusted the\nexecutive authority wholly to single men. [1] Both these methods\nof destroying the unity of the Executive have their partisans; but\nthe votaries of an executive council are the most numerous. They\nare both liable, if not to equal, to similar objections, and may in\nmost lights be examined in conjunction.\n\nThe experience of other nations will afford little instruction\non this head. As far, however, as it teaches any thing, it teaches\nus not to be enamoured of plurality in the Executive. We have seen\nthat the Achaeans, on an experiment of two Praetors, were induced to\nabolish one. The Roman history records many instances of mischiefs\nto the republic from the dissensions between the Consuls, and\nbetween the military Tribunes, who were at times substituted for the\nConsuls. But it gives us no specimens of any peculiar advantages\nderived to the state from the circumstance of the plurality of those\nmagistrates. That the dissensions between them were not more\nfrequent or more fatal, is a matter of astonishment, until we advert\nto 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\na perpetual struggle with the plebeians for the preservation of\ntheir ancient authorities and dignities; the Consuls, who were\ngenerally chosen out of the former body, were commonly united by the\npersonal interest they had in the defense of the privileges of their\norder. In addition to this motive of union, after the arms of the\nrepublic had considerably expanded the bounds of its empire, it\nbecame an established custom with the Consuls to divide the\nadministration between themselves by lot one of them remaining at\nRome to govern the city and its environs, the other taking the\ncommand in the more distant provinces. This expedient must, no\ndoubt, have had great influence in preventing those collisions and\nrivalships which might otherwise have embroiled the peace of the\nrepublic.\n\nBut quitting the dim light of historical research, attaching\nourselves purely to the dictates of reason and good sense, we shall\ndiscover much greater cause to reject than to approve the idea of\nplurality in the Executive, under any modification whatever.\n\nWherever two or more persons are engaged in any common\nenterprise or pursuit, there is always danger of difference of\nopinion. If it be a public trust or office, in which they are\nclothed with equal dignity and authority, there is peculiar danger\nof personal emulation and even animosity. From either, and\nespecially from all these causes, the most bitter dissensions are\napt to spring. Whenever these happen, they lessen the\nrespectability, weaken the authority, and distract the plans and\noperation of those whom they divide. If they should unfortunately\nassail the supreme executive magistracy of a country, consisting of\na plurality of persons, they might impede or frustrate the most\nimportant measures of the government, in the most critical\nemergencies of the state. And what is still worse, they might split\nthe community into the most violent and irreconcilable factions,\nadhering differently to the different individuals who composed the\nmagistracy.\n\nMen often oppose a thing, merely because they have had no agency\nin planning it, or because it may have been planned by those whom\nthey dislike. But if they have been consulted, and have happened to\ndisapprove, opposition then becomes, in their estimation, an\nindispensable duty of self-love. They seem to think themselves\nbound in honor, and by all the motives of personal infallibility, to\ndefeat the success of what has been resolved upon contrary to their\nsentiments. Men of upright, benevolent tempers have too many\nopportunities of remarking, with horror, to what desperate lengths\nthis disposition is sometimes carried, and how often the great\ninterests of society are sacrificed to the vanity, to the conceit,\nand to the obstinacy of individuals, who have credit enough to make\ntheir passions and their caprices interesting to mankind. Perhaps\nthe question now before the public may, in its consequences, afford\nmelancholy proofs of the effects of this despicable frailty, or\nrather detestable vice, in the human character.\n\nUpon the principles of a free government, inconveniences from\nthe source just mentioned must necessarily be submitted to in the\nformation of the legislature; but it is unnecessary, and therefore\nunwise, to introduce them into the constitution of the Executive.\nIt is here too that they may be most pernicious. In the\nlegislature, promptitude of decision is oftener an evil than a\nbenefit. The differences of opinion, and the jarrings of parties in\nthat department of the government, though they may sometimes\nobstruct salutary plans, yet often promote deliberation and\ncircumspection, and serve to check excesses in the majority. When a\nresolution too is once taken, the opposition must be at an end.\nThat resolution is a law, and resistance to it punishable. But no\nfavorable circumstances palliate or atone for the disadvantages of\ndissension in the executive department. Here, they are pure and\nunmixed. There is no point at which they cease to operate. They\nserve to embarrass and weaken the execution of the plan or measure\nto which they relate, from the first step to the final conclusion of\nit. They constantly counteract those qualities in the Executive\nwhich are the most necessary ingredients in its composition, vigor\nand expedition, and this without anycounterbalancing good. In the\nconduct of war, in which the energy of the Executive is the bulwark\nof the national security, every thing would be to be apprehended\nfrom its plurality.\n\nIt must be confessed that these observations apply with\nprincipal weight to the first case supposed that is, to a plurality\nof magistrates of equal dignity and authority a scheme, the\nadvocates for which are not likely to form a numerous sect; but\nthey apply, though not with equal, yet with considerable weight to\nthe project of a council, whose concurrence is made constitutionally\nnecessary to the operations of the ostensible Executive. An artful\ncabal in that council would be able to distract and to enervate the\nwhole system of administration. If no such cabal should exist, the\nmere diversity of views and opinions would alone be sufficient to\ntincture the exercise of the executive authority with a spirit of\nhabitual feebleness and dilatoriness.\n\nBut one of the weightiest objections to a plurality in the\nExecutive, and which lies as much against the last as the first\nplan, is, that it tends to conceal faults and destroy responsibility.\nResponsibility is of two kinds to censure and to punishment. The\nfirst is the more important of the two, especially in an elective\noffice. Man, in public trust, will much oftener act in such a\nmanner as to render him unworthy of being any longer trusted, than\nin such a manner as to make him obnoxious to legal punishment. But\nthe multiplication of the Executive adds to the difficulty of\ndetection in either case. It often becomes impossible, amidst\nmutual accusations, to determine on whom the blame or the punishment\nof a pernicious measure, or series of pernicious measures, ought\nreally to fall. It is shifted from one to another with so much\ndexterity, and under such plausible appearances, that the public\nopinion is left in suspense about the real author. The\ncircumstances which may have led to any national miscarriage or\nmisfortune are sometimes so complicated that, where there are a\nnumber of actors who may have had different degrees and kinds of\nagency, though we may clearly see upon the whole that there has been\nmismanagement, yet it may be impracticable to pronounce to whose\naccount the evil which may have been incurred is truly chargeable.\n\n\"I was overruled by my council. The council were so divided in\ntheir opinions that it was impossible to obtain any better\nresolution on the point.\" These and similar pretexts are\nconstantly at hand, whether true or false. And who is there that\nwill either take the trouble or incur the odium, of a strict\nscrunity into the secret springs of the transaction? Should there\nbe found a citizen zealous enough to undertake the unpromising task,\nif there happen to be collusion between the parties concerned, how\neasy it is to clothe the circumstances with so much ambiguity, as to\nrender it uncertain what was the precise conduct of any of those\nparties?\n\nIn the single instance in which the governor of this State is\ncoupled with a council that is, in the appointment to offices, we\nhave seen the mischiefs of it in the view now under consideration.\nScandalous appointments to important offices have been made. Some\ncases, indeed, have been so flagrant that ALL PARTIES have agreed in\nthe impropriety of the thing. When inquiry has been made, the blame\nhas been laid by the governor on the members of the council, who, on\ntheir part, have charged it upon his nomination; while the people\nremain altogether at a loss to determine, by whose influence their\ninterests have been committed to hands so unqualified and so\nmanifestly improper. In tenderness to individuals, I forbear to\ndescend to particulars.\n\nIt is evident from these considerations, that the plurality of\nthe Executive tends to deprive the people of the two greatest\nsecurities they can have for the faithful exercise of any delegated\npower, first, the restraints of public opinion, which lose their\nefficacy, as well on account of the division of the censure\nattendant on bad measures among a number, as on account of the\nuncertainty on whom it ought to fall; and, secondly, the\nopportunity of discovering with facility and clearness the\nmisconduct of the persons they trust, in order either to their\nremoval from office or to their actual punishment in cases which\nadmit of it.\n\nIn England, the king is a perpetual magistrate; and it is a\nmaxim which has obtained for the sake of the pub lic peace, that he\nis unaccountable for his administration, and his person sacred.\nNothing, therefore, can be wiser in that kingdom, than to annex to\nthe king a constitutional council, who may be responsible to the\nnation for the advice they give. Without this, there would be no\nresponsibility whatever in the executive department an idea\ninadmissible in a free government. But even there the king is not\nbound by the resolutions of his council, though they are answerable\nfor the advice they give. He is the absolute master of his own\nconduct 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\nBritish Constitution dictates the propriety of a council, not only\nceases to apply, but turns against the institution. In the monarchy\nof Great Britain, it furnishes a substitute for the prohibited\nresponsibility of the chief magistrate, which serves in some degree\nas a hostage to the national justice for his good behavior. In the\nAmerican republic, it would serve to destroy, or would greatly\ndiminish, the intended and necessary responsibility of the Chief\nMagistrate himself.\n\nThe idea of a council to the Executive, which has so generally\nobtained in the State constitutions, has been derived from that\nmaxim of republican jealousy which considers power as safer in the\nhands of a number of men than of a single man. If the maxim should\nbe admitted to be applicable to the case, I should contend that the\nadvantage on that side would not counterbalance the numerous\ndisadvantages on the opposite side. But I do not think the rule at\nall applicable to the executive power. I clearly concur in opinion,\nin this particular, with a writer whom the celebrated Junius\npronounces to be \"deep, solid, and ingenious,\" that \"the\nexecutive power is more easily confined when it is ONE\"; [2] that\nit is far more safe there should be a single object for the jealousy\nand 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\nsecurity sought for in the multiplication of the Executive, is\nnattainable. Numbers must be so great as to render combination\ndifficult, or they are rather a source of danger than of security.\nThe united credit and influence of several individuals must be more\nformidable to liberty, than the credit and influence of either of\nthem separately. When power, therefore, is placed in the hands of\nso small a number of men, as to admit of their interests and views\nbeing easily combined in a common enterprise, by an artful leader,\nit becomes more liable to abuse, and more dangerous when abused,\nthan if it be lodged in the hands of one man; who, from the very\ncircumstance of his being alone, will be more narrowly watched and\nmore readily suspected, and who cannot unite so great a mass of\ninfluence as when he is associated with others. The Decemvirs of\nRome, whose name denotes their number, [3] were more to be dreaded\nin their usurpation than any ONE of them would have been. No person\nwould think of proposing an Executive much more numerous than that\nbody; from six to a dozen have been suggested for the number of the\ncouncil. 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\na magistrate, who is himself responsible for what he does, are\ngenerally nothing better than a clog upon his good intentions, are\noften the instruments and accomplices of his bad and are almost\nalways a cloak to his faults.\n\nI forbear to dwell upon the subject of expense; though it be\nevident that if the council should be numerous enough to answer the\nprincipal end aimed at by the institution, the salaries of the\nmembers, who must be drawn from their homes to reside at the seat of\ngovernment, would form an item in the catalogue of public\nexpenditures too serious to be incurred for an object of equivocal\nutility. I will only add that, prior to the appearance of the\nConstitution, I rarely met with an intelligent man from any of the\nStates, who did not admit, as the result of experience, that the\nUNITY of the executive of this State was one of the best of the\ndistinguishing features of our constitution.\n\nPUBLIUS.\n\n1. New York has no council except for the single purpose of\nappointing to offices; New Jersey has a council whom the governor\nmay consult. But I think, from the terms of the constitution, their\nresolutions do not bind him.\n\n2. De Lolme.\n\n3. Ten.\n", "date": "Tuesday, March 18, 1788", "title": "The Executive Department Further Considered", "paper_id": 70, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nDURATION in office has been mentioned as the second requisite to\nthe energy of the Executive authority. This has relation to two\nobjects: to the personal firmness of the executive magistrate, in\nthe employment of his constitutional powers; and to the stability\nof the system of administration which may have been adopted under\nhis auspices. With regard to the first, it must be evident, that\nthe longer the duration in office, the greater will be the\nprobability of obtaining so important an advantage. It is a general\nprinciple of human nature, that a man will be interested in whatever\nhe possesses, in proportion to the firmness or precariousness of the\ntenure by which he holds it; will be less attached to what he holds\nby a momentary or uncertain title, than to what he enjoys by a\ndurable or certain title; and, of course, will be willing to risk\nmore 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\na consciousness that in a very short time he MUST lay down his\noffice, will be apt to feel himself too little interested in it to\nhazard any material censure or perplexity, from the independent\nexertion of his powers, or from encountering the ill-humors, however\ntransient, which may happen to prevail, either in a considerable\npart of the society itself, or even in a predominant faction in the\nlegislative body. If the case should only be, that he MIGHT lay it\ndown, unless continued by a new choice, and if he should be desirous\nof being continued, his wishes, conspiring with his fears, would\ntend still more powerfully to corrupt his integrity, or debase his\nfortitude. In either case, feebleness and irresolution must be the\ncharacteristics of the station.\n\nThere are some who would be inclined to regard the servile\npliancy of the Executive to a prevailing current, either in the\ncommunity or in the legislature, as its best recommendation. But\nsuch men entertain very crude notions, as well of the purposes for\nwhich government was instituted, as of the true means by which the\npublic happiness may be promoted. The republican principle demands\nthat the deliberate sense of the community should govern the conduct\nof those to whom they intrust the management of their affairs; but\nit does not require an unqualified complaisance to every sudden\nbreeze of passion, or to every transient impulse which the people\nmay receive from the arts of men, who flatter their prejudices to\nbetray their interests. It is a just observation, that the people\ncommonly INTEND the PUBLIC GOOD. This often applies to their very\nerrors. But their good sense would despise the adulator who should\npretend that they always REASON RIGHT about the MEANS of promoting\nit. They know from experience that they sometimes err; and the\nwonder is that they so seldom err as they do, beset, as they\ncontinually are, by the wiles of parasites and sycophants, by the\nsnares of the ambitious, the avaricious, the desperate, by the\nartifices of men who possess their confidence more than they deserve\nit, and of those who seek to possess rather than to deserve it.\nWhen occasions present themselves, in which the interests of the\npeople are at variance with their inclinations, it is the duty of\nthe persons whom they have appointed to be the guardians of those\ninterests, to withstand the temporary delusion, in order to give\nthem time and opportunity for more cool and sedate reflection.\nInstances might be cited in which a conduct of this kind has saved\nthe people from very fatal consequences of their own mistakes, and\nhas procured lasting monuments of their gratitude to the men who had\ncourage and magnanimity enough to serve them at the peril of their\ndispleasure.\n\nBut however inclined we might be to insist upon an unbounded\ncomplaisance in the Executive to the inclinations of the people, we\ncan with no propriety contend for a like complaisance to the humors\nof the legislature. The latter may sometimes stand in opposition to\nthe former, and at other times the people may be entirely neutral.\nIn either supposition, it is certainly desirable that the Executive\nshould be in a situation to dare to act his own opinion with vigor\nand decision.\n\nThe same rule which teaches the propriety of a partition between\nthe various branches of power, teaches us likewise that this\npartition ought to be so contrived as to render the one independent\nof the other. To what purpose separate the executive or the\njudiciary from the legislative, if both the executive and the\njudiciary are so constituted as to be at the absolute devotion of\nthe legislative? Such a separation must be merely nominal, and\nincapable of producing the ends for which it was established. It is\none thing to be subordinate to the laws, and another to be dependent\non the legislative body. The first comports with, the last\nviolates, the fundamental principles of good government; and,\nwhatever may be the forms of the Constitution, unites all power in\nthe 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\ntendency is almost irresistible. The representatives of the people,\nin a popular assembly, seem sometimes to fancy that they are the\npeople themselves, and betray strong symptoms of impatience and\ndisgust at the least sign of opposition from any other quarter; as\nif the exercise of its rights, by either the executive or judiciary,\nwere a breach of their privilege and an outrage to their dignity.\nThey often appear disposed to exert an imperious control over the\nother departments; and as they commonly have the people on their\nside, they always act with such momentum as to make it very\ndifficult for the other members of the government to maintain the\nbalance of the Constitution.\n\nIt may perhaps be asked, how the shortness of the duration in\noffice can affect the independence of the Executive on the\nlegislature, unless the one were possessed of the power of\nappointing or displacing the other. One answer to this inquiry may\nbe drawn from the principle already remarked that is, from the\nslender interest a man is apt to take in a short-lived advantage,\nand the little inducement it affords him to expose himself, on\naccount of it, to any considerable inconvenience or hazard. Another\nanswer, perhaps more obvious, though not more conclusive, will\nresult from the consideration of the influence of the legislative\nbody over the people; which might be employed to prevent the\nre-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\nanswer the end proposed; and if it would not, whether a less\nperiod, which would at least be recommended by greater security\nagainst ambitious designs, would not, for that reason, be preferable\nto a longer period, which was, at the same time, too short for the\npurpose of inspiring the desired firmness and independence of the\nmagistrate.\n\nIt cannot be affirmed, that a duration of four years, or any\nother limited duration, would completely answer the end proposed;\nbut it would contribute towards it in a degree which would have a\nmaterial influence upon the spirit and character of the government.\nBetween the commencement and termination of such a period, there\nwould always be a considerable interval, in which the prospect of\nannihilation would be sufficiently remote, not to have an improper\neffect upon the conduct of a man indued with a tolerable portion of\nfortitude; and in which he might reasonably promise himself, that\nthere would be time enough before it arrived, to make the community\nsensible of the propriety of the measures he might incline to pursue.\nThough it be probable that, as he approached the moment when the\npublic were, by a new election, to signify their sense of his\nconduct, his confidence, and with it his firmness, would decline;\nyet both the one and the other would derive support from the\nopportunities which his previous continuance in the station had\nafforded him, of establishing himself in the esteem and good-will of\nhis constituents. He might, then, hazard with safety, in proportion\nto the proofs he had given of his wisdom and integrity, and to the\ntitle 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\nto render it a very valuable ingredient in the composition; so, on\nthe other, it is not enough to justify any alarm for the public\nliberty. If a British House of Commons, from the most feeble\nbeginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE\nIMPOSITION OF A NEW TAX, have, by rapid strides, reduced the\nprerogatives of the crown and the privileges of the nobility within\nthe limits they conceived to be compatible with the principles of a\nfree government, while they raised themselves to the rank and\nconsequence of a coequal branch of the legislature; if they have\nbeen able, in one instance, to abolish both the royalty and the\naristocracy, and to overturn all the ancient establishments, as well\nin the Church as State; if they have been able, on a recent\noccasion, to make the monarch tremble at the prospect of an\ninnovation [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\nmight be unequal to the task which the Constitution assigns him? I\nshall only add, that if his duration be such as to leave a doubt of\nhis firmness, that doubt is inconsistent with a jealousy of his\nencroachments.\n\nPUBLIUS.\n\n1. This was the case with respect to Mr. Fox's India bill, which\nwas carried in the House of Commons, and rejected in the House of\nLords, to the entire satisfaction, as it is said, of the people.\n", "date": "Tuesday, March 18, 1788", "title": "The Duration in Office of the Executive", "paper_id": 71, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE administration of government, in its largest sense,\ncomprehends all the operations of the body politic, whether\nlegislative, executive, or judiciary; but in its most usual, and\nperhaps its most precise signification. It is limited to executive\ndetails, and falls peculiarly within the province of the executive\ndepartment. The actual conduct of foreign negotiations, the\npreparatory plans of finance, the application and disbursement of\nthe public moneys in conformity to the general appropriations of the\nlegislature, the arrangement of the army and navy, the directions of\nthe operations of war, these, and other matters of a like nature,\nconstitute what seems to be most properly understood by the\nadministration of government. The persons, therefore, to whose\nimmediate management these different matters are committed, ought to\nbe considered as the assistants or deputies of the chief magistrate,\nand on this account, they ought to derive their offices from his\nappointment, at least from his nomination, and ought to be subject\nto his superintendence. This view of the subject will at once\nsuggest to us the intimate connection between the duration of the\nexecutive magistrate in office and the stability of the system of\nadministration. To reverse and undo what has been done by a\npredecessor, is very often considered by a successor as the best\nproof he can give of his own capacity and desert; and in addition\nto this propensity, where the alteration has been the result of\npublic choice, the person substituted is warranted in supposing that\nthe dismission of his predecessor has proceeded from a dislike to\nhis measures; and that the less he resembles him, the more he will\nrecommend 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\npromote a change of men to fill the subordinate stations; and these\ncauses together could not fail to occasion a disgraceful and ruinous\nmutability in 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\nthe officer himself the inclination and the resolution to act his\npart well, and to the community time and leisure to observe the\ntendency of his measures, and thence to form an experimental\nestimate of their merits. The last is necessary to enable the\npeople, when they see reason to approve of his conduct, to continue\nhim in his station, in order to prolong the utility of his talents\nand virtues, and to secure to the government the advantage of\npermanency in a wise system of administration.\n\nNothing appears more plausible at first sight, nor more\nill-founded upon close inspection, than a scheme which in relation\nto the present point has had some respectable advocates, I mean that\nof continuing the chief magistrate in office for a certain time, and\nthen excluding him from it, either for a limited period or forever\nafter. This exclusion, whether temporary or perpetual, would have\nnearly the same effects, and these effects would be for the most\npart rather pernicious than salutary.\n\nOne ill effect of the exclusion would be a diminution of the\ninducements to good behavior. There are few men who would not feel\nmuch less zeal in the discharge of a duty when they were conscious\nthat the advantages of the station with which it was connected must\nbe relinquished at a determinate period, than when they were\npermitted to entertain a hope of OBTAINING, by MERITING, a\ncontinuance of them. This position will not be disputed so long as\nit is admitted that the desire of reward is one of the strongest\nincentives of human conduct; or that the best security for the\nfidelity of mankind is to make their interests coincide with their\nduty. Even the love of fame, the ruling passion of the noblest\nminds, which would prompt a man to plan and undertake extensive and\narduous enterprises for the public benefit, requiring considerable\ntime to mature and perfect them, if he could flatter himself with\nthe prospect of being allowed to finish what he had begun, would, on\nthe contrary, deter him from the undertaking, when he foresaw that\nhe must quit the scene before he could accomplish the work, and must\ncommit that, together with his own reputation, to hands which might\nbe unequal or unfriendly to the task. The most to be expected from\nthe generality of men, in such a situation, is the negative merit of\nnot doing harm, instead of the positive merit of doing good.\n\nAnother ill effect of the exclusion would be the temptation to\nsordid views, to peculation, and, in some instances, to usurpation.\nAn avaricious man, who might happen to fill the office, looking\nforward to a time when he must at all events yield up the emoluments\nhe enjoyed, would feel a propensity, not easy to be resisted by such\na man, to make the best use of the opportunity he enjoyed while it\nlasted, and might not scruple to have recourse to the most corrupt\nexpedients to make the harvest as abundant as it was transitory;\nthough the same man, probably, with a different prospect before\nhim, might content himself with the regular perquisites of his\nsituation, and might even be unwilling to risk the consequences of\nan abuse of his opportunities. His avarice might be a guard upon\nhis avarice. Add to this that the same man might be vain or\nambitious, as well as avaricious. And if he could expect to prolong\nhis honors by his good conduct, he might hesitate to sacrifice his\nappetite 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\nhis ambition.