r\ u CORNELL UNIVERSITY LIBRARY 3 1924 105 726 214 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924105726214 In compliance with current Copyright law, Cornell University Library produced this replacement volume on paper that meets the ANSI Standard Z39.48-1992 to replace the irreparably deteriorated original. 2007 iSiT djatnell HtttocrBttg Utbratjj Jtljata, Wen) ^atk '■■: Wijits l^tBtnrlcal ^jthcatij THE GIFT OF PRESIDENT WHITE MAINTAINED BY THE UNIVERSITY IN ACCORD- ^- ANCE WITH TH^-PROVISIONS OF THE GIFT THE FEDERALIST A COMMENTARY ON The Cons i itution of the U nited States A Collection of Essays written in Support of the Constitution AGREED upon SEPTEMBER I7, I787, IIY THE FEDERAL CONVENTION REPRINTED FROM THE ORIGINAL TEXT OF ALEXANDER HAMILTON John Jay, and James Madison edited by HENRY CABOT LODGE Author of " Life and Letters of George Cabot," " A Short History of the English Colonies in America," "Alexander Hamilton," and '^Daniel Webster" (in *' American Statesmen " Series), and " Studies in History " NEW YORK & LONDON G. P. PUTNAM'S SONS SC^e %nkkti\iackn ^nss 189s iA.\&olio COPYRIGHT BY G.P. PUTNAM'S SONS 'a./C (/\j) Ap-&yo7 Press of G. P- Putnam'u Sons New York ^^^^ ^■^^^ P'^^^^^ati^s'^^wni^^^ ^^m m S ^^^s. iS^^^^^^ CONTENTS. Introduction : I. — The Authorship of the ." Federalist " II. — The Bibliography of the " Federalist ' III. — The Text of the " Federalist " PAGlf xxiif XXXV . xlii THE FEDERALIST. No. I. — General Introduction ... .3 Purpose of the series to show the utility of the Union to political prosperity, etc. No. II. — Concerning Dangers from Foreign Force and Influence 7 General introduction to the'subject. C No. III. — The Same Subject Continued . . . 12 The Union a protection against such dangers, by removing the usual causes of just war, and by preventing violations of compacts and treaties, on account of greater efficiency and better character than are possessed by the State governments — The Union also better able to settle international differences. No. VI. — Concerning Dangers from Dissensions be- tween the States ....... Reasons for these dissensions if States remain disunited, and espe- cially the dangers from personal ambitions in small States — Historical ^ No. IV. — The Same Subject Continued . . . .17 Unjust causes of war avoided — Greater ability to compel respect of other nations and prevent their attacking us from jealousy of our VO^ successful trade. No. V. — The Same Subject Continued . . . .22 Union secures us from foreign influence in the several States which would exist if they were not united, and prevents their alliance with foreign and rival nations. 26 VI THE FEDERALIST. PAGE examples — The Shays rebellion — Arguments of those who favor separate States answered — Historical examples — Appeal to the people from these examples. No. VII. — The Same Subject Continued . . . .32 Causes for dissensions among States if disunited enumerated. No. VIII. — The Consequences of Hostilities between THE States ^ . . . . . . . .39 First, destruction of life and property ; then, standing armies, ex- tension of executive power, the rise of the military over the civil power — Objections to the Union on this score answered — Army not dangerous to liberty, if there is a Union — Examples of Greece and of Great Britain. No. IX. — The Union as a Safeguard against Domestic Faction and Insurrection 4^ Danger of these troubles in republics, and the argument thus afforded to the advocates of despotisms — The advantage of a Confed- eracy — Historical examples — Montesquieu's views — Distinction be- tween confederation and consolidation — Nature of a confederacy The proposed Constitution a confederate-republican form — The Lycian confederacy. SI No. X. — The Same Subject Continued .... Danger of faction in the United States as elsewhere— Nature of a faction— Modes of avoiding this danger— Superiority of a representa- tive government to a democracy in preventing factions — The advan- tage of a large republic in this respect. No. XI. — ^The Utility of the Union in Respect to Com- mercial Relations and a Navy . . 60 Foreign nations jealous of our commerce— Need of uniformity of action— Respect commanded by a navy— Effects of disunion on com- merce—On the fisheries— On the navigation of the Western lakes and the Mississippi river- Jealousy of Spain— Advantages of a navy- Internal commerce — Europe not superior to America. No. XII. — The Utility of the Union in Respect to Revenue . Commerce the best source of wealth, and increases the ability to pay taxes— Indirect taxation best suited to America, and that must come from commerce — Taxation of this sort impossible without Union— The results of a destruction of this resource— The need of revenue, and the best sources for it ensured by Union, 67 CONTENTS. vn No. XIII. — Advantage of the Union in Respect to 73 Economy in Government One civil list instead of many; — Small confederacies will be formed, each as expensive as the single Confederacy proposed — Reasons for this. No. XIV. — Objections to the Proposed Constitution FROM Extent of Territory Answered . . -76 Distinction between a republic and a democracy — Errors as to ancient republics — Extending the limits of a republic — Territory of the United States not too extended, compared with European nations — Jurisdiction of the United States limited to objects of general interest — Purpose of the Constitution to unite States and add to their number — Intefcoufse Befweeri fhe States will be promoted — All the States exposed, and all need protection. No. XV. — The Insufficiency of the Present Confed- eration TO Preserve the Union . . . .82 Evil results of the present Confederation — Analysis of the defects •< of the Confederation — The true purposes of government — Impotence *» of the Confederation for efficient government — Experience under the present Confederation. No. XVI. — The Same Subject Continued . . -91 Experience of other confederacies — The present Confederation leads to domestic war, foreign influence, national ruin, and military despotism — Union cannot so exist — Efficient government must reach individuals — Objections answered. No. XVII. — The Same Subject Continued . . .97 The objection that the reserved rights of the States will be invaded — The real danger the other way — Federal governments tend to anarchy, not tyranny — The States will have a superior influence — ' Reasons for this — Historical examples. No. XVIII. — The Same Subject Continued . . . 102 Historical examples. No. XIX. — The Same Subject Continued . . . 108 Historical examples. No. XX. — The Same Subject Continued . . . .115 The example of the Netherlands viii THE FEDERALIST. PAGE i No/XXI. — Other Defects of the Present Confedera- *%\ TION 1^9 No sanction to its laws, no power to exact obedience, no power to punish disobedience, no power to use force with the States, no power to assist a State in enforcing its own laws — Objection as to interfering with States answered — The principle of raising money by contribu- tions from the States — This rule unequal and oppressive and will become ruinous — The remedy proposed — Advantages of taxes on articles of consumption, and of indirect taxation. No. XXII. — The Same Subject Continued . . .125 No power to regulate commerce — Evils of this lack of power — Raising troops by quota— Evils of such a system — The evils and dangers arising from the equal vote of the States in Congress — The want of a judiciary power — The organization of Congress utterly im- proper for the exercise of suitable powers. — The present Confedera- tion never rati^^"by the people. \ ) No. XXIilr^THE Necessity of a Government as Ener- 'i't. gbtio as the One Proposed to the Preservation of the Union . . 135 The objects of the federal government — The common defence of the States and the powers necessary — Reasons why these powers should not be limited — Failure in this respect of the Confederation — Remedies of the Constitution. No. XXIV. — The Powers Necessary to the Common Defence Further Considered . . . 141 Objection as to standing army answered — These powers given to Congress — Limitations on Congress — No interdiction in State consti- tutions, with two exceptions, to standing armies^None in articles of Confederation — Necessity of such powers