\n\nAn ambitious man, too, when he found himself seated on the\nsummit of his country's honors, when he looked forward to the time\nat which he must descend from the exalted eminence for ever, and\nreflected that no exertion of merit on his part could save him from\nthe unwelcome reverse; such a man, in such a situation, would be\nmuch more violently tempted to embrace a favorable conjuncture for\nattempting the prolongation of his power, at every personal hazard,\nthan if he had the probability of answering the same end by doing\nhis duty.\n\nWould it promote the peace of the community, or the stability of\nthe government to have half a dozen men who had had credit enough to\nbe raised to the seat of the supreme magistracy, wandering among the\npeople like discontented ghosts, and sighing for a place which they\nwere destined 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\nparent of wisdom, is an adage the truth of which is recognized by\nthe wisest as well as the simplest of mankind. What more desirable\nor more essential than this quality in the governors of nations?\nWhere more desirable or more essential than in the first magistrate\nof a nation? Can it be wise to put this desirable and essential\nquality under the ban of the Constitution, and to declare that the\nmoment it is acquired, its possessor shall be compelled to abandon\nthe station in which it was acquired, and to which it is adapted?\nThis, nevertheless, is the precise import of all those regulations\nwhich exclude men from serving their country, by the choice of their\nfellowcitizens, after they have by a course of service fitted\nthemselves for doing it with a greater degree of utility.\n\nA fourth ill effect of the exclusion would be the banishing men\nfrom stations in which, in certain emergencies of the state, their\npresence might be of the greatest moment to the public interest or\nsafety. There is no nation which has not, at one period or another,\nexperienced an absolute necessity of the services of particular men\nin particular situations; perhaps it would not be too strong to\nsay, to the preservation of its political existence. How unwise,\ntherefore, must be every such self-denying ordinance as serves to\nprohibit a nation from making use of its own citizens in the manner\nbest suited to its exigencies and circumstances! Without supposing\nthe personal essentiality of the man, it is evident that a change of\nthe chief magistrate, at the breaking out of a war, or at any\nsimilar crisis, for another, even of equal merit, would at all times\nbe detrimental to the community, inasmuch as it would substitute\ninexperience to experience, and would tend to unhinge and set afloat\nthe already settled train of the administration.\n\nA fifth ill effect of the exclusion would be, that it would\noperate as a constitutional interdiction of stability in the\nadministration. By NECESSITATING a change of men, in the first\noffice of the nation, it would necessitate a mutability of measures.\nIt is not generally to be expected, that men will vary and measures\nremain uniform. The contrary is the usual course of things. And we\nneed not be apprehensive that there will be too much stability,\nwhile there is even the option of changing; nor need we desire to\nprohibit the people from continuing their confidence where they\nthink it may be safely placed, and where, by constancy on their\npart, they may obviate the fatal inconveniences of fluctuating\ncouncils and a variable policy.\n\nThese are some of the disadvantages which would flow from the\nprinciple of exclusion. They apply most forcibly to the scheme of a\nperpetual exclusion; but when we consider that even a partial\nexclusion would always render the readmission of the person a remote\nand precarious object, the observations which have been made will\napply nearly as fully to one case as to the other.\n\nWhat are the advantages promised to counterbalance these\ndisadvantages? They are represented to be: 1st, greater\nindependence in the magistrate; 2d, greater security to the people.\nUnless the exclusion be perpetual, there will be no pretense to\ninfer the first advantage. But even in that case, may he have no\nobject beyond his present station, to which he may sacrifice his\nindependence? May he have no connections, no friends, for whom he\nmay sacrifice it? May he not be less willing by a firm conduct, to\nmake 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\nan inferior, footing? It is not an easy point to determine whether\nhis independence would be most promoted or impaired by such an\narrangement.\n\nAs to the second supposed advantage, there is still greater\nreason to entertain doubts concerning it. If the exclusion were to\nbe perpetual, a man of irregular ambition, of whom alone there could\nbe reason in any case to entertain apprehension, would, with\ninfinite reluctance, yield to the necessity of taking his leave\nforever of a post in which his passion for power and pre-eminence\nhad acquired the force of habit. And if he had been fortunate or\nadroit enough to conciliate the good-will of the people, he might\ninduce them to consider as a very odious and unjustifiable restraint\nupon themselves, a provision which was calculated to debar them of\nthe right of giving a fresh proof of their attachment to a favorite.\nThere may be conceived circumstances in which this disgust of the\npeople, seconding the thwarted ambition of such a favorite, might\noccasion greater danger to liberty, than could ever reasonably be\ndreaded from the possibility of a perpetuation in office, by the\nvoluntary suffrages of the community, exercising a constitutional\nprivilege.\n\nThere is an excess of refinement in the idea of disabling the\npeople to continue in office men who had entitled themselves, in\ntheir opinion, to approbation and confidence; the advantages of\nwhich are at best speculative and equivocal, and are overbalanced by\ndisadvantages far more certain and decisive.\n\nPUBLIUS.\n", "date": "Friday, March 21, 1788", "title": "The Same Subject Continued, and Re-Eligibility of the Executive Considered", "paper_id": 72, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE third ingredient towards constituting the vigor of the\nexecutive authority, is an adequate provision for its support. It\nis evident that, without proper attention to this article, the\nseparation of the executive from the legislative department would be\nmerely nominal and nugatory. The legislature, with a discretionary\npower over the salary and emoluments of the Chief Magistrate, could\nrender him as obsequious to their will as they might think proper to\nmake him. They might, in most cases, either reduce him by famine,\nor tempt him by largesses, to surrender at discretion his judgment\nto their inclinations. These expressions, taken in all the latitude\nof the terms, would no doubt convey more than is intended. There\nare men who could neither be distressed nor won into a sacrifice of\ntheir duty; but this stern virtue is the growth of few soils; and\nin the main it will be found that a power over a man's support is a\npower over his will. If it were necessary to confirm so plain a\ntruth by facts, examples would not be wanting, even in this country,\nof the intimidation or seduction of the Executive by the terrors or\nallurements of the pecuniary arrangements of the legislative body.\n\nIt is not easy, therefore, to commend too highly the judicious\nattention which has been paid to this subject in the proposed\nConstitution. It is there provided that \"The President of the\nUnited States shall, at stated times, receive for his services a\ncompensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING\nTHE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT\nRECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United\nStates, or any of them.\" It is impossible to imagine any provision\nwhich would have been more eligible than this. The legislature, on\nthe appointment of a President, is once for all to declare what\nshall be the compensation for his services during the time for which\nhe shall have been elected. This done, they will have no power to\nalter it, either by increase or diminution, till a new period of\nservice 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\nmembers, will be at liberty to give, nor will he be at liberty to\nreceive, any other emolument than that which may have been\ndetermined by the first act. He can, of course, have no pecuniary\ninducement to renounce or desert the independence intended for him\nby the Constitution.\n\nThe last of the requisites to energy, which have been\nenumerated, are competent powers. Let us proceed to consider those\nwhich are proposed to be vested in the President of the United\nStates.\n\nThe first thing that offers itself to our observation, is the\nqualified negative of the President upon the acts or resolutions of\nthe two houses of the legislature; or, in other words, his power of\nreturning all bills with objections, to have the effect of\npreventing their becoming laws, unless they should afterwards be\nratified by two thirds of each of the component members of the\nlegislative body.\n\nThe propensity of the legislative department to intrude upon the\nrights, and to absorb the powers, of the other departments, has been\nalready suggested and repeated; the insufficiency of a mere\nparchment delineation of the boundaries of each, has also been\nremarked upon; and the necessity of furnishing each with\nconstitutional arms for its own defense, has been inferred and\nproved. From these clear and indubitable principles results the\npropriety of a negative, either absolute or qualified, in the\nExecutive, upon the acts of the legislative branches. Without the\none or the other, the former would be absolutely unable to defend\nhimself against the depredations of the latter. He might gradually\nbe stripped of his authorities by successive resolutions, or\nannihilated by a single vote. And in the one mode or the other, the\nlegislative and executive powers might speedily come to be blended\nin the same hands. If even no propensity had ever discovered itself\nin the legislative body to invade the rights of the Executive, the\nrules of just reasoning and theoretic propriety would of themselves\nteach us, that the one ought not to be left to the mercy of the\nother, but ought to possess a constitutional and effectual power of\nselfdefense.\n\nBut the power in question has a further use. It not only serves\nas a shield to the Executive, but it furnishes an additional\nsecurity against the enaction of improper laws. It establishes a\nsalutary check upon the legislative body, calculated to guard the\ncommunity against the effects of faction, precipitancy, or of any\nimpulse unfriendly to the public good, which may happen to influence\na majority of that body.\n\nThe propriety of a negative has, upon some occasions, been\ncombated by an observation, that it was not to be presumed a single\nman would possess more virtue and wisdom than a number of men; and\nthat unless this presumption should be entertained, it would be\nimproper to give the executive magistrate any species of control\nover the legislative body.\n\nBut this observation, when examined, will appear rather specious\nthan solid. The propriety of the thing does not turn upon the\nsupposition of superior wisdom or virtue in the Executive, but upon\nthe supposition that the legislature will not be infallible; that\nthe love of power may sometimes betray it into a disposition to\nencroach upon the rights of other members of the government; that a\nspirit of faction may sometimes pervert its deliberations; that\nimpressions of the moment may sometimes hurry it into measures which\nitself, on maturer reflexion, would condemn. The primary inducement\nto conferring the power in question upon the Executive is, to enable\nhim to defend himself; the secondary one is to increase the chances\nin favor of the community against the passing of bad laws, through\nhaste, inadvertence, or design. The oftener the measure is brought\nunder examination, the greater the diversity in the situations of\nthose who are to examine it, the less must be the danger of those\nerrors 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\nin relation to the same object, than that they should by turns\ngovern and mislead every one of them.\n\nIt may perhaps be said that the power of preventing bad laws\nincludes that of preventing good ones; and may be used to the one\npurpose as well as to the other. But this objection will have\nlittle weight with those who can properly estimate the mischiefs of\nthat inconstancy and mutability in the laws, which form the greatest\nblemish in the character and genius of our governments. They will\nconsider every institution calculated to restrain the excess of\nlaw-making, and to keep things in the same state in which they\nhappen to be at any given period, as much more likely to do good\nthan harm; because it is favorable to greater stability in the\nsystem of legislation. The injury which may possibly be done by\ndefeating 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\nlegislative body in a free government, and the hazard to the\nExecutive in a trial of strength with that body, afford a\nsatisfactory security that the negative would generally be employed\nwith great caution; and there would oftener be room for a charge of\ntimidity than of rashness in the exercise of it. A king of Great\nBritain, with all his train of sovereign attributes, and with all\nthe influence he draws from a thousand sources, would, at this day,\nhesitate to put a negative upon the joint resolutions of the two\nhouses of Parliament. He would not fail to exert the utmost\nresources of that influence to strangle a measure disagreeable to\nhim, in its progress to the throne, to avoid being reduced to the\ndilemma of permitting it to take effect, or of risking the\ndispleasure of the nation by an opposition to the sense of the\nlegislative body. Nor is it probable, that he would ultimately\nventure to exert his prerogatives, but in a case of manifest\npropriety, or extreme necessity. All well-informed men in that\nkingdom will accede to the justness of this remark. A very\nconsiderable period has elapsed since the negative of the crown has\nbeen exercised.\n\nIf a magistrate so powerful and so well fortified as a British\nmonarch, would have scruples about the exercise of the power under\nconsideration, how much greater caution may be reasonably expected\nin a President of the United States, clothed for the short period of\nfour years with the executive authority of a government wholly and\npurely republican?\n\nIt is evident that there would be greater danger of his not\nusing his power when necessary, than of his using it too often, or\ntoo much. An argument, indeed, against its expediency, has been\ndrawn from this very source. It has been represented, on this\naccount, as a power odious in appearance, useless in practice. But\nit will not follow, that because it might be rarely exercised, it\nwould never be exercised. In the case for which it is chiefly\ndesigned, that of an immediate attack upon the constitutional rights\nof the Executive, or in a case in which the public good was\nevidently and palpably sacrificed, a man of tolerable firmness would\navail 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\ninterest in the power of his office; in the latter, by the\nprobability of the sanction of his constituents, who, though they\nwould naturally incline to the legislative body in a doubtful case,\nwould hardly suffer their partiality to delude them in a very plain\ncase. I speak now with an eye to a magistrate possessing only a\ncommon share of firmness. There are men who, under any\ncircumstances, will have the courage to do their duty at every\nhazard.\n\nBut the convention have pursued a mean in this business, which\nwill both facilitate the exercise of the power vested in this\nrespect in the executive magistrate, and make its efficacy to depend\non the sense of a considerable part of the legislative body.\nInstead of an absolute negative, it is proposed to give the\nExecutive the qualified negative already described. This is a power\nwhich would be much more readily exercised than the other. A man\nwho might be afraid to defeat a law by his single VETO, might not\nscruple to return it for reconsideration; subject to being finally\nrejected only in the event of more than one third of each house\nconcurring in the sufficiency of his objections. He would be\nencouraged by the reflection, that if his opposition should prevail,\nit would embark in it a very respectable proportion of the\nlegislative body, whose influence would be united with his in\nsupporting the propriety of his conduct in the public opinion. A\ndirect and categorical negative has something in the appearance of\nit more harsh, and more apt to irritate, than the mere suggestion of\nargumentative objections to be approved or disapproved by those to\nwhom they are addressed. In proportion as it would be less apt to\noffend, it would be more apt to be exercised; and for this very\nreason, it may in practice be found more effectual. It is to be\nhoped that it will not often happen that improper views will govern\nso large a proportion as two thirds of both branches of the\nlegislature at the same time; and this, too, in spite of the\ncounterposing weight of the Executive. It is at any rate far less\nprobable that this should be the case, than that such views should\ntaint the resolutions and conduct of a bare majority. A power of\nthis nature in the Executive, will often have a silent and\nunperceived, though forcible, operation. When men, engaged in\nunjustifiable pursuits, are aware that obstructions may come from a\nquarter which they cannot control, they will often be restrained by\nthe bare apprehension of opposition, from doing what they would with\neagerness rush into, if no such external impediments were to be\nfeared.\n\nThis qualified negative, as has been elsewhere remarked, is in\nthis State vested in a council, consisting of the governor, with the\nchancellor and judges of the Supreme Court, or any two of them. It\nhas been freely employed upon a variety of occasions, and frequently\nwith success. And its utility has become so apparent, that persons\nwho, in compiling the Constitution, were violent opposers of it,\nhave from experience become its declared admirers. [1]\n\nI have in another place remarked, that the convention, in the\nformation of this part of their plan, had departed from the model of\nthe constitution of this State, in favor of that of Massachusetts.\nTwo strong reasons may be imagined for this preference. One is\nthat the judges, who are to be the interpreters of the law, might\nreceive an improper bias, from having given a previous opinion in\ntheir revisionary capacities; the other is that by being often\nassociated with the Executive, they might be induced to embark too\nfar in the political views of that magistrate, and thus a dangerous\ncombination might by degrees be cemented between the executive and\njudiciary departments. It is impossible to keep the judges too\ndistinct from every other avocation than that of expounding the laws.\nIt is peculiarly dangerous to place them in a situation to be\neither corrupted or influenced by the Executive.\n\nPUBLIUS.\n\n1. Mr. Abraham Yates, a warm opponent of the plan of the\nconvention is of this number.\n", "date": "Friday, March 21, 1788", "title": "The Provision For The Support of the Executive, and the Veto Power", "paper_id": 73, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE President of the United States is to be \"commander-in-chief\nof the army and navy of the United States, and of the militia of the\nseveral States WHEN CALLED INTO THE ACTUAL SERVICE of the United\nStates.\" The propriety of this provision is so evident in itself,\nand it is, at the same time, so consonant to the precedents of the\nState constitutions in general, that little need be said to explain\nor enforce it. Even those of them which have, in other respects,\ncoupled the chief magistrate with a council, have for the most part\nconcentrated the military authority in him alone. Of all the cares\nor concerns of government, the direction of war most peculiarly\ndemands those qualities which distinguish the exercise of power by a\nsingle hand. The direction of war implies the direction of the\ncommon strength; and the power of directing and employing the\ncommon strength, forms a usual and essential part in the definition\nof the executive authority.\n\n\"The President may require the opinion, in writing, of the\nprincipal officer in each of the executive departments, upon any\nsubject relating to the duties of their respective officers.\" This\nI consider as a mere redundancy in the plan, as the right for which\nit provides would result of itself from the office.\n\nHe is also to be authorized to grant \"reprieves and pardons for\noffenses against the United States, EXCEPT IN CASES OF\nIMPEACHMENT.\" Humanity and good policy conspire to dictate, that\nthe benign prerogative of pardoning should be as little as possible\nfettered or embarrassed. The criminal code of every country\npartakes so much of necessary severity, that without an easy access\nto exceptions in favor of unfortunate guilt, justice would wear a\ncountenance too sanguinary and cruel. As the sense of\nresponsibility is always strongest, in proportion as it is\nundivided, it may be inferred that a single man would be most ready\nto attend to the force of those motives which might plead for a\nmitigation of the rigor of the law, and least apt to yield to\nconsiderations which were calculated to shelter a fit object of its\nvengeance. The reflection that the fate of a fellow-creature\ndepended on his sole fiat, would naturally inspire\nscrupulousness and caution; the dread of being accused of weakness\nor connivance, would beget equal circumspection, though of a\ndifferent kind. On the other hand, as men generally derive\nconfidence from their numbers, they might often encourage each other\nin an act of obduracy, and might be less sensible to the\napprehension of suspicion or censure for an injudicious or affected\nclemency. On these accounts, one man appears to be a more eligible\ndispenser of the mercy of government, than a body of men.\n\nThe expediency of vesting the power of pardoning in the\nPresident has, if I mistake not, been only contested in relation to\nthe crime of treason. This, it has been urged, ought to have\ndepended upon the assent of one, or both, of the branches of the\nlegislative body. I shall not deny that there are strong reasons to\nbe assigned for requiring in this particular the concurrence of that\nbody, or of a part of it. As treason is a crime levelled at the\nimmediate being of the society, when the laws have once ascertained\nthe guilt of the offender, there seems a fitness in referring the\nexpediency of an act of mercy towards him to the judgment of the\nlegislature. And this ought the rather to be the case, as the\nsupposition of the connivance of the Chief Magistrate ought not to\nbe 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\ngood sense is better fitted, in delicate conjunctures, to balance\nthe motives which may plead for and against the remission of the\npunishment, than any numerous body whatever. It deserves particular\nattention, that treason will often be connected with seditions which\nembrace a large proportion of the community; as lately happened in\nMassachusetts. In every such case, we might expect to see the\nrepresentation of the people tainted with the same spirit which had\ngiven birth to the offense. And when parties were pretty equally\nmatched, the secret sympathy of the friends and favorers of the\ncondemned person, availing itself of the good-nature and weakness of\nothers, might frequently bestow impunity where the terror of an\nexample was necessary. On the other hand, when the sedition had\nproceeded from causes which had inflamed the resentments of the\nmajor party, they might often be found obstinate and inexorable,\nwhen policy demanded a conduct of forbearance and clemency. But the\nprincipal argument for reposing the power of pardoning in this case\nto the Chief Magistrate is this: in seasons of insurrection or\nrebellion, there are often critical moments, when a welltimed offer\nof pardon to the insurgents or rebels may restore the tranquillity\nof the commonwealth; and which, if suffered to pass unimproved, it\nmay never be possible afterwards to recall. The dilatory process of\nconvening the legislature, or one of its branches, for the purpose\nof obtaining its sanction to the measure, would frequently be the\noccasion of letting slip the golden opportunity. The loss of a\nweek, a day, an hour, may sometimes be fatal. If it should be\nobserved, that a discretionary power, with a view to such\ncontingencies, might be occasionally conferred upon the President,\nit may be answered in the first place, that it is questionable,\nwhether, in a limited Constitution, that power could be delegated by\nlaw; and in the second place, that it would generally be impolitic\nbeforehand to take any step which might hold out the prospect of\nimpunity. A proceeding of this kind, out of the usual course, would\nbe likely to be construed into an argument of timidity or of\nweakness, and would have a tendency to embolden guilt.\n\nPUBLIUS.\n", "date": "Tuesday, March 25, 1788", "title": "The Command of the Military and Naval Forces, and the Pardoning Power of the Executive", "paper_id": 74, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE President is to have power, \"by and with the advice and\nconsent of the Senate, to make treaties, provided two thirds of the\nsenators present concur.\"\n\nThough this provision has been assailed, on different grounds,\nwith no small degree of vehemence, I scruple not to declare my firm\npersuasion, that it is one of the best digested and most\nunexceptionable parts of the plan. One ground of objection is the\ntrite topic of the intermixture of powers; some contending that the\nPresident ought alone to possess the power of making treaties;\nothers, that it ought to have been exclusively deposited in the\nSenate. Another source of objection is derived from the small\nnumber of persons by whom a treaty may be made. Of those who\nespouse this objection, a part are of opinion that the House of\nRepresentatives ought to have been associated in the business, while\nanother part seem to think that nothing more was necessary than to\nhave substituted two thirds of ALL the members of the Senate, to two\nthirds of the members PRESENT. As I flatter myself the observations\nmade in a preceding number upon this part of the plan must have\nsufficed to place it, to a discerning eye, in a very favorable\nlight, I shall here content myself with offering only some\nsupplementary remarks, principally with a view to the objections\nwhich have been just stated.\n\nWith regard to the intermixture of powers, I shall rely upon the\nexplanations already given in other places, of the true sense of the\nrule upon which that objection is founded; and shall take it for\ngranted, as an inference from them, that the union of the Executive\nwith the Senate, in the article of treaties, is no infringement of\nthat rule. I venture to add, that the particular nature of the\npower of making treaties indicates a peculiar propriety in that\nunion. Though several writers on the subject of government place\nthat power in the class of executive authorities, yet this is\nevidently an arbitrary disposition; for if we attend carefully to\nits operation, it will be found to partake more of the legislative\nthan of the executive character, though it does not seem strictly to\nfall within the definition of either of them. The essence of the\nlegislative authority is to enact laws, or, in other words, to\nprescribe rules for the regulation of the society; while the\nexecution of the laws, and the employment of the common strength,\neither for this purpose or for the common defense, seem to comprise\nall the functions of the executive magistrate. The power of making\ntreaties is, plainly, neither the one nor the other. It relates\nneither to the execution of the subsisting laws, nor to the enaction\nof new ones; and still less to an exertion of the common strength.\nIts objects are CONTRACTS with foreign nations, which have the\nforce of law, but derive it from the obligations of good faith.\nThey are not rules prescribed by the sovereign to the subject, but\nagreements between sovereign and sovereign. The power in question\nseems therefore to form a distinct department, and to belong,\nproperly, neither to the legislative nor to the executive. The\nqualities elsewhere detailed as indispensable in the management of\nforeign negotiations, point out the Executive as the most fit agent\nin those transactions; while the vast importance of the trust, and\nthe operation of treaties as laws, plead strongly for the\nparticipation of the whole or a portion of the legislative body in\nthe office of making them.\n\nHowever proper or safe it may be in governments where the\nexecutive magistrate is an hereditary monarch, to commit to him the\nentire power of making treaties, it would be utterly unsafe and\nimproper to intrust that power to an elective magistrate of four\nyears' duration. It has been remarked, upon another occasion, and\nthe remark is unquestionably just, that an hereditary monarch,\nthough often the oppressor of his people, has personally too much\nstake in the government to be in any material danger of being\ncorrupted by foreign powers. But a man raised from the station of a\nprivate citizen to the rank of chief magistrate, possessed of a\nmoderate or slender fortune, and looking forward to a period not\nvery remote when he may probably be obliged to return to the station\nfrom which he was taken, might sometimes be under temptations to\nsacrifice his duty to his interest, which it would require\nsuperlative virtue to withstand. An avaricious man might be tempted\nto betray the interests of the state to the acquisition of wealth.\nAn ambitious man might make his own aggrandizement, by the aid of a\nforeign power, the price of his treachery to his constituents. The\nhistory of human conduct does not warrant that exalted opinion of\nhuman virtue which would make it wise in a nation to commit\ninterests of so delicate and momentous a kind, as those which\nconcern its intercourse with the rest of the world, to the sole\ndisposal of a magistrate created and circumstanced as would be a\nPresident of the United States.\n\nTo have intrusted the power of making treaties to the Senate\nalone, would have been to relinquish the benefits of the\nconstitutional agency of the President in the conduct of foreign\nnegotiations. It is true that the Senate would, in that case, have\nthe option of employing him in this capacity, but they would also\nhave the option of letting it alone, and pique or cabal might induce\nthe latter rather than the former. Besides this, the ministerial\nservant of the Senate could not be expected to enjoy the confidence\nand respect of foreign powers in the same degree with the\nconstitutional representatives of the nation, and, of course, would\nnot be able to act with an equal degree of weight or efficacy.\nWhile the Union would, from this cause, lose a considerable\nadvantage in the management of its external concerns, the people\nwould lose the additional security which would result from the\nco-operation of the Executive. Though it would be imprudent to\nconfide in him solely so important a trust, yet it cannot be doubted\nthat his participation would materially add to the safety of the\nsociety. It must indeed be clear to a demonstration that the joint\npossession of the power in question, by the President and Senate,\nwould afford a greater prospect of security, than the separate\npossession of it by either of them. And whoever has maturely\nweighed the circumstances which must concur in the appointment of a\nPresident, will be satisfied that the office will always bid fair to\nbe filled by men of such characters as to render their concurrence\nin the formation of treaties peculiarly desirable, as well on the\nscore of wisdom, as on that of integrity.\n\nThe remarks made in a former number, which have been alluded to\nin another part of this paper, will apply with conclusive force\nagainst the admission of the House of Representatives to a share in\nthe formation of treaties. The fluctuating and, taking its future\nincrease into the account, the multitudinous composition of that\nbody, forbid us to expect in it those qualities which are essential\nto the proper execution of such a trust. Accurate and comprehensive\nknowledge of foreign politics; a steady and systematic adherence to\nthe same views; a nice and uniform sensibility to national\ncharacter; decision, SECRECY, and despatch, are incompatible with\nthe genius of a body so variable and so numerous. The very\ncomplication 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\nof Representatives, and the greater length of time which it would\noften be necessary to keep them together when convened, to obtain\ntheir sanction in the progressive stages of a treaty, would be a\nsource of so great inconvenience and expense as alone ought to\ncondemn the project.\n\nThe only objection which remains to be canvassed, is that which\nwould substitute the proportion of two thirds of all the members\ncomposing the senatorial body, to that of two thirds of the members\nPRESENT. It has been shown, under the second head of our inquiries,\nthat all provisions which require more than the majority of any body\nto its resolutions, have a direct tendency to embarrass the\noperations of the government, and an indirect one to subject the\nsense of the majority to that of the minority. This consideration\nseems sufficient to determine our opinion, that the convention have\ngone as far in the endeavor to secure the advantage of numbers in\nthe formation of treaties as could have been reconciled either with\nthe activity of the public councils or with a reasonable regard to\nthe major sense of the community. If two thirds of the whole number\nof members had been required, it would, in many cases, from the\nnon-attendance of a part, amount in practice to a necessity of\nunanimity. And the history of every political establishment in\nwhich this principle has prevailed, is a history of impotence,\nperplexity, and disorder. Proofs of this position might be adduced\nfrom the examples of the Roman Tribuneship, the Polish Diet, and the\nStates-General of the Netherlands, did not an example at home render\nforeign precedents unnecessary.\n\nTo require a fixed proportion of the whole body would not, in\nall probability, contribute to the advantages of a numerous agency,\nbetter then merely to require a proportion of the attending members.\nThe former, by making a determinate number at all times requisite\nto a resolution, diminishes the motives to punctual attendance. The\nlatter, by making the capacity of the body to depend on a PROPORTION\nwhich may be varied by the absence or presence of a single member,\nhas the contrary effect. And as, by promoting punctuality, it tends\nto keep the body complete, there is great likelihood that its\nresolutions would generally be dictated by as great a number in this\ncase as in the other; while there would be much fewer occasions of\ndelay. It ought not to be forgotten that, under the existing\nConfederation, two members MAY, and usually DO, represent a State;\nwhence it happens that Congress, who now are solely invested with\nALL THE POWERS of the Union, rarely consist of a greater number of\npersons than would compose the intended Senate. If we add to this,\nthat as the members vote by States, and that where there is only a\nsingle member present from a State, his vote is lost, it will\njustify a supposition that the active voices in the Senate, where\nthe members are to vote individually, would rarely fall short in\nnumber of the active voices in the existing Congress. When, in\naddition to these considerations, we take into view the co-operation\nof the President, we shall not hesitate to infer that the people of\nAmerica would have greater security against an improper use of the\npower of making treaties, under the new Constitution, than they now\nenjoy under the Confederation. And when we proceed still one step\nfurther, and look forward to the probable augmentation of the\nSenate, by the erection of new States, we shall not only perceive\nample ground of confidence in the sufficiency of the members to\nwhose agency that power will be intrusted, but we shall probably be\nled to conclude that a body more numerous than the Senate would be\nlikely to become, would be very little fit for the proper discharge\nof the trust.\n\nPUBLIUS.\n", "date": null, "title": "The Treaty-Making Power of the Executive", "paper_id": 75, "venue": "For the Independent Journal"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE President is \"to NOMINATE, and, by and with the advice and\nconsent of the Senate, to appoint ambassadors, other public\nministers and consuls, judges of the Supreme Court, and all other\nofficers of the United States whose appointments are not otherwise\nprovided for in the Constitution. But the Congress may by law vest\nthe appointment of such inferior officers as they think proper, in\nthe President alone, or in the courts of law, or in the heads of\ndepartments. The President shall have power to fill up ALL\nVACANCIES which may happen DURING THE RECESS OF THE SENATE, by\ngranting commissions which shall EXPIRE at the end of their next\nsession.\"\n\nIt has been observed in a former paper, that \"the true test of\na good government is its aptitude and tendency to produce a good\nadministration.\" If the justness of this observation be admitted,\nthe mode of appointing the officers of the United States contained\nin the foregoing clauses, must, when examined, be allowed to be\nentitled to particular commendation. It is not easy to conceive a\nplan better calculated than this to promote a judicious choice of\nmen for filling the offices of the Union; and it will not need\nproof, that on this point must essentially depend the character of\nits administration.\n\nIt will be agreed on all hands, that the power of appointment,\nin ordinary cases, ought to be modified in one of three ways. It\nought either to be vested in a single man, or in a SELECT assembly\nof a moderate number; or in a single man, with the concurrence of\nsuch an assembly. The exercise of it by the people at large will be\nreadily admitted to be impracticable; as waiving every other\nconsideration, it would leave them little time to do anything else.\nWhen, therefore, mention is made in the subsequent reasonings of an\nassembly or body of men, what is said must be understood to relate\nto a select body or assembly, of the description already given. The\npeople collectively, from their number and from their dispersed\nsituation, cannot be regulated in their movements by that systematic\nspirit of cabal and intrigue, which will be urged as the chief\nobjections to reposing the power in question in a body of men.\n\nThose who have themselves reflected upon the subject, or who\nhave attended to the observations made in other parts of these\npapers, in relation to the appointment of the President, will, I\npresume, agree to the position, that there would always be great\nprobability of having the place supplied by a man of abilities, at\nleast respectable. Premising this, I proceed to lay it down as a\nrule, that one man of discernment is better fitted to analyze and\nestimate the peculiar qualities adapted to particular offices, than\na body of men of equal or perhaps even of superior discernment.\n\nThe sole and undivided responsibility of one man will naturally\nbeget a livelier sense of duty and a more exact regard to reputation.\nHe will, on this account, feel himself under stronger obligations,\nand more interested to investigate with care the qualities requisite\nto the stations to be filled, and to prefer with impartiality the\npersons who may have the fairest pretensions to them. He will have\nFEWER personal attachments to gratify, than a body of men who may\neach be supposed to have an equal number; and will be so much the\nless liable to be misled by the sentiments of friendship and of\naffection. A single well-directed man, by a single understanding,\ncannot be distracted and warped by that diversity of views,\nfeelings, and interests, which frequently distract and warp the\nresolutions of a collective body. There is nothing so apt to\nagitate 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\ntime happen to be made under such circumstances, will of course be\nthe result either of a victory gained by one party over the other,\nor of a compromise between the parties. In either case, the\nintrinsic merit of the candidate will be too often out of sight. In\nthe first, the qualifications best adapted to uniting the suffrages\nof the party, will be more considered than those which fit the\nperson for the station. In the last, the coalition will commonly\nturn upon some interested equivalent: \"Give us the man we wish for\nthis office, and you shall have the one you wish for that.\" This\nwill be the usual condition of the bargain. And it will rarely\nhappen that the advancement of the public service will be the\nprimary object either of party victories or of party negotiations.\n\nThe truth of the principles here advanced seems to have been\nfelt by the most intelligent of those who have found fault with the\nprovision made, in this respect, by the convention. They contend\nthat the President ought solely to have been authorized to make the\nappointments under the federal government. But it is easy to show,\nthat every advantage to be expected from such an arrangement would,\nin substance, be derived from the power of NOMINATION, which is\nproposed to be conferred upon him; while several disadvantages\nwhich might attend the absolute power of appointment in the hands of\nthat officer would be avoided. In the act of nomination, his\njudgment alone would be exercised; and as it would be his sole duty\nto point out the man who, with the approbation of the Senate, should\nfill an office, his responsibility would be as complete as if he\nwere to make the final appointment. There can, in this view, be no\ndifference others, who are to be the objects of our choice or\npreference. Hence, in every exercise of the power of appointing to\noffices, by an assembly of men, we must expect to see a full display\nof all the private and party likings and dislikes, partialities and\nantipathies, attachments and animosities, which are felt by those\nwho compose the assembly. The choice which may at any time happen\nto be made under such circumstances, will of course be the result\neither 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,\nwill be more considered than those which fit the person for the\nstation. In the last, the coalition will commonly turn upon some\ninterested equivalent: \"Give us the man we wish for this office,\nand you shall have the one you wish for that.\" This will be the\nusual condition of the bargain. And it will rarely happen that the\nadvancement of the public service will be the primary object either\nof party victories or of party negotiations.\n\nThe truth of the principles here advanced seems to have been\nfelt by the most intelligent of those who have found fault with the\nprovision made, in this respect, by the convention. They contend\nthat the President ought solely to have been authorized to make the\nappointments under the federal government. But it is easy to show,\nthat every advantage to be expected from such an arrangement would,\nin substance, be derived from the power of NOMINATION, which is\nproposed to be conferred upon him; while several disadvantages\nwhich might attend the absolute power of appointment in the hands of\nthat officer would be avoided. In the act of nomination, his\njudgment alone would be exercised; and as it would be his sole duty\nto point out the man who, with the approbation of the Senate, should\nfill an office, his responsibility would be as complete as if he\nwere to make the final appointment. There can, in this view, be no\ndifference between nominating and appointing. The same motives\nwhich would influence a proper discharge of his duty in one case,\nwould exist in the other. And as no man could be appointed but on\nhis previous nomination, every man who might be appointed would be,\nin fact, his choice.\n\nBut might not his nomination be overruled? I grant it might,\nyet this could only be to make place for another nomination by\nhimself. The person ultimately appointed must be the object of his\npreference, though perhaps not in the first degree. It is also not\nvery probable that his nomination would often be overruled. The\nSenate could not be tempted, by the preference they might feel to\nanother, to reject the one proposed; because they could not assure\nthemselves, that the person they might wish would be brought forward\nby a second or by any subsequent nomination. They could not even be\ncertain, that a future nomination would present a candidate in any\ndegree more acceptable to them; and as their dissent might cast a\nkind of stigma upon the individual rejected, and might have the\nappearance of a reflection upon the judgment of the chief\nmagistrate, it is not likely that their sanction would often be\nrefused, where there were not special and strong reasons for the\nrefusal.\n\nTo what purpose then require the co-operation of the Senate? I\nanswer, that the necessity of their concurrence would have a\npowerful, though, in general, a silent operation. It would be an\nexcellent check upon a spirit of favoritism in the President, and\nwould tend greatly to prevent the appointment of unfit characters\nfrom State prejudice, from family connection, from personal\nattachment, or from a view to popularity. In addition to this, it\nwould be an efficacious source of stability in the administration.\n\nIt will readily be comprehended, that a man who had himself the\nsole disposition of offices, would be governed much more by his\nprivate inclinations and interests, than when he was bound to submit\nthe propriety of his choice to the discussion and determination of a\ndifferent and independent body, and that body an entire branch of\nthe legislature. The possibility of rejection would be a strong\nmotive to care in proposing. The danger to his own reputation, and,\nin the case of an elective magistrate, to his political existence,\nfrom betraying a spirit of favoritism, or an unbecoming pursuit of\npopularity, to the observation of a body whose opinion would have\ngreat weight in forming that of the public, could not fail to\noperate as a barrier to the one and to the other. He would be both\nashamed and afraid to bring forward, for the most distinguished or\nlucrative stations, candidates who had no other merit than that of\ncoming from the same State to which he particularly belonged, or of\nbeing in some way or other personally allied to him, or of\npossessing the necessary insignificance and pliancy to render them\nthe obsequious instruments of his pleasure.\n\nTo this reasoning it has been objected that the President, by\nthe influence of the power of nomination, may secure the\ncomplaisance of the Senate to his views. This supposition of\nuniversal venalty in human nature is little less an error in\npolitical reasoning, than the supposition of universal rectitude.\nThe institution of delegated power implies, that there is a portion\nof virtue and honor among mankind, which may be a reasonable\nfoundation of confidence; and experience justifies the theory. It\nhas been found to exist in the most corrupt periods of the most\ncorrupt governments. The venalty of the British House of Commons\nhas been long a topic of accusation against that body, in the\ncountry to which they belong as well as in this; and it cannot be\ndoubted that the charge is, to a considerable extent, well founded.\nBut it is as little to be doubted, that there is always a large\nproportion of the body, which consists of independent and\npublic-spirited men, who have an influential weight in the councils\nof the nation. Hence it is (the present reign not excepted) that\nthe sense of that body is often seen to control the inclinations of\nthe monarch, both with regard to men and to measures. Though it\nmight therefore be allowable to suppose that the Executive might\noccasionally influence some individuals in the Senate, yet the\nsupposition, that he could in general purchase the integrity of the\nwhole body, would be forced and improbable. A man disposed to view\nhuman nature as it is, without either flattering its virtues or\nexaggerating its vices, will see sufficient ground of confidence in\nthe probity of the Senate, to rest satisfied, not only that it will\nbe impracticable to the Executive to corrupt or seduce a majority of\nits members, but that the necessity of its co-operation, in the\nbusiness 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\nshall during the time FOR WHICH HE WAS ELECTED, be appointed to any\ncivil office under the United States, which shall have been created,\nor the emoluments whereof shall have been increased, during such\ntime; and no person, holding any office under the United States,\nshall be a member of either house during his continuance in\noffice.\"\n\nPUBLIUS.\n", "date": "Tuesday, April 1, 1788", "title": "The Appointing Power of the Executive", "paper_id": 76, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIT HAS been mentioned as one of the advantages to be expected\nfrom the co-operation of the Senate, in the business of\nappointments, that it would contribute to the stability of the\nadministration. The consent of that body would be necessary to\ndisplace as well as to appoint. A change of the Chief Magistrate,\ntherefore, would not occasion so violent or so general a revolution\nin the officers of the government as might be expected, if he were\nthe sole disposer of offices. Where a man in any station had given\nsatisfactory evidence of his fitness for it, a new President would\nbe restrained from attempting a change in favor of a person more\nagreeable to him, by the apprehension that a discountenance of the\nSenate 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\nwhich connects the official existence of public men with the\napprobation or disapprobation of that body which, from the greater\npermanency of its own composition, will in all probability be less\nsubject to inconstancy than any other member of the government.\n\nTo this union of the Senate with the President, in the article\nof appointments, it has in some cases been suggested that it would\nserve to give the President an undue influence over the Senate, and\nin others that it would have an opposite tendency, a strong proof\nthat neither suggestion is true.\n\nTo state the first in its proper form, is to refute it. It\namounts to this: the President would have an improper INFLUENCE\nOVER the Senate, because the Senate would have the power of\nRESTRAINING him. This is an absurdity in terms. It cannot admit of\na doubt that the entire power of appointment would enable him much\nmore effectually to establish a dangerous empire over that body,\nthan a mere power of nomination subject to their control.\n\nLet us take a view of the converse of the proposition: \"the\nSenate would influence the Executive.\" As I have had occasion to\nremark in several other instances, the indistinctness of the\nobjection forbids a precise answer. In what manner is this\ninfluence to be exerted? In relation to what objects? The power of\ninfluencing a person, in the sense in which it is here used, must\nimply a power of conferring a benefit upon him. How could the\nSenate confer a benefit upon the President by the manner of\nemploying their right of negative upon his nominations? If it be\nsaid they might sometimes gratify him by an acquiescence in a\nfavorite choice, when public motives might dictate a different\nconduct, I answer, that the instances in which the President could\nbe personally interested in the result, would be too few to admit of\nhis being materially affected by the compliances of the Senate. The\nPOWER which can ORIGINATE the disposition of honors and emoluments,\nis more likely to attract than to be attracted by the POWER which\ncan merely obstruct their course. If by influencing the President\nbe meant RESTRAINING him, this is precisely what must have been\nintended. And it has been shown that the restraint would be\nsalutary, at the same time that it would not be such as to destroy a\nsingle advantage to be looked for from the uncontrolled agency of\nthat Magistrate. The right of nomination would produce all the good\nof that of appointment, and would in a great measure avoid its evils.\nUpon a comparison of the plan for the appointment of the\nofficers of the proposed government with that which is established\nby the constitution of this State, a decided preference must be\ngiven to the former. In that plan the power of nomination is\nunequivocally vested in the Executive. And as there would be a\nnecessity for submitting each nomination to the judgment of an\nentire branch of the legislature, the circumstances attending an\nappointment, from the mode of conducting it, would naturally become\nmatters of notoriety; and the public would be at no loss to\ndetermine what part had been performed by the different actors. The\nblame of a bad nomination would fall upon the President singly and\nabsolutely. The censure of rejecting a good one would lie entirely\nat the door of the Senate; aggravated by the consideration of their\nhaving counteracted the good intentions of the Executive. If an ill\nappointment should be made, the Executive for nominating, and the\nSenate for approving, would participate, though in different\ndegrees, in the opprobrium and disgrace.\n\nThe reverse of all this characterizes the manner of appointment\nin this State. The council of appointment consists of from three to\nfive persons, of whom the governor is always one. This small body,\nshut up in a private apartment, impenetrable to the public eye,\nproceed to the execution of the trust committed to them. It is\nknown that the governor claims the right of nomination, upon the\nstrength of some ambiguous expressions in the constitution; but it\nis not known to what extent, or in what manner he exercises it; nor\nupon what occasions he is contradicted or opposed. The censure of a\nbad appointment, on account of the uncertainty of its author, and\nfor want of a determinate object, has neither poignancy nor duration.\nAnd while an unbounded field for cabal and intrigue lies open, all\nidea of responsibility is lost. The most that the public can know,\nis that the governor claims the right of nomination; that TWO out\nof the inconsiderable number of FOUR men can too often be managed\nwithout much difficulty; that if some of the members of a\nparticular council should happen to be of an uncomplying character,\nit is frequently not impossible to get rid of their opposition by\nregulating the times of meeting in such a manner as to render their\nattendance inconvenient; and that from whatever cause it may\nproceed, a great number of very improper appointments are from time\nto time made. Whether a governor of this State avails himself of\nthe ascendant he must necessarily have, in this delicate and\nimportant part of the administration, to prefer to offices men who\nare best qualified for them, or whether he prostitutes that\nadvantage to the advancement of persons whose chief merit is their\nimplicit devotion to his will, and to the support of a despicable\nand dangerous system of personal influence, are questions which,\nunfortunately for the community, can only be the subjects of\nspeculation and conjecture.\n\nEvery mere council of appointment, however constituted, will be\na conclave, in which cabal and intrigue will have their full scope.\nTheir number, without an unwarrantable increase of expense, cannot\nbe large enough to preclude a facility of combination. And as each\nmember will have his friends and connections to provide for, the\ndesire of mutual gratification will beget a scandalous bartering of\nvotes and bargaining for places. The private attachments of one man\nmight easily be satisfied; but to satisfy the private attachments\nof a dozen, or of twenty men, would occasion a monopoly of all the\nprincipal employments of the government in a few families, and would\nlead more directly to an aristocracy or an oligarchy than any\nmeasure that could be contrived. If, to avoid an accumulation of\noffices, there was to be a frequent change in the persons who were\nto compose the council, this would involve the mischiefs of a\nmutable administration in their full extent. Such a council would\nalso be more liable to executive influence than the Senate, because\nthey would be fewer in number, and would act less immediately under\nthe public inspection. Such a council, in fine, as a substitute for\nthe plan of the convention, would be productive of an increase of\nexpense, a multiplication of the evils which spring from favoritism\nand intrigue in the distribution of public honors, a decrease of\nstability in the administration of the government, and a diminution\nof the security against an undue influence of the Executive. And\nyet such a council has been warmly contended for as an essential\namendment in the proposed Constitution.\n\nI could not with propriety conclude my observations on the\nsubject of appointments without taking notice of a scheme for which\nthere have appeared some, though but few advocates; I mean that of\nuniting the House of Representatives in the power of making them. I\nshall, however, do little more than mention it, as I cannot imagine\nthat it is likely to gain the countenance of any considerable part\nof the community. A body so fluctuating and at the same time so\nnumerous, can never be deemed proper for the exercise of that power.\nIts unfitness will appear manifest to all, when it is recollected\nthat in half a century it may consist of three or four hundred\npersons. All the advantages of the stability, both of the Executive\nand of the Senate, would be defeated by this union, and infinite\ndelays and embarrassments would be occasioned. The example of most\nof the States in their local constitutions encourages us to\nreprobate the idea.\n\nThe only remaining powers of the Executive are comprehended in\ngiving information to Congress of the state of the Union; in\nrecommending to their consideration such measures as he shall judge\nexpedient; in convening them, or either branch, upon extraordinary\noccasions; in adjourning them when they cannot themselves agree\nupon the time of adjournment; in receiving ambassadors and other\npublic ministers; in faithfully executing the laws; and in\ncommissioning all the officers of the United States.\n\nExcept some cavils about the power of convening EITHER house of\nthe legislature, and that of receiving ambassadors, no objection has\nbeen made to this class of authorities; nor could they possibly\nadmit of any. It required, indeed, an insatiable avidity for\ncensure to invent exceptions to the parts which have been excepted\nto. In regard to the power of convening either house of the\nlegislature, I shall barely remark, that in respect to the Senate at\nleast, we can readily discover a good reason for it. AS this body\nhas a concurrent power with the Executive in the article of\ntreaties, it might often be necessary to call it together with a\nview to this object, when it would be unnecessary and improper to\nconvene the House of Representatives. As to the reception of\nambassadors, what I have said in a former paper will furnish a\nsufficient answer.\n\nWe have now completed a survey of the structure and powers of\nthe executive department, which, I have endeavored to show,\ncombines, as far as republican principles will admit, all the\nrequisites to energy. The remaining inquiry is: Does it also\ncombine the requisites to safety, in a republican sense, a due\ndependence on the people, a due responsibility? The answer to this\nquestion has been anticipated in the investigation of its other\ncharacteristics, and is satisfactorily deducible from these\ncircumstances; from the election of the President once in four\nyears by persons immediately chosen by the people for that purpose;\nand 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\ncommon course of law. But these precautions, great as they are, are\nnot the only ones which the plan of the convention has provided in\nfavor of the public security. In the only instances in which the\nabuse of the executive authority was materially to be feared, the\nChief Magistrate of the United States would, by that plan, be\nsubjected to the control of a branch of the legislative body. What\nmore could be desired by an enlightened and reasonable people?\n\nPUBLIUS.\n", "date": "Friday, April 4, 1788", "title": "The Appointing Power Continued and Other Powers of the Executive Considered", "paper_id": 77, "venue": "From the New York Packet"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nWE PROCEED now to an examination of the judiciary department of\nthe proposed government.\n\nIn unfolding the defects of the existing Confederation, the\nutility and necessity of a federal judicature have been clearly\npointed out. It is the less necessary to recapitulate the\nconsiderations there urged, as the propriety of the institution in\nthe abstract is not disputed; the only questions which have been\nraised being relative to the manner of constituting it, and to its\nextent. To these points, therefore, our observations shall be\nconfined.\n\nThe manner of constituting it seems to embrace these several\nobjects: 1st. The mode of appointing the judges. 2d. The tenure by\nwhich they are to hold their places. 3d. The partition of the\njudiciary authority between different courts, and their relations to\neach other.\n\nFirst. As to the mode of appointing the judges; this is\nthe same with that of appointing the officers of the Union in\ngeneral, and has been so fully discussed in the two last numbers,\nthat nothing can be said here which would not be useless repetition.\n\nSecond. As to the tenure by which the judges are to hold\ntheir places; this chiefly concerns their duration in office; the\nprovisions for their support; the precautions for their\nresponsibility.\n\nAccording to the plan of the convention, all judges who may be\nappointed by the United States are to hold their offices DURING GOOD\nBEHAVIOR; which is conformable to the most approved of the State\nconstitutions and among the rest, to that of this State. Its\npropriety having been drawn into question by the adversaries of that\nplan, is no light symptom of the rage for objection, which disorders\ntheir imaginations and judgments. The standard of good behavior for\nthe continuance in office of the judicial magistracy, is certainly\none of the most valuable of the modern improvements in the practice\nof government. In a monarchy it is an excellent barrier to the\ndespotism of the prince; in a republic it is a no less excellent\nbarrier to the encroachments and oppressions of the representative\nbody. And it is the best expedient which can be devised in any\ngovernment, to secure a steady, upright, and impartial\nadministration of the laws.\n\nWhoever attentively considers the different departments of power\nmust perceive, that, in a government in which they are separated\nfrom each other, the judiciary, from the nature of its functions,\nwill always be the least dangerous to the political rights of the\nConstitution; because it will be least in a capacity to annoy or\ninjure them. The Executive not only dispenses the honors, but holds\nthe sword of the community. The legislature not only commands the\npurse, but prescribes the rules by which the duties and rights of\nevery citizen are to be regulated. The judiciary, on the contrary,\nhas no influence over either the sword or the purse; no direction\neither of the strength or of the wealth of the society; and can\ntake no active resolution whatever. It may truly be said to have\nneither FORCE nor WILL, but merely judgment; and must ultimately\ndepend upon the aid of the executive arm even for the efficacy of\nits judgments.\n\nThis simple view of the matter suggests several important\nconsequences. It proves incontestably, that the judiciary is beyond\ncomparison the weakest of the three departments of power [1]; that\nit can never attack with success either of the other two; and that\nall possible care is requisite to enable it to defend itself against\ntheir attacks. It equally proves, that though individual oppression\nmay now and then proceed from the courts of justice, the general\nliberty of the people can never be endangered from that quarter; I\nmean so long as the judiciary remains truly distinct from both the\nlegislature and the Executive. For I agree, that \"there is no\nliberty, if the power of judging be not separated from the\nlegislative and executive powers.\" [2] And it proves, in the last\nplace, that as liberty can have nothing to fear from the judiciary\nalone, but would have every thing to fear from its union with either\nof the other departments; that as all the effects of such a union\nmust ensue from a dependence of the former on the latter,\nnotwithstanding a nominal and apparent separation; that as, from\nthe natural feebleness of the judiciary, it is in continual jeopardy\nof being overpowered, awed, or influenced by its co-ordinate\nbranches; and that as nothing can contribute so much to its\nfirmness and independence as permanency in office, this quality may\ntherefore be justly regarded as an indispensable ingredient in its\nconstitution, and, in a great measure, as the citadel of the public\njustice 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.\nLimitations of this kind can be preserved in practice no other way\nthan through the medium of courts of justice, whose duty it must be\nto declare all acts contrary to the manifest tenor of the\nConstitution void. Without this, all the reservations of particular\nrights or privileges would amount to nothing.\n\nSome perplexity respecting the rights of the courts to pronounce\nlegislative acts void, because contrary to the Constitution, has\narisen from an imagination that the doctrine would imply a\nsuperiority of the judiciary to the legislative power. It is urged\nthat the authority which can declare the acts of another void, must\nnecessarily be superior to the one whose acts may be declared void.\nAs this doctrine is of great importance in all the American\nconstitutions, a brief discussion of the ground on which it rests\ncannot be unacceptable.\n\nThere is no position which depends on clearer principles, than\nthat every act of a delegated authority, contrary to the tenor of\nthe commission under which it is exercised, is void. No legislative\nact, therefore, contrary to the Constitution, can be valid. To deny\nthis, would be to affirm, that the deputy is greater than his\nprincipal; that the servant is above his master; that the\nrepresentatives of the people are superior to the people themselves;\nthat men acting by virtue of powers, may do not only what their\npowers do not authorize, but what they 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\nbe answered, that this cannot be the natural presumption, where it\nis not to be collected from any particular provisions in the\nConstitution. It is not otherwise to be supposed, that the\nConstitution could intend to enable the representatives of the\npeople to substitute their WILL to that of their constituents. It\nis far more rational to suppose, that the courts were designed to be\nan intermediate body between the people and the legislature, in\norder, among other things, to keep the latter within the limits\nassigned to their authority. The interpretation of the laws is the\nproper and peculiar province of the courts. A constitution is, in\nfact, and must be regarded by the judges, as a fundamental law. It\ntherefore belongs to them to ascertain its meaning, as well as the\nmeaning of any particular act proceeding from the legislative body.\nIf there should happen to be an irreconcilable variance between the\ntwo, that which has the superior obligation and validity ought, of\ncourse, to be preferred; or, in other words, the Constitution ought\nto be preferred to the statute, the intention of the people to the\nintention of their agents.\n\nNor does this conclusion by any means suppose a superiority of\nthe judicial to the legislative power. It only supposes that the\npower of the people is superior to both; and that where the will of\nthe legislature, declared in its statutes, stands in opposition to\nthat of the people, declared in the Constitution, the judges ought\nto be governed by the latter rather than the former. They ought to\nregulate their decisions by the fundamental laws, rather than by\nthose which are not 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\ntime, clashing in whole or in part with each other, and neither of\nthem containing any repealing clause or expression. In such a case,\nit is the province of the courts to liquidate and fix their meaning\nand operation. So far as they can, by any fair construction, be\nreconciled to each other, reason and law conspire to dictate that\nthis should be done; where this is impracticable, it becomes a\nmatter of necessity to give effect to one, in exclusion of the other.\nThe rule which has obtained in the courts for determining their\nrelative validity is, that the last in order of time shall be\npreferred to the first. But this is a mere rule of construction,\nnot derived from any positive law, but from the nature and reason of\nthe thing. It is a rule not enjoined upon the courts by legislative\nprovision, but adopted by themselves, as consonant to truth and\npropriety, for the direction of their conduct as interpreters of the\nlaw. They thought it reasonable, that between the interfering acts\nof an EQUAL authority, that which was the last indication of its\nwill should have the preference.\n\nBut in regard to the interfering acts of a superior and\nsubordinate authority, of an original and derivative power, the\nnature and reason of the thing indicate the converse of that rule as\nproper to be followed. They teach us that the prior act of a\nsuperior ought to be preferred to the subsequent act of an inferior\nand subordinate authority; and that accordingly, whenever a\nparticular statute contravenes the Constitution, it will be the duty\nof the judicial tribunals to adhere to the latter and disregard the\nformer.\n\nIt can be of no weight to say that the courts, on the pretense\nof a repugnancy, may substitute their own pleasure to the\nconstitutional intentions of the legislature. This might as well\nhappen in the case of two contradictory statutes; or it might as\nwell happen in every adjudication upon any single statute. The\ncourts must declare the sense of the law; and if they should be\ndisposed to exercise WILL instead of JUDGMENT, the consequence would\nequally be the substitution of their pleasure to that of the\nlegislative body. The observation, if it prove any thing, would\nprove that there ought to be no judges distinct from that body.\n\nIf, then, the courts of justice are to be considered as the\nbulwarks of a limited Constitution against legislative\nencroachments, this consideration will afford a strong argument for\nthe permanent tenure of judicial offices, since nothing will\ncontribute so much as this to that independent spirit in the judges\nwhich must be essential to the faithful performance of so arduous a\nduty.\n\nThis independence of the judges is equally requisite to guard\nthe Constitution and the rights of individuals from the effects of\nthose ill humors, which the arts of designing men, or the influence\nof particular conjunctures, sometimes disseminate among the people\nthemselves, and which, though they speedily give place to better\ninformation, and more deliberate reflection, have a tendency, in the\nmeantime, to occasion dangerous innovations in the government, and\nserious oppressions of the minor party in the community. Though I\ntrust the friends of the proposed Constitution will never concur\nwith its enemies, [3] in questioning that fundamental principle of\nrepublican government, which admits the right of the people to alter\nor abolish the established Constitution, whenever they find it\ninconsistent with their happiness, yet it is not to be inferred from\nthis principle, that the representatives of the people, whenever a\nmomentary inclination happens to lay hold of a majority of their\nconstituents, incompatible with the provisions in the existing\nConstitution, would, on that account, be justifiable in a violation\nof those provisions; or that the courts would be under a greater\nobligation to connive at infractions in this shape, than when they\nhad proceeded wholly from the cabals of the representative body.\nUntil the people have, by some solemn and authoritative act,\nannulled or changed the established form, it is binding upon\nthemselves collectively, as well as individually; and no\npresumption, or even knowledge, of their sentiments, can warrant\ntheir representatives in a departure from it, prior to such an act.\nBut it is easy to see, that it would require an uncommon portion of\nfortitude in the judges to do their duty as faithful guardians of\nthe Constitution, where legislative invasions of it had been\ninstigated by the major voice of the community.\n\nBut it is not with a view to infractions of the Constitution\nonly, that the independence of the judges may be an essential\nsafeguard against the effects of occasional ill humors in the\nsociety. These sometimes extend no farther than to the injury of\nthe private rights of particular classes of citizens, by unjust and\npartial laws. Here also the firmness of the judicial magistracy is\nof vast importance in mitigating the severity and confining the\noperation of such laws. It not only serves to moderate the\nimmediate mischiefs of those which may have been passed, but it\noperates as a check upon the legislative body in passing them; who,\nperceiving that obstacles to the success of iniquitous intention are\nto 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\nmore influence upon the character of our governments, than but few\nmay be aware of. The benefits of the integrity and moderation of\nthe judiciary have already been felt in more States than one; and\nthough they may have displeased those whose sinister expectations\nthey may have disappointed, they must have commanded the esteem and\napplause of all the virtuous and disinterested. Considerate men, of\nevery description, ought to prize whatever will tend to beget or\nfortify that temper in the courts: as no man can be sure that he\nmay not be to-morrow the victim of a spirit of injustice, by which\nhe may be a gainer to-day. And every man must now feel, that the\ninevitable tendency of such a spirit is to sap the foundations of\npublic and private confidence, and to introduce in its stead\nuniversal distrust and distress.\n\nThat inflexible and uniform adherence to the rights of the\nConstitution, and of individuals, which we perceive to be\nindispensable in the courts of justice, can certainly not be\nexpected from judges who hold their offices by a temporary\ncommission. Periodical appointments, however regulated, or by\nwhomsoever made, would, in some way or other, be fatal to their\nnecessary independence. If the power of making them was committed\neither to the Executive or legislature, there would be danger of an\nimproper complaisance to the branch which possessed it; if to both,\nthere would be an unwillingness to hazard the displeasure of either;\nif to the people, or to persons chosen by them for the special\npurpose, there would be too great a disposition to consult\npopularity, to justify a reliance that nothing would be consulted\nbut the Constitution and the laws.\n\nThere is yet a further and a weightier reason for the permanency\nof the judicial offices, which is deducible from the nature of the\nqualifications they require. It has been frequently remarked, with\ngreat propriety, that a voluminous code of laws is one of the\ninconveniences necessarily connected with the advantages of a free\ngovernment. To avoid an arbitrary discretion in the courts, it is\nindispensable that they should be bound down by strict rules and\nprecedents, which serve to define and point out their duty in every\nparticular case that comes before them; and it will readily be\nconceived from the variety of controversies which grow out of the\nfolly and wickedness of mankind, that the records of those\nprecedents must unavoidably swell to a very considerable bulk, and\nmust demand long and laborious study to acquire a competent\nknowledge of them. Hence it is, that there can be but few men in\nthe society who will have sufficient skill in the laws to qualify\nthem for the stations of judges. And making the proper deductions\nfor the ordinary depravity of human nature, the number must be still\nsmaller of those who unite the requisite integrity with the\nrequisite knowledge. These considerations apprise us, that the\ngovernment can have no great option between fit character; and that\na temporary duration in office, which would naturally discourage\nsuch characters from quitting a lucrative line of practice to accept\na seat on the bench, would have a tendency to throw the\nadministration of justice into hands less able, and less well\nqualified, to conduct it with utility and dignity. In the present\ncircumstances of this country, and in those in which it is likely to\nbe for a long time to come, the disadvantages on this score would be\ngreater than they may at first sight appear; but it must be\nconfessed, that they are far inferior to those which present\nthemselves under the other aspects of the subject.\n\nUpon the whole, there can be no room to doubt that the\nconvention acted wisely in copying from the models of those\nconstitutions which have established GOOD BEHAVIOR as the tenure of\ntheir judicial offices, in point of duration; and that so far from\nbeing blamable on this account, their plan would have been\ninexcusably defective, if it had wanted this important feature of\ngood government. The experience of Great Britain affords an\nillustrious comment on the excellence of the institution.\n\nPUBLIUS.\n\n1. The celebrated Montesquieu, speaking of them, says: \"Of the\nthree powers above mentioned, the judiciary is next to\nnothing.\" \"Spirit of Laws.\" vol. i., page 186.\n\n2. Idem, page 181.\n\n3. Vide \"Protest of the Minority of the Convention of\nPennsylvania,\" Martin's Speech, etc.\n", "date": null, "title": "The Judiciary Department", "paper_id": 78, "venue": "From McLEAN'S Edition, New York"}
{"author": "HAMILTON", "text": "To 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.\nThe remark made in relation to the President is equally applicable\nhere. In the general course of human nature, A POWER OVER A MAN's\nSUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope\nto see realized in practice, the complete separation of the judicial\nfrom the legislative power, in any system which leaves the former\ndependent for pecuniary resources on the occasional grants of the\nlatter. The enlightened friends to good government in every State,\nhave seen cause to lament the want of precise and explicit\nprecautions in the State constitutions on this head. Some of these\nindeed have declared that PERMANENT [1] salaries should be\nestablished for the judges; but the experiment has in some\ninstances shown that such expressions are not sufficiently definite\nto preclude legislative evasions. Something still more positive and\nunequivocal has been evinced to be requisite. The plan of the\nconvention accordingly has provided that the judges of the United\nStates \"shall at STATED TIMES receive for their services a\ncompensation which shall not be DIMINISHED during their continuance\nin office.\"\n\nThis, all circumstances considered, is the most eligible\nprovision that could have been devised. It will readily be\nunderstood that the fluctuations in the value of money and in the\nstate of society rendered a fixed rate of compensation in the\nConstitution inadmissible. What might be extravagant to-day, might\nin half a century become penurious and inadequate. It was therefore\nnecessary to leave it to the discretion of the legislature to vary\nits provisions in conformity to the variations in circumstances, yet\nunder such restrictions as to put it out of the power of that body\nto change the condition of the individual for the worse. A man may\nthen be sure of the ground upon which he stands, and can never be\ndeterred from his duty by the apprehension of being placed in a less\neligible situation. The clause which has been quoted combines both\nadvantages. The salaries of judicial officers may from time to time\nbe altered, as occasion shall require, yet so as never to lessen the\nallowance with which any particular judge comes into office, in\nrespect to him. It will be observed that a difference has been made\nby the convention between the compensation of the President and of\nthe judges, That of the former can neither be increased nor\ndiminished; that of the latter can only not be diminished. This\nprobably arose from the difference in the duration of the respective\noffices. As the President is to be elected for no more than four\nyears, it can rarely happen that an adequate salary, fixed at the\ncommencement of that period, will not continue to be such to its end.\nBut with regard to the judges, who, if they behave properly, will\nbe secured in their places for life, it may well happen, especially\nin the early stages of the government, that a stipend, which would\nbe very sufficient at their first appointment, would become too\nsmall in the progress of their service.\n\nThis provision for the support of the judges bears every mark of\nprudence and efficacy; and it may be safely affirmed that, together\nwith the permanent tenure of their offices, it affords a better\nprospect of their independence than is discoverable in the\nconstitutions of any of the States in regard to their own judges.\n\nThe precautions for their responsibility are comprised in the\narticle respecting impeachments. They are liable to be impeached\nfor malconduct by the House of Representatives, and tried by the\nSenate; and, if convicted, may be dismissed from office, and\ndisqualified for holding any other. This is the only provision on\nthe point which is consistent with the necessary independence of the\njudicial character, and is the only one which we find in our own\nConstitution in respect to our own judges.\n\nThe want of a provision for removing the judges on account of\ninability has been a subject of complaint. But all considerate men\nwill be sensible that such a provision would either not be practiced\nupon or would be more liable to abuse than calculated to answer any\ngood purpose. The mensuration of the faculties of the mind has, I\nbelieve, no place in the catalogue of known arts. An attempt to fix\nthe boundary between the regions of ability and inability, would\nmuch oftener give scope to personal and party attachments and\nenmities than advance the interests of justice or the public good.\nThe result, except in the case of insanity, must for the most part\nbe arbitrary; and insanity, without any formal or express\nprovision, may be safely pronounced to be a virtual disqualification.\n\nThe constitution of New York, to avoid investigations that must\nforever be vague and dangerous, has taken a particular age as the\ncriterion of inability. No man can be a judge beyond sixty. I\nbelieve there are few at present who do not disapprove of this\nprovision. There is no station, in relation to which it is less\nproper than to that of a judge. The deliberating and comparing\nfaculties generally preserve their strength much beyond that period\nin men who survive it; and when, in addition to this circumstance,\nwe consider how few there are who outlive the season of intellectual\nvigor, and how improbable it is that any considerable portion of the\nbench, whether more or less numerous, should be in such a situation\nat the same time, we shall be ready to conclude that limitations of\nthis sort have little to recommend them. In a republic, where\nfortunes are not affluent, and pensions not expedient, the\ndismission of men from stations in which they have served their\ncountry long and usefully, on which they depend for subsistence, and\nfrom which it will be too late to resort to any other occupation for\na livelihood, ought to have some better apology to humanity than is\nto be found in the imaginary danger of a superannuated bench.\n\nPUBLIUS.\n\n1. Vide \"Constitution of Massachusetts,\" chapter 2, section\nI, article 13.\n", "date": null, "title": "The Judiciary Continued", "paper_id": 79, "venue": "From MCLEAN's Edition, New York"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTo JUDGE with accuracy of the proper extent of the federal\njudicature, it will be necessary to consider, in the first place,\nwhat are its proper objects.\n\nIt seems scarcely to admit of controversy, that the judicary\nauthority of the Union ought to extend to these several descriptions\nof cases: 1st, to all those which arise out of the laws of the\nUnited States, passed in pursuance of their just and constitutional\npowers of legislation; 2d, to all those which concern the execution\nof the provisions expressly contained in the articles of Union; 3d,\nto all those in which the United States are a party; 4th, to all\nthose which involve the PEACE of the CONFEDERACY, whether they\nrelate to the intercourse between the United States and foreign\nnations, or to that between the States themselves; 5th, to all\nthose which originate on the high seas, and are of admiralty or\nmaritime jurisdiction; and, lastly, to all those in which the State\ntribunals cannot be supposed to be impartial and unbiased.\n\nThe first point depends upon this obvious consideration, that\nthere ought always to be a constitutional method of giving efficacy\nto constitutional provisions. What, for instance, would avail\nrestrictions on the authority of the State legislatures, without\nsome constitutional mode of enforcing the observance of them? The\nStates, by the plan of the convention, are prohibited from doing a\nvariety of things, some of which are incompatible with the interests\nof the Union, and others with the principles of good government.\nThe imposition of duties on imported articles, and the emission of\npaper money, are specimens of each kind. No man of sense will\nbelieve, that such prohibitions would be scrupulously regarded,\nwithout some effectual power in the government to restrain or\ncorrect the infractions of them. This power must either be a direct\nnegative on the State laws, or an authority in the federal courts to\noverrule 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\nformer, and, I presume, will be most agreeable to the States.\n\nAs to the second point, it is impossible, by any argument or\ncomment, to make it clearer than it is in itself. If there are such\nthings as political axioms, the propriety of the judicial power of a\ngovernment being coextensive with its legislative, may be ranked\namong the number. The mere necessity of uniformity in the\ninterpretation of the national laws, decides the question. Thirteen\nindependent courts of final jurisdiction over the same causes,\narising upon the same laws, is a hydra in government, from which\nnothing but contradiction and confusion can proceed.\n\nStill less need be said in regard to the third point.\nControversies between the nation and its members or citizens, can\nonly be properly referred to the national tribunals. Any other plan\nwould be contrary to reason, to precedent, and to decorum.\n\nThe fourth point rests on this plain proposition, that the peace\nof the WHOLE ought not to be left at the disposal of a PART. The\nUnion will undoubtedly be answerable to foreign powers for the\nconduct of its members. And the responsibility for an injury ought\never to be accompanied with the faculty of preventing it. As the\ndenial or perversion of justice by the sentences of courts, as well\nas in any other manner, is with reason classed among the just causes\nof war, it will follow that the federal judiciary ought to have\ncognizance of all causes in which the citizens of other countries\nare concerned. This is not less essential to the preservation of\nthe public faith, than to the security of the public tranquillity.\nA distinction may perhaps be imagined between cases arising upon\ntreaties and the laws of nations and those which may stand merely on\nthe footing of the municipal law. The former kind may be supposed\nproper for the federal jurisdiction, the latter for that of the\nStates. But it is at least problematical, whether an unjust\nsentence against a foreigner, where the subject of controversy was\nwholly 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\ngreat a proportion of the cases in which foreigners are parties,\ninvolve national questions, that it is by far most safe and most\nexpedient to refer all those in which they are concerned to the\nnational tribunals.\n\nThe power of determining causes between two States, between one\nState and the citizens of another, and between the citizens of\ndifferent States, is perhaps not less essential to the peace of the\nUnion than that which has been just examined. History gives us a\nhorrid picture of the dissensions and private wars which distracted\nand desolated Germany prior to the institution of the Imperial\nChamber by Maximilian, towards the close of the fifteenth century;\nand informs us, at the same time, of the vast influence of that\ninstitution in appeasing the disorders and establishing the\ntranquillity of the empire. This was a court invested with\nauthority to decide finally all differences among the members of the\nGermanic body.\n\nA method of terminating territorial disputes between the States,\nunder the authority of the federal head, was not unattended to, even\nin the imperfect system by which they have been hitherto held\ntogether. But there are many other sources, besides interfering\nclaims of boundary, from which bickerings and animosities may spring\nup among the members of the Union. To some of these we have been\nwitnesses in the course of our past experience. It will readily be\nconjectured that I allude to the fraudulent laws which have been\npassed in too many of the States. And though the proposed\nConstitution establishes particular guards against the repetition of\nthose instances which have heretofore made their appearance, yet it\nis warrantable to apprehend that the spirit which produced them will\nassume new shapes, that could not be foreseen nor specifically\nprovided against. Whatever practices may have a tendency to disturb\nthe 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\nof each State shall be entitled to all the privileges and immunities\nof citizens of the several States.\" And if it be a just principle\nthat every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS\nOWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order\nto the inviolable maintenance of that equality of privileges and\nimmunities to which the citizens of the Union will be entitled, the\nnational judiciary ought to preside in all cases in which one State\nor its citizens are opposed to another State or its citizens. To\nsecure the full effect of so fundamental a provision against all\nevasion and subterfuge, it is necessary that its construction should\nbe committed to that tribunal which, having no local attachments,\nwill be likely to be impartial between the different States and\ntheir citizens, and which, owing its official existence to the\nUnion, will never be likely to feel any bias inauspicious to the\nprinciples on which it is founded.\n\nThe fifth point will demand little animadversion. The most\nbigoted idolizers of State authority have not thus far shown a\ndisposition to deny the national judiciary the cognizances of\nmaritime causes. These so generally depend on the laws of nations,\nand so commonly affect the rights of foreigners, that they fall\nwithin the considerations which are relative to the public peace.\nThe most important part of them are, by the present Confederation,\nsubmitted to federal jurisdiction.\n\nThe reasonableness of the agency of the national courts in cases\nin which the State tribunals cannot be supposed to be impartial,\nspeaks for itself. No man ought certainly to be a judge in his own\ncause, or in any cause in respect to which he has the least interest\nor bias. This principle has no inconsiderable weight in designating\nthe federal courts as the proper tribunals for the determination of\ncontroversies between different States and their citizens. And it\nought to have the same operation in regard to some cases between\ncitizens of the same State. Claims to land under grants of\ndifferent States, founded upon adverse pretensions of boundary, are\nof this description. The courts of neither of the granting States\ncould be expected to be unbiased. The laws may have even prejudged\nthe question, and tied the courts down to decisions in favor of the\ngrants of the State to which they belonged. And even where this had\nnot been done, it would be natural that the judges, as men, should\nfeel a strong predilection to the claims of their own government.\n\nHaving thus laid down and discussed the principles which ought\nto regulate the constitution of the federal judiciary, we will\nproceed to test, by these principles, the particular powers of\nwhich, according to the plan of the convention, it is to be composed.\nIt is to comprehend \"all cases in law and equity arising under\nthe Constitution, the laws of the United States, and treaties made,\nor which shall be made, under their authority; to all cases\naffecting ambassadors, other public ministers, and consuls; to all\ncases of admiralty and maritime jurisdiction; to controversies to\nwhich the United States shall be a party; to controversies between\ntwo or more States; between a State and citizens of another State;\nbetween citizens of different States; between citizens of the same\nState claiming lands and grants of different States; and between a\nState or the citizens thereof and foreign states, citizens, and\nsubjects.\" This constitutes the entire mass of the judicial\nauthority 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\nCONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds\nwith the two first classes of causes, which have been enumerated, as\nproper for the jurisdiction of the United States. It has been\nasked, what is meant by \"cases arising under the Constitution,\" in\ncontradiction from those \"arising under the laws of the United\nStates\"? The difference has been already explained. All the\nrestrictions upon the authority of the State legislatures furnish\nexamples of it. They are not, for instance, to emit paper money;\nbut the interdiction results from the Constitution, and will have\nno connection with any law of the United States. Should paper\nmoney, notwithstanding, be emited, the controversies concerning it\nwould be cases arising under the Constitution and not the laws of\nthe United States, in the ordinary signification of the terms. This\nmay serve as a sample of the whole.\n\nIt has also been asked, what need of the word \"equity What\nequitable causes can grow out of the Constitution and laws of the\nUnited States? There is hardly a subject of litigation between\nindividuals, which may not involve those ingredients of FRAUD,\nACCIDENT, TRUST, or HARDSHIP, which would render the matter an\nobject of equitable rather than of legal jurisdiction, as the\ndistinction is known and established in several of the States. It\nis the peculiar province, for instance, of a court of equity to\nrelieve against what are called hard bargains: these are contracts\nin which, though there may have been no direct fraud or deceit,\nsufficient to invalidate them in a court of law, yet there may have\nbeen some undue and unconscionable advantage taken of the\nnecessities or misfortunes of one of the parties, which a court of\nequity 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\nof different States, may afford another example of the necessity of\nan equitable jurisdiction in the federal courts. This reasoning may\nnot be so palpable in those States where the formal and technical\ndistinction between LAW and EQUITY is not maintained, as in this\nState, where it is exemplified 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\nauthority of the United States, and to all cases affecting\nambassadors, other public ministers, and consuls. These belong to\nthe fourth class of the enumerated cases, as they have an evident\nconnection with the preservation of the national peace.\n\nThird. To cases of admiralty and maritime jurisdiction.\nThese form, altogether, the fifth of the enumerated classes of\ncauses proper for the cognizance of the national courts.\n\nFourth. To controversies to which the United States shall be\na party. These constitute the third of those classes.\n\nFifth. To controversies between two or more States; between\na State and citizens of another State; between citizens of\ndifferent States. These belong to the fourth of those classes, and\npartake, in some measure, of the nature of the last.\n\nSixth. To cases between the citizens of the same State,\nCLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within\nthe last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED\nCONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES\nBETWEEN THE CITIZENS OF THE SAME STATE.\n\nSeventh. To cases between a State and the citizens thereof,\nand foreign States, citizens, or subjects. These have been already\nexplained to belong to the fourth of the enumerated classes, and\nhave been shown to be, in a peculiar manner, the proper subjects of\nthe national judicature.\n\nFrom this review of the particular powers of the federal\njudiciary, as marked out in the Constitution, it appears that they\nare all conformable to the principles which ought to have governed\nthe structure of that department, and which were necessary to the\nperfection of the system. If some partial inconviences should\nappear to be connected with the incorporation of any of them into\nthe plan, it ought to be recollected that the national legislature\nwill have ample authority to make such EXCEPTIONS, and to prescribe\nsuch regulations as will be calculated to obviate or remove these\ninconveniences. The possibility of particular mischiefs can never\nbe viewed, by a wellinformed mind, as a solid objection to a general\nprinciple, which is calculated to avoid general mischiefs and to\nobtain general advantages.\n\nPUBLIUS.\n", "date": null, "title": "The Powers of the Judiciary", "paper_id": 80, "venue": "From McLEAN's Edition, New York"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nLET US now return to the partition of the judiciary authority\nbetween different courts, and their relations to each other,\n\"The judicial power of the United States is\" (by the plan of\nthe convention) \"to be vested in one Supreme Court, and in such\ninferior courts as the Congress may, from time to time, ordain and\nestablish.\" [1]\n\nThat there ought to be one court of supreme and final\njurisdiction, is a proposition which is not likely to be contested.\nThe reasons for it have been assigned in another place, and are too\nobvious to need repetition. The only question that seems to have\nbeen raised concerning it, is, whether it ought to be a distinct\nbody or a branch of the legislature. The same contradiction is\nobservable in regard to this matter which has been remarked in\nseveral other cases. The very men who object to the Senate as a\ncourt of impeachments, on the ground of an improper intermixture of\npowers, advocate, by implication at least, the propriety of vesting\nthe ultimate decision of all causes, in the whole or in a part of\nthe legislative body.\n\nThe arguments, or rather suggestions, upon which this charge is\nfounded, are to this effect: \"The authority of the proposed\nSupreme Court of the United States, which is to be a separate and\nindependent body, will be superior to that of the legislature. The\npower of construing the laws according to the SPIRIT of the\nConstitution, will enable that court to mould them into whatever\nshape it may think proper; especially as its decisions will not be\nin any manner subject to the revision or correction of the\nlegislative body. This is as unprecedented as it is dangerous. In\nBritain, the judical power, in the last resort, resides in the House\nof Lords, which is a branch of the legislature; and this part of\nthe British government has been imitated in the State constitutions\nin general. The Parliament of Great Britain, and the legislatures\nof the several States, can at any time rectify, by law, the\nexceptionable decisions of their respective courts. But the errors\nand usurpations of the Supreme Court of the United States will be\nuncontrollable and remediless.\" This, upon examination, will be\nfound to be made up altogether of false reasoning upon misconceived\nfact.\n\nIn the first place, there is not a syllable in the plan under\nconsideration which DIRECTLY empowers the national courts to\nconstrue the laws according to the spirit of the Constitution, or\nwhich gives them any greater latitude in this respect than may be\nclaimed by the courts of every State. I admit, however, that the\nConstitution ought to be the standard of construction for the laws,\nand that wherever there is an evident opposition, the laws ought to\ngive place to the Constitution. But this doctrine is not deducible\nfrom any circumstance peculiar to the plan of the convention, but\nfrom the general theory of a limited Constitution; and as far as it\nis true, is equally applicable to most, if not to all the State\ngovernments. There can be no objection, therefore, on this account,\nto the federal judicature which will not lie against the local\njudicatures in general, and which will not serve to condemn every\nconstitution that attempts to set bounds to legislative discretion.\n\nBut perhaps the force of the objection may be thought to consist\nin the particular organization of the Supreme Court; in its being\ncomposed of a distinct body of magistrates, instead of being one of\nthe branches of the legislature, as in the government of Great\nBritain and that of the State. To insist upon this point, the\nauthors of the objection must renounce the meaning they have labored\nto annex to the celebrated maxim, requiring a separation of the\ndepartments of power. It shall, nevertheless, be conceded to them,\nagreeably to the interpretation given to that maxim in the course of\nthese papers, that it is not violated by vesting the ultimate power\nof judging in a PART of the legislative body. But though this be\nnot an absolute violation of that excellent rule, yet it verges so\nnearly upon it, as on this account alone to be less eligible than\nthe mode preferred by the convention. From a body which had even a\npartial agency in passing bad laws, we could rarely expect a\ndisposition 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\nthis all. Every reason which recommends the tenure of good behavior\nfor judicial offices, militates against placing the judiciary power,\nin the last resort, in a body composed of men chosen for a limited\nperiod. There is an absurdity in referring the determination of\ncauses, in the first instance, to judges of permanent standing; in\nthe last, to those of a temporary and mutable constitution. And\nthere is a still greater absurdity in subjecting the decisions of\nmen, selected for their knowledge of the laws, acquired by long and\nlaborious study, to the revision and control of men who, for want of\nthe same advantage, cannot but be deficient in that knowledge. The\nmembers of the legislature will rarely be chosen with a view to\nthose qualifications which fit men for the stations of judges; and\nas, on this account, there will be great reason to apprehend all the\nill consequences of defective information, so, on account of the\nnatural propensity of such bodies to party divisions, there will be\nno less reason to fear that the pestilential breath of faction may\npoison the fountains of justice. The habit of being continually\nmarshalled on opposite sides will be too apt to stifle the voice\nboth of law and of equity.\n\nThese considerations teach us to applaud the wisdom of those\nStates who have committed the judicial power, in the last resort,\nnot to a part of the legislature, but to distinct and independent\nbodies of men. Contrary to the supposition of those who have\nrepresented the plan of the convention, in this respect, as novel\nand unprecedented, it is but a copy of the constitutions of New\nHampshire, Massachusetts, Pennsylvania, Delaware, Maryland,\nVirginia, North Carolina, South Carolina, and Georgia; and the\npreference which has been given to those models is highly to be\ncommended.\n\nIt is not true, in the second place, that the Parliament of\nGreat Britain, or the legislatures of the particular States, can\nrectify the exceptionable decisions of their respective courts, in\nany other sense than might be done by a future legislature of the\nUnited States. The theory, neither of the British, nor the State\nconstitutions, authorizes the revisal of a judicial sentence by a\nlegislative act. Nor is there any thing in the proposed\nConstitution, more than in either of them, by which it is forbidden.\nIn the former, as well as in the latter, the impropriety of the\nthing, on the general principles of law and reason, is the sole\nobstacle. A legislature, without exceeding its province, cannot\nreverse a determination once made in a particular case; though it\nmay prescribe a new rule for future cases. This is the principle,\nand it applies in all its consequences, exactly in the same manner\nand extent, to the State governments, as to the national government\nnow under consideration. Not the least difference can be pointed\nout in any view of 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\nmay now and then happen; but they can never be so extensive as to\namount to an inconvenience, or in any sensible degree to affect the\norder of the political system. This may be inferred with certainty,\nfrom the general nature of the judicial power, from the objects to\nwhich it relates, from the manner in which it is exercised, from its\ncomparative weakness, and from its total incapacity to support its\nusurpations by force. And the inference is greatly fortified by the\nconsideration of the important constitutional check which the power\nof instituting impeachments in one part of the legislative body, and\nof determining upon them in the other, would give to that body upon\nthe members of the judicial department. This is alone a complete\nsecurity. There never can be danger that the judges, by a series of\ndeliberate usurpations on the authority of the legislature, would\nhazard the united resentment of the body intrusted with it, while\nthis body was possessed of the means of punishing their presumption,\nby degrading them from their stations. While this ought to remove\nall apprehensions on the subject, it affords, at the same time, a\ncogent 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\nproceed to consider the propriety of the power of constituting\ninferior courts, [2] and the relations which will subsist between\nthese and the former.\n\nThe power of constituting inferior courts is evidently\ncalculated to obviate the necessity of having recourse to the\nSupreme Court in every case of federal cognizance. It is intended\nto enable the national government to institute or AUTHORUZE, in each\nState or district of the United States, a tribunal competent to the\ndetermination of matters of national jurisdiction within its limits.\n\nBut why, it is asked, might not the same purpose have been\naccomplished by the instrumentality of the State courts? This\nadmits of different answers. Though the fitness and competency of\nthose courts should be allowed in the utmost latitude, yet the\nsubstance of the power in question may still be regarded as a\nnecessary part of the plan, if it were only to empower the national\nlegislature to commit to them the cognizance of causes arising out\nof the national Constitution. To confer the power of determining\nsuch causes upon the existing courts of the several States, would\nperhaps be as much \"to constitute tribunals,\" as to create new\ncourts with the like power. But ought not a more direct and\nexplicit provision to have been made in favor of the State courts?\nThere are, in my opinion, substantial reasons against such a\nprovision: the most discerning cannot foresee how far the\nprevalency of a local spirit may be found to disqualify the local\ntribunals for the jurisdiction of national causes; whilst every man\nmay discover, that courts constituted like those of some of the\nStates would be improper channels of the judicial authority of the\nUnion. State judges, holding their offices during pleasure, or from\nyear to year, will be too little independent to be relied upon for\nan inflexible execution of the national laws. And if there was a\nnecessity for confiding the original cognizance of causes arising\nunder those laws to them there would be a correspondent necessity\nfor leaving the door of appeal as wide as possible. In proportion\nto the grounds of confidence in, or distrust of, the subordinate\ntribunals, ought to be the facility or difficulty of appeals. And\nwell satisfied as I am of the propriety of the appellate\njurisdiction, in the several classes of causes to which it is\nextended by the plan of the convention. I should consider every\nthing calculated to give, in practice, an UNRESTRAINED COURSE to\nappeals, as a source of public and private inconvenience.\n\nI am not sure, but that it will be found highly expedient and\nuseful, to divide the United States into four or five or half a\ndozen districts; and to institute a federal court in each district,\nin lieu of one in every State. The judges of these courts, with the\naid of the State judges, may hold circuits for the trial of causes\nin the several parts of the respective districts. Justice through\nthem may be administered with ease and despatch; and appeals may be\nsafely circumscribed within a narrow compass. This plan appears to\nme at present the most eligible of any that could be adopted; and\nin order to it, it is necessary that the power of constituting\ninferior courts should exist in the full extent in which it is to be\nfound in the proposed Constitution.\n\nThese reasons seem sufficient to satisfy a candid mind, that the\nwant of such a power would have been a great defect in the plan.\nLet us now examine in what manner the judicial authority is to be\ndistributed between the supreme and the inferior courts of the Union.\nThe Supreme Court is to be invested with original jurisdiction,\nonly \"in cases affecting ambassadors, other public ministers, and\nconsuls, and those in which A STATE shall be a party.\" Public\nministers of every class are the immediate representatives of their\nsovereigns. All questions in which they are concerned are so\ndirectly connected with the public peace, that, as well for the\npreservation of this, as out of respect to the sovereignties they\nrepresent, it is both expedient and proper that such questions\nshould be submitted in the first instance to the highest judicatory\nof the nation. Though consuls have not in strictness a diplomatic\ncharacter, yet as they are the public agents of the nations to which\nthey belong, the same observation is in a great measure applicable\nto them. In cases in which a State might happen to be a party, it\nwould ill suit its dignity to be turned over to an inferior tribunal.\nThough it may rather be a digression from the immediate subject\nof this paper, I shall take occasion to mention here a supposition\nwhich has excited some alarm upon very mistaken grounds. It has\nbeen suggested that an assignment of the public securities of one\nState to the citizens of another, would enable them to prosecute\nthat State in the federal courts for the amount of those securities;\na suggestion which the following considerations prove to be without\nfoundation.\n\nIt is inherent in the nature of sovereignty not to be amenable\nto the suit of an individual WITHOUT ITS CONSENT. This is the\ngeneral sense, and the general practice of mankind; and the\nexemption, as one of the attributes of sovereignty, is now enjoyed\nby the government of every State in the Union. Unless, therefore,\nthere is a surrender of this immunity in the plan of the convention,\nit will remain with the States, and the danger intimated must be\nmerely ideal. The circumstances which are necessary to produce an\nalienation of State sovereignty were discussed in considering the\narticle of taxation, and need not be repeated here. A recurrence to\nthe principles there established will satisfy us, that there is no\ncolor to pretend that the State governments would, by the adoption\nof that plan, be divested of the privilege of paying their own debts\nin their own way, free from every constraint but that which flows\nfrom the obligations of good faith. The contracts between a nation\nand individuals are only binding on the conscience of the sovereign,\nand have no pretensions to a compulsive force. They confer no right\nof action, independent of the sovereign will. To what purpose would\nit be to authorize suits against States for the debts they owe? How\ncould recoveries be enforced? It is evident, it could not be done\nwithout waging war against the contracting State; and to ascribe to\nthe federal courts, by mere implication, and in destruction of a\npre-existing right of the State governments, a power which would\ninvolve such a consequence, would be altogether forced and\nunwarrantable.\n\nLet us resume the train of our observations. We have seen that\nthe original jurisdiction of the Supreme Court would be confined to\ntwo classes of causes, and those of a nature rarely to occur. In\nall other cases of federal cognizance, the original jurisdiction\nwould appertain to the inferior tribunals; and the Supreme Court\nwould have nothing more than an appellate jurisdiction, \"with such\nEXCEPTIONS and under such REGULATIONS as the Congress shall make.\"\n\nThe propriety of this appellate jurisdiction has been scarcely\ncalled in question in regard to matters of law; but the clamors\nhave been loud against it as applied to matters of fact. Some\nwell-intentioned men in this State, deriving their notions from the\nlanguage and forms which obtain in our courts, have been induced to\nconsider it as an implied supersedure of the trial by jury, in favor\nof the civil-law mode of trial, which prevails in our courts of\nadmiralty, probate, and chancery. A technical sense has been\naffixed to the term \"appellate,\" which, in our law parlance, is\ncommonly used in reference to appeals in the course of the civil law.\nBut if I am not misinformed, the same meaning would not be given\nto it in any part of New England. There an appeal from one jury to\nanother, is familiar both in language and practice, and is even a\nmatter of course, until there have been two verdicts on one side.\nThe word \"appellate,\" therefore, will not be understood in the\nsame sense in New England as in New York, which shows the\nimpropriety of a technical interpretation derived from the\njurisprudence of any particular State. The expression, taken in the\nabstract, denotes nothing more than the power of one tribunal to\nreview the proceedings of another, either as to the law or fact, or\nboth. The mode of doing it may depend on ancient custom or\nlegislative provision (in a new government it must depend on the\nlatter), 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\nproposed Constitution, it may be so regulated as to be done by a\nsecond jury, either by remanding the cause to the court below for a\nsecond trial of the fact, or by directing an issue immediately out\nof 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\nmay not it be said, with the strictest propriety, when a writ of\nerror is brought from an inferior to a superior court of law in this\nState, that the latter has jurisdiction of the fact as well as the\nlaw? It is true it cannot institute a new inquiry concerning the\nfact, but it takes cognizance of it as it appears upon the record,\nand pronounces the law arising upon it. [3] This is jurisdiction\nof both fact and law; nor is it even possible to separate them.\nThough the common-law courts of this State ascertain disputed facts\nby a jury, yet they unquestionably have jurisdiction of both fact\nand law; and accordingly when the former is agreed in the\npleadings, they have no recourse to a jury, but proceed at once to\njudgment. I contend, therefore, on this ground, that the\nexpressions, \"appellate jurisdiction, both as to law and fact,\" do\nnot necessarily imply a re-examination in the Supreme Court of facts\ndecided by juries in the inferior courts.\n\nThe following train of ideas may well be imagined to have\ninfluenced the convention, in relation to this particular provision.\nThe appellate jurisdiction of the Supreme Court (it may have been\nargued) will extend to causes determinable in different modes, some\nin the course of the COMMON LAW, others in the course of the CIVIL\nLAW. In the former, the revision of the law only will be, generally\nspeaking, the proper province of the Supreme Court; in the latter,\nthe re-examination of the fact is agreeable to usage, and in some\ncases, of which prize causes are an example, might be essential to\nthe preservation of the public peace. It is therefore necessary\nthat the appellate jurisdiction should, in certain cases, extend in\nthe broadest sense to matters of fact. It will not answer to make\nan express exception of cases which shall have been originally tried\nby a jury, because in the courts of some of the States ALL CAUSES\nare tried in this mode [4]; and such an exception would preclude\nthe revision of matters of fact, as well where it might be proper,\nas where it might be improper. To avoid all inconveniencies, it\nwill be safest to declare generally, that the Supreme Court shall\npossess appellate jurisdiction both as to law and FACT, and that\nthis jurisdiction shall be subject to such EXCEPTIONS and\nregulations as the national legislature may prescribe. This will\nenable the government to modify it in such a manner as will best\nanswer the ends of public justice and security.\n\nThis view of the matter, at any rate, puts it out of all doubt\nthat the supposed ABOLITION of the trial by jury, by the operation\nof this provision, is fallacious and untrue. The legislature of the\nUnited States would certainly have full power to provide, that in\nappeals to the Supreme Court there should be no re-examination of\nfacts where they had been tried in the original causes by juries.\nThis would certainly be an authorized exception; but if, for the\nreason already intimated, it should be thought too extensive, it\nmight be qualified with a limitation to such causes only as are\ndeterminable at common law in that mode of trial.\n\nThe amount of the observations hitherto made on the authority of\nthe judicial department is this: that it has been carefully\nrestricted to those causes which are manifestly proper for the\ncognizance of the national judicature; that in the partition of\nthis authority a very small portion of original jurisdiction has\nbeen preserved to the Supreme Court, and the rest consigned to the\nsubordinate tribunals; that the Supreme Court will possess an\nappellate jurisdiction, both as to law and fact, in all the cases\nreferred to them, both subject to any EXCEPTIONS and REGULATIONS\nwhich may be thought advisable; that this appellate jurisdiction\ndoes, in no case, ABOLISH the trial by jury; and that an ordinary\ndegree of prudence and integrity in the national councils will\ninsure us solid advantages from the establishment of the proposed\njudiciary, without exposing us to any of the inconveniences which\nhave been predicted from that source.\n\nPUBLIUS.\n\n1. Article 3, sec. I.\n\n2. This power has been absurdly represented as intended to\nabolish all the county courts in the several States, which are\ncommonly called inferior courts. But the expressions of the\nConstitution are, to constitute \"tribunals INFERIOR TO THE SUPREME\nCOURT\"; and the evident design of the provision is to enable the\ninstitution of local courts, subordinate to the Supreme, either in\nStates or larger districts. It is ridiculous to imagine that county\ncourts were in contemplation.\n\n3. This word is composed of JUS and DICTIO, juris dictio or a\nspeaking and pronouncing of the law.\n\n4. I hold that the States will have concurrent jurisdiction with\nthe subordinate federal judicatories, in many cases of federal\ncognizance, as will be explained in my next paper.\n", "date": null, "title": "The Judiciary Continued, and the Distribution of the Judicial Authority", "paper_id": 81, "venue": "From McLEAN's Edition, New York"}
{"author": "HAMILTON", "text": "To 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\nintricacy and nicety; and these may, in a particular manner, be\nexpected to flow from the establishment of a constitution founded\nupon the total or partial incorporation of a number of distinct\nsovereignties. 'T is time only that can mature and perfect so\ncompound a system, can liquidate the meaning of all the parts, and\ncan adjust them to each other in a harmonious and consistent WHOLE.\n\nSuch questions, accordingly, have arisen upon the plan proposed\nby the convention, and particularly concerning the judiciary\ndepartment. The principal of these respect the situation of the\nState courts in regard to those causes which are to be submitted to\nfederal jurisdiction. Is this to be exclusive, or are those courts\nto possess a concurrent jurisdiction? If the latter, in what\nrelation will they stand to the national tribunals? These are\ninquiries which we meet with in the mouths of men of sense, and\nwhich are certainly entitled to attention.\n\nThe principles established in a former paper [1] teach us that\nthe States will retain all PRE-EXISTING authorities which may not be\nexclusively delegated to the federal head; and that this exclusive\ndelegation can only exist in one of three cases: where an exclusive\nauthority is, in express terms, granted to the Union; or where a\nparticular authority is granted to the Union, and the exercise of a\nlike authority is prohibited to the States; or where an authority\nis granted to the Union, with which a similar authority in the\nStates would be utterly incompatible. Though these principles may\nnot apply with the same force to the judiciary as to the legislative\npower, yet I am inclined to think that they are, in the main, just\nwith respect to the former, as well as the latter. And under this\nimpression, I shall lay it down as a rule, that the State courts\nwill RETAIN the jurisdiction they now have, unless it appears to be\ntaken away in one of the enumerated modes.\n\nThe only thing in the proposed Constitution, which wears the\nappearance of confining the causes of federal cognizance to the\nfederal courts, is contained in this passage:  \"The JUDICIAL POWER\nof the United States SHALL BE VESTED in one Supreme Court, and in\nSUCH inferior courts as the Congress shall from time to time ordain\nand establish.\" This might either be construed to signify, that\nthe supreme and subordinate courts of the Union should alone have\nthe power of deciding those causes to which their authority is to\nextend; or simply to denote, that the organs of the national\njudiciary should be one Supreme Court, and as many subordinate\ncourts as Congress should think proper to appoint; or in other\nwords, that the United States should exercise the judicial power\nwith which they are to be invested, through one supreme tribunal,\nand a certain number of inferior ones, to be instituted by them.\nThe first excludes, the last admits, the concurrent jurisdiction of\nthe State tribunals; and as the first would amount to an alienation\nof State power by implication, the last appears to me the most\nnatural and the most defensible construction.\n\nBut this doctrine of concurrent jurisdiction is only clearly\napplicable to those descriptions of causes of which the State courts\nhave previous cognizance. It is not equally evident in relation to\ncases which may grow out of, and be PECULIAR to, the Constitution to\nbe established; for not to allow the State courts a right of\njurisdiction in such cases, can hardly be considered as the\nabridgment of a pre-existing authority. I mean not therefore to\ncontend that the United States, in the course of legislation upon\nthe objects intrusted to their direction, may not commit the\ndecision of causes arising upon a particular regulation to the\nfederal courts solely, if such a measure should be deemed expedient;\nbut I hold that the State courts will be divested of no part of\ntheir primitive jurisdiction, further than may relate to an appeal;\nand I am even of opinion that in every case in which they were not\nexpressly excluded by the future acts of the national legislature,\nthey will of course take cognizance of the causes to which those\nacts may give birth. This I infer from the nature of judiciary\npower, and from the general genius of the system. The judiciary\npower of every government looks beyond its own local or municipal\nlaws, and in civil cases lays hold of all subjects of litigation\nbetween parties within its jurisdiction, though the causes of\ndispute are relative to the laws of the most distant part of the\nglobe. Those of Japan, not less than of New York, may furnish the\nobjects of legal discussion to our courts. When in addition to this\nwe consider the State governments and the national governments, as\nthey truly are, in the light of kindred systems, and as parts of ONE\nWHOLE, the inference seems to be conclusive, that the State courts\nwould have a concurrent jurisdiction in all cases arising under the\nlaws of the Union, where it was not expressly prohibited.\n\nHere another question occurs: What relation would subsist\nbetween the national and State courts in these instances of\nconcurrent jurisdiction? I answer, that an appeal would certainly\nlie from the latter, to the Supreme Court of the United States. The\nConstitution in direct terms gives an appellate jurisdiction to the\nSupreme Court in all the enumerated cases of federal cognizance in\nwhich it is not to have an original one, without a single expression\nto confine its operation to the inferior federal courts. The\nobjects of appeal, not the tribunals from which it is to be made,\nare alone contemplated. From this circumstance, and from the reason\nof the thing, it ought to be construed to extend to the State\ntribunals. Either this must be the case, or the local courts must\nbe excluded from a concurrent jurisdiction in matters of national\nconcern, else the judiciary authority of the Union may be eluded at\nthe pleasure of every plaintiff or prosecutor. Neither of these\nconsequences ought, without evident necessity, to be involved; the\nlatter would be entirely inadmissible, as it would defeat some of\nthe most important and avowed purposes of the proposed government,\nand would essentially embarrass its measures. Nor do I perceive any\nfoundation for such a supposition. Agreeably to the remark already\nmade, the national and State systems are to be regarded as ONE WHOLE.\nThe courts of the latter will of course be natural auxiliaries to\nthe execution of the laws of the Union, and an appeal from them will\nas naturally lie to that tribunal which is destined to unite and\nassimilate the principles of national justice and the rules of\nnational decisions. The evident aim of the plan of the convention\nis, that all the causes of the specified classes shall, for weighty\npublic reasons, receive their original or final determination in the\ncourts of the Union. To confine, therefore, the general expressions\ngiving appellate jurisdiction to the Supreme Court, to appeals from\nthe subordinate federal courts, instead of allowing their extension\nto the State courts, would be to abridge the latitude of the terms,\nin subversion of the intent, contrary to every sound rule of\ninterpretation.\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.\nThe following considerations countenance the affirmative. The plan\nof the convention, in the first place, authorizes the national\nlegislature \"to constitute tribunals inferior to the Supreme\nCourt.\" [2] It declares, in the next place, that \"the JUDICIAL\nPOWER of the United States SHALL BE VESTED in one Supreme Court, and\nin such inferior courts as Congress shall ordain and establish\";\nand it then proceeds to enumerate the cases to which this judicial\npower shall extend. It afterwards divides the jurisdiction of the\nSupreme Court into original and appellate, but gives no definition\nof that of the subordinate courts. The only outlines described for\nthem, are that they shall be \"inferior to the Supreme Court,\" and\nthat they shall not exceed the specified limits of the federal\njudiciary. Whether their authority shall be original or appellate,\nor both, is not declared. All this seems to be left to the\ndiscretion of the legislature. And this being the case, I perceive\nat present no impediment to the establishment of an appeal from the\nState courts to the subordinate national tribunals; and many\nadvantages attending the power of doing it may be imagined. It\nwould diminish the motives to the multiplication of federal courts,\nand would admit of arrangements calculated to contract the appellate\njurisdiction of the Supreme Court. The State tribunals may then be\nleft with a more entire charge of federal causes; and appeals, in\nmost cases in which they may be deemed proper, instead of being\ncarried to the Supreme Court, may be made to lie from the State\ncourts to district courts of the Union.\n\nPUBLIUS.\n\n1. No. 31.\n\n2. Sec. 8th art. 1st.\n", "date": null, "title": "The Judiciary Continued", "paper_id": 82, "venue": "From McLEAN's Edition, New York"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nTHE objection to the plan of the convention, which has met with\nmost success in this State, and perhaps in several of the other\nStates, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION\nfor the trial by jury in civil cases. The disingenuous form in\nwhich this objection is usually stated has been repeatedly adverted\nto and exposed, but continues to be pursued in all the conversations\nand writings of the opponents of the plan. The mere silence of the\nConstitution in regard to CIVIL CAUSES, is represented as an\nabolition of the trial by jury, and the declamations to which it has\nafforded a pretext are artfully calculated to induce a persuasion\nthat this pretended abolition is complete and universal, extending\nnot only to every species of civil, but even to CRIMINAL CAUSES. To\nargue with respect to the latter would, however, be as vain and\nfruitless as to attempt the serious proof of the EXISTENCE of\nMATTER, or to demonstrate any of those propositions which, by their\nown internal evidence, force conviction, when expressed in language\nadapted to convey their meaning.\n\nWith regard to civil causes, subtleties almost too contemptible\nfor refutation have been employed to countenance the surmise that a\nthing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every\nman of discernment must at once perceive the wide difference between\nSILENCE and ABOLITION. But as the inventors of this fallacy have\nattempted to support it by certain LEGAL MAXIMS of interpretation,\nwhich they have perverted from their true meaning, it may not be\nwholly useless to explore the ground they have taken.\n\nThe maxims on which they rely are of this nature: \"A\nspecification of particulars is an exclusion of generals\"; or,\n\"The expression of one thing is the exclusion of another.\" Hence,\nsay they, as the Constitution has established the trial by jury in\ncriminal cases, and is silent in respect to civil, this silence is\nan implied prohibition of trial by jury in regard to the latter.\n\nThe rules of legal interpretation are rules of COMMONSENSE,\nadopted by the courts in the construction of the laws. The true\ntest, therefore, of a just application of them is its conformity to\nthe source from which they are derived. This being the case, let me\nask if it is consistent with common-sense to suppose that a\nprovision obliging the legislative power to commit the trial of\ncriminal causes to juries, is a privation of its right to authorize\nor permit that mode of trial in other cases? Is it natural to\nsuppose, that a command to do one thing is a prohibition to the\ndoing of another, which there was a previous power to do, and which\nis not incompatible with the thing commanded to be done? If such a\nsupposition would be unnatural and unreasonable, it cannot be\nrational to maintain that an injunction of the trial by jury in\ncertain cases is an interdiction of it in others.\n\nA power to constitute courts is a power to prescribe the mode of\ntrial; and consequently, if nothing was said in the Constitution on\nthe subject of juries, the legislature would be at liberty either to\nadopt that institution or to let it alone. This discretion, in\nregard to criminal causes, is abridged by the express injunction of\ntrial by jury in all such cases; but it is, of course, left at\nlarge in relation to civil causes, there being a total silence on\nthis head. The specification of an obligation to try all criminal\ncauses in a particular mode, excludes indeed the obligation or\nnecessity of employing the same mode in civil causes, but does not\nabridge THE POWER of the legislature to exercise that mode if it\nshould be thought proper. The pretense, therefore, that the\nnational legislature would not be at full liberty to submit all the\ncivil causes of federal cognizance to the determination of juries,\nis a pretense destitute of all just foundation.\n\nFrom these observations this conclusion results: that the trial\nby jury in civil cases would not be abolished; and that the use\nattempted to be made of the maxims which have been quoted, is\ncontrary to reason and common-sense, and therefore not admissible.\nEven if these maxims had a precise technical sense, corresponding\nwith the idea of those who employ them upon the present occasion,\nwhich, however, is not the case, they would still be inapplicable to\na constitution of government. In relation to such a subject, the\nnatural and obvious sense of its provisions, apart from any\ntechnical rules, is the true criterion of construction.\n\nHaving now seen that the maxims relied upon will not bear the\nuse made of them, let us endeavor to ascertain their proper use and\ntrue meaning. This will be best done by examples. The plan of the\nconvention declares that the power of Congress, or, in other words,\nof the NATIONAL LEGISLATURE, shall extend to certain enumerated\ncases. This specification of particulars evidently excludes all\npretension to a general legislative authority, because an\naffirmative grant of special powers would be absurd, as well as\nuseless, if a general authority was intended.\n\nIn like manner the judicial authority of the federal judicatures\nis declared by the Constitution to comprehend certain cases\nparticularly specified. The expression of those cases marks the\nprecise limits, beyond which the federal courts cannot extend their\njurisdiction, because the objects of their cognizance being\nenumerated, the specification would be nugatory if it did not\nexclude all ideas of more extensive authority.\n\nThese examples are sufficient to elucidate the maxims which have\nbeen mentioned, and to designate the manner in which they should be\nused. But that there may be no misapprehensions upon this subject,\nI shall add one case more, to demonstrate the proper use of these\nmaxims, and the abuse which has been made of them.\n\nLet us suppose that by the laws of this State a married woman\nwas incapable of conveying her estate, and that the legislature,\nconsidering this as an evil, should enact that she might dispose of\nher property by deed executed in the presence of a magistrate. In\nsuch a case there can be no doubt but the specification would amount\nto an exclusion of any other mode of conveyance, because the woman\nhaving no previous power to alienate her property, the specification\ndetermines the particular mode which she is, for that purpose, to\navail herself of. But let us further suppose that in a subsequent\npart of the same act it should be declared that no woman should\ndispose of any estate of a determinate value without the consent of\nthree of her nearest relations, signified by their signing the deed;\ncould it be inferred from this regulation that a married woman\nmight not procure the approbation of her relations to a deed for\nconveying property of inferior value? The position is too absurd to\nmerit a refutation, and yet this is precisely the position which\nthose must establish who contend that the trial by juries in civil\ncases is abolished, because it is expressly provided for in cases of\na criminal nature.\n\nFrom these observations it must appear unquestionably true, that\ntrial by jury is in no case abolished by the proposed Constitution,\nand it is equally true, that in those controversies between\nindividuals in which the great body of the people are likely to be\ninterested, that institution will remain precisely in the same\nsituation in which it is placed by the State constitutions, and will\nbe in no degree altered or influenced by the adoption of the plan\nunder consideration. The foundation of this assertion is, that the\nnational judiciary will have no cognizance of them, and of course\nthey will remain determinable as heretofore by the State courts\nonly, and in the manner which the State constitutions and laws\nprescribe. All land causes, except where claims under the grants of\ndifferent States come into question, and all other controversies\nbetween the citizens of the same State, unless where they depend\nupon positive violations of the articles of union, by acts of the\nState legislatures, will belong exclusively to the jurisdiction of\nthe State tribunals. Add to this, that admiralty causes, and almost\nall those which are of equity jurisdiction, are determinable under\nour own government without the intervention of a jury, and the\ninference from the whole will be, that this institution, as it\nexists with us at present, cannot possibly be affected to any great\nextent by the proposed alteration in our system of government.\n\nThe friends and adversaries of the plan of the convention, if\nthey agree in nothing else, concur at least in the value they set\nupon the trial by jury; or if there is any difference between them\nit consists in this: the former regard it as a valuable safeguard\nto liberty; the latter represent it as the very palladium of free\ngovernment. For my own part, the more the operation of the\ninstitution has fallen under my observation, the more reason I have\ndiscovered for holding it in high estimation; and it would be\naltogether superfluous to examine to what extent it deserves to be\nesteemed useful or essential in a representative republic, or how\nmuch more merit it may be entitled to, as a defense against the\noppressions of an hereditary monarch, than as a barrier to the\ntyranny of popular magistrates in a popular government. Discussions\nof this kind would be more curious than beneficial, as all are\nsatisfied of the utility of the institution, and of its friendly\naspect to liberty. But I must acknowledge that I cannot readily\ndiscern the inseparable connection between the existence of liberty,\nand the trial by jury in civil cases. Arbitrary impeachments,\narbitrary methods of prosecuting pretended offenses, and arbitrary\npunishments upon arbitrary convictions, have ever appeared to me to\nbe the great engines of judicial despotism; and these have all\nrelation to criminal proceedings. The trial by jury in criminal\ncases, aided by the habeas-corpus act, seems therefore to be\nalone concerned in the question. And both of these are provided\nfor, in the most ample manner, in the plan of the convention.\n\nIt has been observed, that trial by jury is a safeguard against\nan oppressive exercise of the power of taxation. This observation\ndeserves to be canvassed.\n\nIt is evident that it can have no influence upon the\nlegislature, in regard to the AMOUNT of taxes to be laid, to the\nOBJECTS upon which they are to be imposed, or to the RULE by which\nthey are to be apportioned. If it can have any influence,\ntherefore, it must be upon the mode of collection, and the conduct\nof the officers intrusted with the execution of the revenue laws.\n\nAs to the mode of collection in this State, under our own\nConstitution, the trial by jury is in most cases out of use. The\ntaxes are usually levied by the more summary proceeding of distress\nand sale, as in cases of rent. And it is acknowledged on all hands,\nthat this is essential to the efficacy of the revenue laws. The\ndilatory course of a trial at law to recover the taxes imposed on\nindividuals, would neither suit the exigencies of the public nor\npromote the convenience of the citizens. It would often occasion an\naccumulation of costs, more burdensome than the original sum of the\ntax to be levied.\n\nAnd as to the conduct of the officers of the revenue, the\nprovision in favor of trial by jury in criminal cases, will afford\nthe security aimed at. Wilful abuses of a public authority, to the\noppression of the subject, and every species of official extortion,\nare offenses against the government, for which the persons who\ncommit them may be indicted and punished according to the\ncircumstances of the case.\n\nThe excellence of the trial by jury in civil cases appears to\ndepend on circumstances foreign to the preservation of liberty. The\nstrongest argument in its favor is, that it is a security against\ncorruption. As there is always more time and better opportunity to\ntamper with a standing body of magistrates than with a jury summoned\nfor the occasion, there is room to suppose that a corrupt influence\nwould more easily find its way to the former than to the latter.\nThe force of this consideration is, however, diminished by others.\nThe sheriff, who is the summoner of ordinary juries, and the clerks\nof courts, who have the nomination of special juries, are themselves\nstanding officers, and, acting individually, may be supposed more\naccessible to the touch of corruption than the judges, who are a\ncollective body. It is not difficult to see, that it would be in\nthe power of those officers to select jurors who would serve the\npurpose of the party as well as a corrupted bench. In the next\nplace, it may fairly be supposed, that there would be less\ndifficulty in gaining some of the jurors promiscuously taken from\nthe public mass, than in gaining men who had been chosen by the\ngovernment for their probity and good character. But making every\ndeduction for these considerations, the trial by jury must still be\na valuable check upon corruption. It greatly multiplies the\nimpediments to its success. As matters now stand, it would be\nnecessary to corrupt both court and jury; for where the jury have\ngone evidently wrong, the court will generally grant a new trial,\nand it would be in most cases of little use to practice upon the\njury, unless the court could be likewise gained. Here then is a\ndouble security; and it will readily be perceived that this\ncomplicated agency tends to preserve the purity of both institutions.\nBy increasing the obstacles to success, it discourages attempts to\nseduce the integrity of either. The temptations to prostitution\nwhich the judges might have to surmount, must certainly be much\nfewer, 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\nthe essentiality of trial by jury in civil cases to liberty, I admit\nthat it is in most cases, under proper regulations, an excellent\nmethod of determining questions of property; and that on this\naccount alone it would be entitled to a constitutional provision in\nits favor if it were possible to fix the limits within which it\nought to be comprehended. There is, however, in all cases, great\ndifficulty in this; and men not blinded by enthusiasm must be\nsensible that in a federal government, which is a composition of\nsocieties whose ideas and institutions in relation to the matter\nmaterially vary from each other, that difficulty must be not a\nlittle augmented. For my own part, at every new view I take of the\nsubject, I become more convinced of the reality of the obstacles\nwhich, we are authoritatively informed, prevented the insertion of a\nprovision on this head in the plan of the convention.\n\nThe great difference between the limits of the jury trial in\ndifferent States is not generally understood; and as it must have\nconsiderable influence on the sentence we ought to pass upon the\nomission complained of in regard to this point, an explanation of it\nis necessary. In this State, our judicial establishments resemble,\nmore nearly than in any other, those of Great Britain. We have\ncourts of common law, courts of probates (analogous in certain\nmatters to the spiritual courts in England), a court of admiralty\nand a court of chancery. In the courts of common law only, the\ntrial by jury prevails, and this with some exceptions. In all the\nothers a single judge presides, and proceeds in general either\naccording to the course of the canon or civil law, without the aid\nof a jury. [1] In New Jersey, there is a court of chancery which\nproceeds like ours, but neither courts of admiralty nor of probates,\nin the sense in which these last are established with us. In that\nState the courts of common law have the cognizance of those causes\nwhich with us are determinable in the courts of admiralty and of\nprobates, and of course the jury trial is more extensive in New\nJersey than in New York. In Pennsylvania, this is perhaps still\nmore the case, for there is no court of chancery in that State, and\nits common-law courts have equity jurisdiction. It has a court of\nadmiralty, but none of probates, at least on the plan of ours.\nDelaware has in these respects imitated Pennsylvania. Maryland\napproaches more nearly to New York, as does also Virginia, except\nthat the latter has a plurality of chancellors. North Carolina\nbears most affinity to Pennsylvania; South Carolina to Virginia. I\nbelieve, however, that in some of those States which have distinct\ncourts of admiralty, the causes depending in them are triable by\njuries. In Georgia there are none but common-law courts, and an\nappeal of course lies from the verdict of one jury to another, which\nis called a special jury, and for which a particular mode of\nappointment is marked out. In Connecticut, they have no distinct\ncourts either of chancery or of admiralty, and their courts of\nprobates have no jurisdiction of causes. Their common-law courts\nhave admiralty and, to a certain extent, equity jurisdiction. In\ncases of importance, their General Assembly is the only court of\nchancery. In Connecticut, therefore, the trial by jury extends in\nPRACTICE further than in any other State yet mentioned. Rhode\nIsland is, I believe, in this particular, pretty much in the\nsituation of Connecticut. Massachusetts and New Hampshire, in\nregard to the blending of law, equity, and admiralty jurisdictions,\nare in a similar predicament. In the four Eastern States, the trial\nby jury not only stands upon a broader foundation than in the other\nStates, but it is attended with a peculiarity unknown, in its full\nextent, to any of them. There is an appeal OF COURSE from one jury\nto another, till there have been two verdicts out of three on one\nside.\n\nFrom this sketch it appears that there is a material diversity,\nas well in the modification as in the extent of the institution of\ntrial by jury in civil cases, in the several States; and from this\nfact these obvious reflections flow: first, that no general rule\ncould have been fixed upon by the convention which would have\ncorresponded with the circumstances of all the States; and\nsecondly, that more or at least as much might have been hazarded by\ntaking the system of any one State for a standard, as by omitting a\nprovision altogether and leaving the matter, as has been done, to\nlegislative regulation.\n\nThe propositions which have been made for supplying the omission\nhave rather served to illustrate than to obviate the difficulty of\nthe thing. The minority of Pennsylvania have proposed this mode of\nexpression for the purpose \"Trial by jury shall be as\nheretofore\" and this I maintain would be senseless and nugatory.\nThe United States, in their united or collective capacity, are the\nOBJECT to which all general provisions in the Constitution must\nnecessarily be construed to refer. Now it is evident that though\ntrial by jury, with various limitations, is known in each State\nindividually, yet in the United States, AS SUCH, it is at this time\naltogether unknown, because the present federal government has no\njudiciary 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,\nand inoperative from its uncertainty.\n\nAs, on the one hand, the form of the provision would not fulfil\nthe intent of its proposers, so, on the other, if I apprehend that\nintent rightly, it would be in itself inexpedient. I presume it to\nbe, that causes in the federal courts should be tried by jury, if,\nin the State where the courts sat, that mode of trial would obtain\nin a similar case in the State courts; that is to say, admiralty\ncauses should be tried in Connecticut by a jury, in New York without\none. The capricious operation of so dissimilar a method of trial in\nthe same cases, under the same government, is of itself sufficient\nto indispose every wellregulated judgment towards it. Whether the\ncause should be tried with or without a jury, would depend, in a\ngreat number of cases, on the accidental situation of the court and\nparties.\n\nBut this is not, in my estimation, the greatest objection. I\nfeel a deep and deliberate conviction that there are many cases in\nwhich the trial by jury is an ineligible one. I think it so\nparticularly in cases which concern the public peace with foreign\nnations that is, in most cases where the question turns wholly on\nthe laws of nations. Of this nature, among others, are all prize\ncauses. Juries cannot be supposed competent to investigations that\nrequire a thorough knowledge of the laws and usages of nations; and\nthey will sometimes be under the influence of impressions which will\nnot suffer them to pay sufficient regard to those considerations of\npublic policy which ought to guide their inquiries. There would of\ncourse be always danger that the rights of other nations might be\ninfringed by their decisions, so as to afford occasions of reprisal\nand war. Though the proper province of juries be to determine\nmatters of fact, yet in most cases legal consequences are\ncomplicated with fact in such a manner as to render a separation\nimpracticable.\n\nIt will add great weight to this remark, in relation to prize\ncauses, to mention that the method of determining them has been\nthought worthy of particular regulation in various treaties between\ndifferent powers of Europe, and that, pursuant to such treaties,\nthey are determinable in Great Britain, in the last resort, before\nthe king himself, in his privy council, where the fact, as well as\nthe law, undergoes a re-examination. This alone demonstrates the\nimpolicy of inserting a fundamental provision in the Constitution\nwhich would make the State systems a standard for the national\ngovernment in the article under consideration, and the danger of\nencumbering the government with any constitutional provisions the\npropriety of which is not indisputable.\n\nMy convictions are equally strong that great advantages result\nfrom the separation of the equity from the law jurisdiction, and\nthat the causes which belong to the former would be improperly\ncommitted to juries. The great and primary use of a court of equity\nis to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS [2]\nto general rules. To unite the jurisdiction of such cases with the\nordinary jurisdiction, must have a tendency to unsettle the general\nrules, and to subject every case that arises to a SPECIAL\ndetermination; while a separation of the one from the other has the\ncontrary effect of rendering one a sentinel over the other, and of\nkeeping each within the expedient limits. Besides this, the\ncircumstances that constitute cases proper for courts of equity are\nin many instances so nice and intricate, that they are incompatible\nwith the genius of trials by jury. They require often such long,\ndeliberate, and critical investigation as would be impracticable to\nmen called from their occupations, and obliged to decide before they\nwere permitted to return to them. The simplicity and expedition\nwhich form the distinguishing characters of this mode of trial\nrequire that the matter to be decided should be reduced to some\nsingle and obvious point; while the litigations usual in chancery\nfrequently comprehend a long train of minute and independent\nparticulars.\n\nIt is true that the separation of the equity from the legal\njurisdiction is peculiar to the English system of jurisprudence:\nwhich is the model that has been followed in several of the States.\nBut it is equally true that the trial by jury has been unknown in\nevery case in which they have been united. And the separation is\nessential to the preservation of that institution in its pristine\npurity. The nature of a court of equity will readily permit the\nextension of its jurisdiction to matters of law; but it is not a\nlittle to be suspected, that the attempt to extend the jurisdiction\nof the courts of law to matters of equity will not only be\nunproductive of the advantages which may be derived from courts of\nchancery, on the plan upon which they are established in this State,\nbut will tend gradually to change the nature of the courts of law,\nand to undermine the trial by jury, by introducing questions too\ncomplicated for a decision in that mode.\n\nThese appeared to be conclusive reasons against incorporating\nthe systems of all the States, in the formation of the national\njudiciary, according to what may be conjectured to have been the\nattempt of the Pennsylvania minority. Let us now examine how far\nthe proposition of Massachusetts is calculated to remedy the\nsupposed defect.\n\nIt is in this form: \"In civil actions between citizens of\ndifferent States, every issue of fact, arising in ACTIONS AT COMMON\nLAW, may be tried by a jury if the parties, or either of them\nrequest it.\"\n\nThis, at best, is a proposition confined to one description of\ncauses; and the inference is fair, either that the Massachusetts\nconvention considered that as the only class of federal causes, in\nwhich the trial by jury would be proper; or that if desirous of a\nmore extensive provision, they found it impracticable to devise one\nwhich would properly answer the end. If the first, the omission of\na regulation respecting so partial an object can never be considered\nas a material imperfection in the system. If the last, it affords a\nstrong corroboration of the extreme difficulty of the thing.\n\nBut this is not all: if we advert to the observations already\nmade respecting the courts that subsist in the several States of the\nUnion, and the different powers exercised by them, it will appear\nthat there are no expressions more vague and indeterminate than\nthose which have been employed to characterize THAT species of\ncauses which it is intended shall be entitled to a trial by jury.\nIn this State, the boundaries between actions at common law and\nactions of equitable jurisdiction, are ascertained in conformity to\nthe rules which prevail in England upon that subject. In many of\nthe other States the boundaries are less precise. In some of them\nevery cause is to be tried in a court of common law, and upon that\nfoundation every action may be considered as an action at common\nlaw, to be determined by a jury, if the parties, or either of them,\nchoose it. Hence the same irregularity and confusion would be\nintroduced by a compliance with this proposition, that I have\nalready noticed as resulting from the regulation proposed by the\nPennsylvania minority. In one State a cause would receive its\ndetermination from a jury, if the parties, or either of them,\nrequested it; but in another State, a cause exactly similar to the\nother, must be decided without the intervention of a jury, because\nthe State judicatories varied as to common-law jurisdiction.\n\nIt is obvious, therefore, that the Massachusetts proposition,\nupon this subject cannot operate as a general regulation, until some\nuniform plan, with respect to the limits of common-law and equitable\njurisdictions, shall be adopted by the different States. To devise\na plan of that kind is a task arduous in itself, and which it would\nrequire much time and reflection to mature. It would be extremely\ndifficult, if not impossible, to suggest any general regulation that\nwould be acceptable to all the States in the Union, or that would\nperfectly quadrate with the 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\nbe a good one, as a standard for the United States? I answer that\nit is not very probable the other States would entertain the same\nopinion of our institutions as we do ourselves. It is natural to\nsuppose that they are hitherto more attached to their own, and that\neach would struggle for the preference. If the plan of taking one\nState as a model for the whole had been thought of in the\nconvention, it is to be presumed that the adoption of it in that\nbody would have been rendered difficult by the predilection of each\nrepresentation in favor of its own government; and it must be\nuncertain which of the States would have been taken as the model.\nIt has been shown that many of them would be improper ones. And I\nleave 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\nthe convention, still there would have been great danger of jealousy\nand disgust in the other States, at the partiality which had been\nshown to the institutions of one. The enemies of the plan would\nhave been furnished with a fine pretext for raising a host of local\nprejudices against it, which perhaps might have hazarded, in no\ninconsiderable degree, its final establishment.\n\nTo avoid the embarrassments of a definition of the cases which\nthe trial by jury ought to embrace, it is sometimes suggested by men\nof enthusiastic tempers, that a provision might have been inserted\nfor establishing it in all cases whatsoever. For this I believe, no\nprecedent is to be found in any member of the Union; and the\nconsiderations which have been stated in discussing the proposition\nof the minority of Pennsylvania, must satisfy every sober mind that\nthe establishment of the trial by jury in ALL cases would have been\nan unpardonable error in the plan.\n\nIn short, the more it is considered the more arduous will appear\nthe task of fashioning a provision in such a form as not to express\ntoo little to answer the purpose, or too much to be advisable; or\nwhich might not have opened other sources of opposition to the great\nand essential object of introducing a firm national government.\n\nI cannot but persuade myself, on the other hand, that the\ndifferent lights in which the subject has been placed in the course\nof these observations, will go far towards removing in candid minds\nthe apprehensions they may have entertained on the point. They have\ntended to show that the security of liberty is materially concerned\nonly in the trial by jury in criminal cases, which is provided for\nin the most ample manner in the plan of the convention; that even\nin far the greatest proportion of civil cases, and those in which\nthe great body of the community is interested, that mode of trial\nwill remain in its full force, as established in the State\nconstitutions, untouched and unaffected by the plan of the\nconvention; that it is in no case abolished [3] by that plan; and\nthat there are great if not insurmountable difficulties in the way\nof making any precise and proper provision for it in a Constitution\nfor 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,\nand will be the most ready to admit that the changes which are\ncontinually happening in the affairs of society may render a\ndifferent mode of determining questions of property preferable in\nmany cases in which that mode of trial now prevails. For my part, I\nacknowledge myself to be convinced that even in this State it might\nbe advantageously extended to some cases to which it does not at\npresent apply, and might as advantageously be abridged in others.\nIt is conceded by all reasonable men that it ought not to obtain in\nall cases. The examples of innovations which contract its ancient\nlimits, as well in these States as in Great Britain, afford a strong\npresumption that its former extent has been found inconvenient, and\ngive room to suppose that future experience may discover the\npropriety and utility of other exceptions. I suspect it to be\nimpossible in the nature of the thing to fix the salutary point at\nwhich the operation of the institution ought to stop, and this is\nwith me a strong argument for leaving the matter to the discretion\nof the legislature.\n\nThis is now clearly understood to be the case in Great Britain,\nand it is equally so in the State of Connecticut; and yet it may be\nsafely affirmed that more numerous encroachments have been made upon\nthe trial by jury in this State since the Revolution, though\nprovided for by a positive article of our constitution, than has\nhappened in the same time either in Connecticut or Great Britain.\nIt may be added that these encroachments have generally originated\nwith the men who endeavor to persuade the people they are the\nwarmest defenders of popular liberty, but who have rarely suffered\nconstitutional obstacles to arrest them in a favorite career. The\ntruth is that the general GENIUS of a government is all that can be\nsubstantially relied upon for permanent effects. Particular\nprovisions, though not altogether useless, have far less virtue and\nefficacy than are commonly ascribed to them; and the want of them\nwill never be, with men of sound discernment, a decisive objection\nto any plan which exhibits the leading characters of a good\ngovernment.\n\nIt certainly sounds not a little harsh and extraordinary to\naffirm that there is no security for liberty in a Constitution which\nexpressly establishes the trial by jury in criminal cases, because\nit does not do it in civil also; while it is a notorious fact that\nConnecticut, which has been always regarded as the most popular\nState in the Union, can boast of no constitutional provision for\neither.\n\nPUBLIUS.\n\n1. It has been erroneously insinuated, with regard to the court\nof chancery, that this court generally tries disputed facts by a\njury. The truth is, that references to a jury in that court rarely\nhappen, and are in no case necessary but where the validity of a\ndevise of land comes into question.\n\n2. It is true that the principles by which that relief is\ngoverned are now reduced to a regular system; but it is not the\nless true that they are in the main applicable to SPECIAL\ncircumstances, which form exceptions to general rules.\n\n3. Vide No. 81, in which the supposition of its being\nabolished by the appellate jurisdiction in matters of fact being\nvested in the Supreme Court, is examined and refuted.\n", "date": null, "title": "The Judiciary Continued in Relation to Trial by Jury", "paper_id": 83, "venue": "From MCLEAN's Edition, New York"}
{"author": "HAMILTON", "text": "To the People of the State of New York:\n\nIN THE course of the foregoing review of the Constitution, I\nhave taken notice of, and endeavored to answer most of the\nobjections which have appeared against it. There, however, remain a\nfew which either did not fall naturally under any particular head or\nwere forgotten in their proper places. These shall now be\ndiscussed; but as the subject has been drawn into great length, I\nshall so far consult brevity as to comprise all my observations on\nthese miscellaneous points in a single paper.\n\nThe most considerable of the remaining objections is that the\nplan of the convention contains no bill of rights. Among other\nanswers given to this, it has been upon different occasions remarked\nthat the constitutions of several of the States are in a similar\npredicament. I add that New York is of the number. And yet the\nopposers of the new system, in this State, who profess an unlimited\nadmiration for its constitution, are among the most intemperate\npartisans of a bill of rights. To justify their zeal in this\nmatter, they allege two things: one is that, though the\nconstitution of New York has no bill of rights prefixed to it, yet\nit contains, in the body of it, various provisions in favor of\nparticular privileges and rights, which, in substance amount to the\nsame thing; the other is, that the Constitution adopts, in their\nfull extent, the common and statute law of Great Britain, by which\nmany other rights, not expressed in it, are equally secured.\n\nTo the first I answer, that the Constitution proposed by the\nconvention contains, as well as the constitution of this State, a\nnumber of such provisions.\n\nIndependent of those which relate to the structure of the\ngovernment, we find the following: Article 1, section 3, clause 7\n\"Judgment in cases of impeachment shall not extend further than to\nremoval from office, and disqualification to hold and enjoy any\noffice of honor, trust, or profit under the United States; but the\nparty convicted shall, nevertheless, be liable and subject to\nindictment, trial, judgment, and punishment according to law.\"\nSection 9, of the same article, clause 2 \"The privilege of the\nwrit of habeas corpus shall not be suspended, unless when in\ncases of rebellion or invasion the public safety may require it.\"\nClause 3 \"No bill of attainder or ex-post-facto law shall be\npassed.\" Clause 7 \"No title of nobility shall be granted by the\nUnited States; and no person holding any office of profit or trust\nunder them, shall, without the consent of the Congress, accept of\nany present, emolument, office, or title of any kind whatever, from\nany king, prince, or foreign state.\" Article 3, section 2, clause\n3 \"The trial of all crimes, except in cases of impeachment, shall\nbe by jury; and such trial shall be held in the State where the\nsaid crimes shall have been committed; but when not committed\nwithin any State, the trial shall be at such place or places as the\nCongress may by law have directed.\" Section 3, of the same\narticle \"Treason against the United States shall consist only in\nlevying war against them, or in adhering to their enemies, giving\nthem aid and comfort. No person shall be convicted of treason,\nunless on the testimony of two witnesses to the same overt act, or\non confession in open court.\" And clause 3, of the same\nsection \"The Congress shall have power to declare the punishment of\ntreason; but no attainder of treason shall work corruption of\nblood, or forfeiture, except during the life of the person attainted.\"\nIt may well be a question, whether these are not, upon the\nwhole, of equal importance with any which are to be found in the\nconstitution of this State. The establishment of the writ of\nhabeas corpus, the prohibition of ex-post-facto laws, and of\nTITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN\nOUR CONSTITUTION, are perhaps greater securities to liberty and\nrepublicanism than any it contains. The creation of crimes after\nthe commission of the fact, or, in other words, the subjecting of\nmen to punishment for things which, when they were done, were\nbreaches of no law, and the practice of arbitrary imprisonments,\nhave been, in all ages, the favorite and most formidable instruments\nof tyranny. The observations of the judicious Blackstone, [1] in\nreference to the latter, are well worthy of recital: \"To bereave a\nman of life, Usays he,e or by violence to confiscate his estate,\nwithout accusation or trial, would be so gross and notorious an act\nof despotism, as must at once convey the alarm of tyranny throughout\nthe whole nation; but confinement of the person, by secretly\nhurrying him to jail, where his sufferings are unknown or forgotten,\nis a less public, a less striking, and therefore A MORE DANGEROUS\nENGINE of arbitrary government.\" And as a remedy for this fatal\nevil he is everywhere peculiarly emphatical in his encomiums on the\nhabeas-corpus act, which in one place he calls \"the BULWARK of\nthe British Constitution.\" [2]\n\nNothing need be said to illustrate the importance of the\nprohibition of titles of nobility. This may truly be denominated\nthe corner-stone of republican government; for so long as they are\nexcluded, there can never be serious danger that the government will\nbe any other than that of the people.\n\nTo the second that is, to the pretended establishment of the\ncommon and state law by the Constitution, I answer, that they are\nexpressly made subject \"to such alterations and provisions as the\nlegislature shall from time to time make concerning the same.\"\nThey are therefore at any moment liable to repeal by the ordinary\nlegislative power, and of course have no constitutional sanction.\nThe only use of the declaration was to recognize the ancient law\nand to remove doubts which might have been occasioned by the\nRevolution. This consequently can be considered as no part of a\ndeclaration 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\nare, in 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,\nobtained by the barons, sword in hand, from King John. Such were\nthe subsequent confirmations of that charter by succeeding princes.\nSuch was the PETITION OF RIGHT assented to by Charles I., in the\nbeginning of his reign. Such, also, was the Declaration of Right\npresented by the Lords and Commons to the Prince of Orange in 1688,\nand afterwards thrown into the form of an act of parliament called\nthe Bill of Rights. It is evident, therefore, that, according to\ntheir primitive signification, they have no application to\nconstitutions professedly founded upon the power of the people, and\nexecuted by their immediate representatives and servants. Here, in\nstrictness, the people surrender nothing; and as they retain every\nthing they have no need of particular reservations. \"WE, THE\nPEOPLE of the United States, to secure the blessings of liberty to\nourselves and our posterity, do ORDAIN and ESTABLISH this\nConstitution for the United States of America.\" Here is a better\nrecognition of popular rights, than volumes of those aphorisms which\nmake the principal figure in several of our State bills of rights,\nand which would sound much better in a treatise of ethics than in a\nconstitution of government.\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\nspecies of personal and private concerns. If, therefore, the loud\nclamors against the plan of the convention, on this score, are well\nfounded, no epithets of reprobation will be too strong for the\nconstitution of this State. But the truth is, that both of them\ncontain all which, in relation to their objects, is reasonably to be\ndesired.\n\nI go further, and affirm that bills of rights, in the sense and\nto the extent in which they are contended for, are not only\nunnecessary in the proposed Constitution, but would even be\ndangerous. They would contain various exceptions to powers not\ngranted; and, on this very account, would afford a colorable\npretext to claim more than were granted. For why declare that\nthings shall not be done which there is no power to do? Why, for\ninstance, should it be said that the liberty of the press shall not\nbe restrained, when no power is given by which restrictions may be\nimposed? I will not contend that such a provision would confer a\nregulating power; but it is evident that it would furnish, to men\ndisposed to usurp, a plausible pretense for claiming that power.\nThey might urge with a semblance of reason, that the Constitution\nought not to be charged with the absurdity of providing against the\nabuse of an authority which was not given, and that the provision\nagainst restraining the liberty of the press afforded a clear\nimplication, that a power to prescribe proper regulations concerning\nit was intended to be vested in the national government. This may\nserve as a specimen of the numerous handles which would be given to\nthe doctrine of constructive powers, by the indulgence of an\ninjudicious zeal for bills of rights.\n\nOn the subject of the liberty of the press, as much as has been\nsaid, I cannot forbear adding a remark or two: in the first place,\nI observe, that there is not a syllable concerning it in the\nconstitution of this State; in the next, I contend, that whatever\nhas been said about it in that of any other State, amounts to\nnothing. What signifies a declaration, that \"the liberty of the\npress shall be inviolably preserved\"? What is the liberty of the\npress? Who can give it any definition which would not leave the\nutmost latitude for evasion? I hold it to be impracticable; and\nfrom this I infer, that its security, whatever fine declarations may\nbe inserted in any constitution respecting it, must altogether\ndepend on public opinion, and on the general spirit of the people\nand of the government. [3] And here, after all, as is intimated\nupon another occasion, must we seek for the only solid basis of all\nour rights.\n\nThere remains but one other view of this matter to conclude the\npoint. The truth is, after all the declamations we have heard, that\nthe Constitution is itself, in every rational sense, and to every\nuseful purpose, A BILL OF RIGHTS. The several bills of rights in\nGreat Britain form its Constitution, and conversely the constitution\nof each State is its bill of rights. And the proposed Constitution,\nif adopted, will be the bill of rights of the Union. Is it one\nobject of a bill of rights to declare and specify the political\nprivileges of the citizens in the structure and administration of\nthe government? This is done in the most ample and precise manner\nin the plan of the convention; comprehending various precautions\nfor the public security, which are not to be found in any of the\nState constitutions. Is another object of a bill of rights to\ndefine certain immunities and modes of proceeding, which are\nrelative to personal and private concerns? This we have seen has\nalso been attended to, in a variety of cases, in the same plan.\nAdverting therefore to the substantial meaning of a bill of rights,\nit is absurd to allege that it is not to be found in the work of the\nconvention. It may be said that it does not go far enough, though\nit will not be easy to make this appear; but it can with no\npropriety be contended that there is no such thing. It certainly\nmust be immaterial what mode is observed as to the order of\ndeclaring the rights of the citizens, if they are to be found in any\npart of the instrument which establishes the government. And hence\nit must be apparent, that much of what has been said on this subject\nrests merely on verbal and nominal distinctions, entirely foreign\nfrom the substance of the thing.\n\nAnother objection which has been made, and which, from the\nfrequency of its repetition, it is to be presumed is relied on, is\nof this nature: \"It is improper,\" say the objectors, \"to confer such\nlarge powers, as are proposed, upon the national government, because\nthe seat of that government must of necessity be too remote from\nmany of the States to admit of a proper knowledge on the part of the\nconstituent, of the conduct of the representative body.\" This\nargument, if it proves any thing, proves that there ought to be no\ngeneral government whatever. For the powers which, it seems to be\nagreed on all hands, ought to be vested in the Union, cannot be\nsafely intrusted to a body which is not under every requisite\ncontrol. But there are satisfactory reasons to show that the\nobjection is in reality not well founded. There is in most of the\narguments which relate to distance a palpable illusion of the\nimagination. What are the sources of information by which the\npeople in Montgomery County must regulate their judgment of the\nconduct of their representatives in the State legislature? Of\npersonal observation they can have no benefit. This is confined to\nthe citizens on the spot. They must therefore depend on the\ninformation of intelligent men, in whom they confide; and how must\nthese men obtain their information? Evidently from the complexion\nof public measures, from the public prints, from correspondences\nwith their representatives, and with other persons who reside at the\nplace of their deliberations. This does not apply to Montgomery\nCounty only, but to all the counties at any considerable distance\nfrom the seat of government.\n\nIt is equally evident that the same sources of information would\nbe open to the people in relation to the conduct of their\nrepresentatives in the general government, and the impediments to a\nprompt communication which distance may be supposed to create, will\nbe overbalanced by the effects of the vigilance of the State\ngovernments. The executive and legislative bodies of each State\nwill be so many sentinels over the persons employed in every\ndepartment of the national administration; and as it will be in\ntheir power to adopt and pursue a regular and effectual system of\nintelligence, they can never be at a loss to know the behavior of\nthose who represent their constituents in the national councils, and\ncan readily communicate the same knowledge to the people. Their\ndisposition to apprise the community of whatever may prejudice its\ninterests from another quarter, may be relied upon, if it were only\nfrom the rivalship of power. And we may conclude with the fullest\nassurance that the people, through that channel, will be better\ninformed of the conduct of their national representatives, than they\ncan be by any means they now possess of that of their State\nrepresentatives.\n\nIt ought also to be remembered that the citizens who inhabit the\ncountry at and near the seat of government will, in all questions\nthat affect the general liberty and prosperity, have the same\ninterest with those who are at a distance, and that they will stand\nready to sound the alarm when necessary, and to point out the actors\nin any pernicious project. The public papers will be expeditious\nmessengers of intelligence to the most remote inhabitants of the\nUnion.\n\nAmong the many curious objections which have appeared against\nthe proposed Constitution, the most extraordinary and the least\ncolorable is derived from the want of some provision respecting the\ndebts due TO the United States. This has been represented as a\ntacit relinquishment of those debts, and as a wicked contrivance to\nscreen public defaulters. The newspapers have teemed with the most\ninflammatory railings on this head; yet there is nothing clearer\nthan that the suggestion is entirely void of foundation, the\noffspring of extreme ignorance or extreme dishonesty. In addition\nto the remarks I have made upon the subject in another place, I\nshall only observe that as it is a plain dictate of common-sense, so\nit is also an established doctrine of political law, that \"STATES\nNEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF\nTHEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.\" [4]\nThe last objection of any consequence, which I at present\nrecollect, turns upon the article of expense. If it were even true,\nthat the adoption of the proposed government would occasion a\nconsiderable increase of expense, it would be an objection that\nought to have no weight against the plan.\n\nThe great bulk of the citizens of America are with reason\nconvinced, that Union is the basis of their political happiness.\nMen of sense of all parties now, with few exceptions, agree that it\ncannot be preserved under the present system, nor without radical\nalterations; that new and extensive powers ought to be granted to\nthe national head, and that these require a different organization\nof the federal government a single body being an unsafe depositary\nof such ample authorities. In conceding all this, the question of\nexpense must be given up; for it is impossible, with any degree of\nsafety, to narrow the foundation upon which the system is to stand.\nThe two branches of the legislature are, in the first instance, to\nconsist of only sixty-five persons, which is the same number of\nwhich Congress, under the existing Confederation, may be composed.\nIt is true that this number is intended to be increased; but this\nis to keep pace with the progress of the population and resources of\nthe country. It is evident that a less number would, even in the\nfirst instance, have been unsafe, and that a continuance of the\npresent number would, in a more advanced stage of population, be a\nvery inadequate representation of the people.\n\nWhence is the dreaded augmentation of expense to spring? One\nsource indicated, is the multiplication of offices under the new\ngovernment. Let us examine this a little.\n\nIt is evident that the principal departments of the\nadministration under the present government, are the same which will\nbe required under the new. There are now a Secretary of War, a\nSecretary of Foreign Affairs, a Secretary for Domestic Affairs, a\nBoard of Treasury, consisting of three persons, a Treasurer,\nassistants, clerks, etc. These officers are indispensable under any\nsystem, and will suffice under the new as well as the old. As to\nambassadors and other ministers and agents in foreign countries, the\nproposed Constitution can make no other difference than to render\ntheir characters, where they reside, more respectable, and their\nservices more useful. As to persons to be employed in the\ncollection of the revenues, it is unquestionably true that these\nwill form a very considerable addition to the number of federal\nofficers; but it will not follow that this will occasion an\nincrease of public expense. It will be in most cases nothing more\nthan an exchange of State for national officers. In the collection\nof all duties, for instance, the persons employed will be wholly of\nthe latter description. The States individually will stand in no\nneed of any for this purpose. What difference can it make in point\nof expense to pay officers of the customs appointed by the State or\nby the United States? There is no good reason to suppose that\neither the number or the salaries of the latter will be greater than\nthose of the former.\n\nWhere then are we to seek for those additional articles of\nexpense which are to swell the account to the enormous size that has\nbeen represented to us? The chief item which occurs to me respects\nthe support of the judges of the United States. I do not add the\nPresident, because there is now a president of Congress, whose\nexpenses may not be far, if any thing, short of those which will be\nincurred on account of the President of the United States. The\nsupport of the judges will clearly be an extra expense, but to what\nextent will depend on the particular plan which may be adopted in\nregard to this matter. But upon no reasonable plan can it amount to\na sum which will be an object of material consequence.\n\nLet us now see what there is to counterbalance any extra expense\nthat may attend the establishment of the proposed government. The\nfirst thing which presents itself is that a great part of the\nbusiness which now keeps Congress sitting through the year will be\ntransacted by the President. Even the management of foreign\nnegotiations will naturally devolve upon him, according to general\nprinciples concerted with the Senate, and subject to their final\nconcurrence. Hence it is evident that a portion of the year will\nsuffice for the session of both the Senate and the House of\nRepresentatives; we may suppose about a fourth for the latter and a\nthird, or perhaps half, for the former. The extra business of\ntreaties and appointments may give this extra occupation to the\nSenate. From this circumstance we may infer that, until the House\nof Representatives shall be increased greatly beyond its present\nnumber, there will be a considerable saving of expense from the\ndifference between the constant session of the present and the\ntemporary session of the future Congress.\n\nBut there is another circumstance of great importance in the\nview of economy. The business of the United States has hitherto\noccupied the State legislatures, as well as Congress. The latter\nhas made requisitions which the former have had to provide for.\nHence it has happened that the sessions of the State legislatures\nhave been protracted greatly beyond what was necessary for the\nexecution of the mere local business of the States. More than half\ntheir time has been frequently employed in matters which related to\nthe United States. Now the members who compose the legislatures of\nthe several States amount to two thousand and upwards, which number\nhas hitherto performed what under the new system will be done in the\nfirst instance by sixty-five persons, and probably at no future\nperiod by above a fourth or fifth of that number. The Congress\nunder the proposed government will do all the business of the United\nStates themselves, without the intervention of the State\nlegislatures, who thenceforth will have only to attend to the\naffairs of their particular States, and will not have to sit in any\nproportion as long as they have heretofore done. This difference in\nthe time of the sessions of the State legislatures will be clear\ngain, and will alone form an article of saving, which may be\nregarded as an equivalent for any additional objects of expense that\nmay be occasioned by the adoption of the new system.\n\nThe result from these observations is that the sources of\nadditional expense from the establishment of the proposed\nConstitution are much fewer than may have been imagined; that they\nare counterbalanced by considerable objects of saving; and that\nwhile it is questionable on which side the scale will preponderate,\nit is certain that a government less expensive would be incompetent\nto the purposes of the Union.\n\nPUBLIUS.\n\n1. Vide Blackstone's \"Commentaries,\" vol. 1., p. 136.\n\n2. Vide Blackstone's \"Commentaries,\" vol. iv., p. 438.\n\n3. To show that there is a power in the Constitution by which\nthe liberty of the press may be affected, recourse has been had to\nthe power of taxation.  It is said that duties may be laid upon the\npublications so high as to amount to a prohibition.  I know not by\nwhat logic it could be maintained, that the declarations in the\nState constitutions, in favor of the freedom of the press, would be\na constitutional impediment to the imposition of duties upon\npublications by the State legislatures. It cannot certainly be\npretended that any degree of duties, however low, would be an\nabridgment of the liberty of the press.  We know that newspapers\nare taxed in Great Britain, and yet it is notorious that the press\nnowhere enjoys greater liberty than in that country. And if duties\nof any kind may be laid without a violation of that liberty, it is\nevident that the extent must depend on legislative discretion,\nrespecting the liberty of the press, will give it no greater\nsecurity than it will have without them. The same invasions of it\nmay be effected under the State constitutions which contain those\ndeclarations through the means of taxation, as under the proposed\nConstitution, which has nothing of the kind. It would be quite as\nsignificant to declare that government ought to be free, that taxes\nought not to be excessive, etc., as that the liberty of the press\nought not to be restrained.\n", "date": null, "title": "Certain General and Miscellaneous Objections to the Constitution Considered and Answered", "paper_id": 84, "venue": "From McLEAN's Edition, New York"}
{"author": "HAMILTON", "text": "To 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\nyour own State constitution,\" and \"the additional security which\nits adoption will afford to republican government, to liberty, and\nto property.\" But these heads have been so fully anticipated and\nexhausted in the progress of the work, that it would now scarcely be\npossible to do any thing more than repeat, in a more dilated form,\nwhat has been heretofore said, which the advanced stage of the\nquestion, and the time already spent upon it, conspire to forbid.\n\nIt is remarkable, that the resemblance of the plan of the\nconvention to the act which organizes the government of this State\nholds, not less with regard to many of the supposed defects, than to\nthe real excellences of the former. Among the pretended defects are\nthe re-eligibility of the Executive, the want of a council, the\nomission of a formal bill of rights, the omission of a provision\nrespecting the liberty of the press. These and several others which\nhave been noted in the course of our inquiries are as much\nchargeable on the existing constitution of this State, as on the one\nproposed for the Union; and a man must have slender pretensions to\nconsistency, who can rail at the latter for imperfections which he\nfinds no difficulty in excusing in the former. Nor indeed can there\nbe a better proof of the insincerity and affectation of some of the\nzealous adversaries of the plan of the convention among us, who\nprofess to be the devoted admirers of the government under which\nthey live, than the fury with which they have attacked that plan,\nfor matters in regard to which our own constitution is equally or\nperhaps more vulnerable.\n\nThe additional securities to republican government, to liberty\nand to property, to be derived from the adoption of the plan under\nconsideration, consist chiefly in the restraints which the\npreservation of the Union will impose on local factions and\ninsurrections, and on the ambition of powerful individuals in single\nStates, who may acquire credit and influence enough, from leaders\nand favorites, to become the despots of the people; in the\ndiminution of the opportunities to foreign intrigue, which the\ndissolution of the Confederacy would invite and facilitate; in the\nprevention of extensive military establishments, which could not\nfail to grow out of wars between the States in a disunited\nsituation; in the express guaranty of a republican form of\ngovernment to each; in the absolute and universal exclusion of\ntitles of nobility; and in the precautions against the repetition\nof those practices on the part of the State governments which have\nundermined the foundations of property and credit, have planted\nmutual distrust in the breasts of all classes of citizens, and have\noccasioned an almost universal prostration of morals.\n\nThus have I, fellow-citizens, executed the task I had assigned\nto myself; with what success, your conduct must determine. I trust\nat least you will admit that I have not failed in the assurance I\ngave you respecting the spirit with which my endeavors should be\nconducted. I have addressed myself purely to your judgments, and\nhave studiously avoided those asperities which are too apt to\ndisgrace political disputants of all parties, and which have been\nnot a little provoked by the language and conduct of the opponents\nof the Constitution. The charge of a conspiracy against the\nliberties of the people, which has been indiscriminately brought\nagainst the advocates of the plan, has something in it too wanton\nand too malignant, not to excite the indignation of every man who\nfeels in his own bosom a refutation of the calumny. The perpetual\nchanges which have been rung upon the wealthy, the well-born, and\nthe great, have been such as to inspire the disgust of all sensible\nmen. And the unwarrantable concealments and misrepresentations\nwhich have been in various ways practiced to keep the truth from the\npublic eye, have been of a nature to demand the reprobation of all\nhonest men. It is not impossible that these circumstances may have\noccasionally betrayed me into intemperances of expression which I\ndid not intend; it is certain that I have frequently felt a\nstruggle between sensibility and moderation; and if the former has\nin 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\nthese papers, the proposed Constitution has not been satisfactorily\nvindicated from the aspersions thrown upon it; and whether it has\nnot been shown to be worthy of the public approbation, and necessary\nto the public safety and prosperity. Every man is bound to answer\nthese questions to himself, according to the best of his conscience\nand understanding, and to act agreeably to the genuine and sober\ndictates of his judgment. This is a duty from which nothing can\ngive him a dispensation. 'T is one that he is called upon, nay,\nconstrained by all the obligations that form the bands of society,\nto discharge sincerely and honestly. No partial motive, no\nparticular interest, no pride of opinion, no temporary passion or\nprejudice, will justify to himself, to his country, or to his\nposterity, an improper election of the part he is to act. Let him\nbeware of an obstinate adherence to party; let him reflect that the\nobject upon which he is to decide is not a particular interest of\nthe community, but the very existence of the nation; and let him\nremember that a majority of America has already given its sanction\nto the plan which he is to approve or reject.\n\nI shall not dissemble that I feel an entire confidence in the\narguments which recommend the proposed system to your adoption, and\nthat I am unable to discern any real force in those by which it has\nbeen opposed. I am persuaded that it is the best which our\npolitical situation, habits, and opinions will admit, and superior\nto any the revolution has produced.\n\nConcessions on the part of the friends of the plan, that it has\nnot a claim to absolute perfection, have afforded matter of no small\ntriumph to its enemies. \"Why,\" say they, \"should we adopt an\nimperfect thing? Why not amend it and make it perfect before it is\nirrevocably established?\" This may be plausible enough, but it is\nonly plausible. In the first place I remark, that the extent of\nthese concessions has been greatly exaggerated. They have been\nstated as amounting to an admission that the plan is radically\ndefective, and that without material alterations the rights and the\ninterests of the community cannot be safely confided to it. This,\nas far as I have understood the meaning of those who make the\nconcessions, is an entire perversion of their sense. No advocate of\nthe measure can be found, who will not declare as his sentiment,\nthat the system, though it may not be perfect in every part, is,\nupon 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\npromises every species of security which a reasonable people can\ndesire.\n\nI answer in the next place, that I should esteem it the extreme\nof imprudence to prolong the precarious state of our national\naffairs, and to expose the Union to the jeopardy of successive\nexperiments, in the chimerical pursuit of a perfect plan. I never\nexpect to see a perfect work from imperfect man. The result of the\ndeliberations of all collective bodies must necessarily be a\ncompound, as well of the errors and prejudices, as of the good sense\nand wisdom, of the individuals of whom they are composed. The\ncompacts which are to embrace thirteen distinct States in a common\nbond of amity and union, must as necessarily be a compromise of as\nmany dissimilar interests and inclinations. How can perfection\nspring from such materials?\n\nThe reasons assigned in an excellent little pamphlet lately\npublished in this city, [1] are unanswerable to show the utter\nimprobability of assembling a new convention, under circumstances in\nany degree so favorable to a happy issue, as those in which the late\nconvention met, deliberated, and concluded. I will not repeat the\narguments there used, as I presume the production itself has had an\nextensive circulation. It is certainly well worthy the perusal of\nevery friend to his country. There is, however, one point of light\nin which the subject of amendments still remains to be considered,\nand in which it has not yet been exhibited to public view. I cannot\nresolve to conclude without first taking a survey of it in this\naspect.\n\nIt appears to me susceptible of absolute demonstration, that it\nwill be far more easy to obtain subsequent than previous amendments\nto the Constitution. The moment an alteration is made in the\npresent plan, it becomes, to the purpose of adoption, a new one, and\nmust undergo a new decision of each State. To its complete\nestablishment throughout the Union, it will therefore require the\nconcurrence of thirteen States. If, on the contrary, the\nConstitution proposed should once be ratified by all the States as\nit stands, alterations in it may at any time be effected by nine\nStates. Here, then, the chances are as thirteen to nine [2] in\nfavor of subsequent amendment, rather than of the original adoption\nof 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\nthirteen independent States are to be accommodated in their\ninterests or opinions of interest. We may of course expect to see,\nin any body of men charged with its original formation, very\ndifferent combinations of the parts upon different points. Many of\nthose who form a majority on one question, may become the minority\non a second, and an association dissimilar to either may constitute\nthe majority on a third. Hence the necessity of moulding and\narranging all the particulars which are to compose the whole, in\nsuch a manner as to satisfy all the parties to the compact; and\nhence, also, an immense multiplication of difficulties and\ncasualties in obtaining the collective assent to a final act. The\ndegree of that multiplication must evidently be in a ratio to the\nnumber of particulars and the number of parties.\n\nBut every amendment to the Constitution, if once established,\nwould be a single proposition, and might be brought forward singly.\nThere would then be no necessity for management or compromise, in\nrelation to any other point no giving nor taking. The will of the\nrequisite number would at once bring the matter to a decisive issue.\nAnd consequently, whenever nine, or rather ten States, were united\nin the desire of a particular amendment, that amendment must\ninfallibly take place. There can, therefore, be no comparison\nbetween the facility of affecting an amendment, and that of\nestablishing in the first instance a complete Constitution.\n\nIn opposition to the probability of subsequent amendments, it\nhas been urged that the persons delegated to the administration of\nthe national government will always be disinclined to yield up any\nportion of the authority of which they were once possessed. For my\nown part I acknowledge a thorough conviction that any amendments\nwhich may, upon mature consideration, be thought useful, will be\napplicable to the organization of the government, not to the mass of\nits powers; and on this account alone, I think there is no weight\nin the observation just stated. I also think there is little weight\nin it on another account. The intrinsic difficulty of governing\nthirteen States at any rate, independent of calculations upon an\nordinary degree of public spirit and integrity, will, in my opinion\nconstantly impose on the national rulers the necessity of a spirit\nof accommodation to the reasonable expectations of their\nconstituents. But there is yet a further consideration, which\nproves beyond the possibility of a doubt, that the observation is\nfutile. It is this that the national rulers, whenever nine States\nconcur, will have no option upon the subject. By the fifth article\nof the plan, the Congress will be obliged \"on the application of the\nlegislatures of two thirds of the States, which at present amount to\nnine, to call a convention for proposing amendments, which shall be\nvalid, to all intents and purposes, as part of the Constitution,\nwhen ratified by the legislatures of three fourths of the States, or\nby conventions in three fourths thereof.\" The words of this\narticle are peremptory. The Congress \"shall call a convention.\"\nNothing in this particular is left to the discretion of that body.\nAnd of consequence, all the declamation about the disinclination to\na change vanishes in air. Nor however difficult it may be supposed\nto unite two thirds or three fourths of the State legislatures, in\namendments which may affect local interests, can there be any room\nto apprehend any such difficulty in a union on points which are\nmerely relative to the general liberty or security of the people.\nWe may safely rely on the disposition of the State legislatures to\nerect barriers against the encroachments of the national authority.\n\nIf the foregoing argument is a fallacy, certain it is that I am\nmyself deceived by it, for it is, in my conception, one of those\nrare instances in which a political truth can be brought to the test\nof a mathematical demonstration. Those who see the matter in the\nsame light with me, however zealous they may be for amendments, must\nagree in the propriety of a previous adoption, as the most direct\nroad to their own object.\n\nThe zeal for attempts to amend, prior to the establishment of\nthe Constitution, must abate in every man who is ready to accede to\nthe truth of the following observations of a writer equally solid\nand ingenious: \"To balance a large state or society Usays hee,\nwhether monarchical or republican, on general laws, is a work of so\ngreat difficulty, that no human genius, however comprehensive, is\nable, by the mere dint of reason and reflection, to effect it. The\njudgments of many must unite in the work; experience must guide\ntheir labor; time must bring it to perfection, and the feeling of\ninconveniences must correct the mistakes which they INEVITABLY fall\ninto in their first trials and experiments.\" [3] These judicious\nreflections contain a lesson of moderation to all the sincere lovers\nof the Union, and ought to put them upon their guard against\nhazarding anarchy, civil war, a perpetual alienation of the States\nfrom each other, and perhaps the military despotism of a victorious\ndemagogue, in the pursuit of what they are not likely to obtain, but\nfrom time and experience. It may be in me a defect of political\nfortitude, but I acknowledge that I cannot entertain an equal\ntranquillity with those who affect to treat the dangers of a longer\ncontinuance 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\nthe voluntary consent of a whole people, is a prodigy, to the\ncompletion of which I look forward with trembling anxiety. I can\nreconcile it to no rules of prudence to let go the hold we now have,\nin so arduous an enterprise, upon seven out of the thirteen States,\nand after having passed over so considerable a part of the ground,\nto recommence the course. I dread the more the consequences of new\nattempts, because I know that powerful individuals, in this and in\nother States, are enemies to a general national government in every\npossible shape.\n\nPUBLIUS.\n\n1. Entitled \"An Address to the People of the State of New\nYork.\"\n\n2. It may rather be said TEN, for though two thirds may set on\nfoot the measure, three fourths must ratify.\n\n3. Hume's \"Essays,\" vol. i., page 128: \"The Rise of Arts and\nSciences.\"\n", "date": null, "title": "Concluding Remarks", "paper_id": 85, "venue": "From MCLEAN's Edition, New York"}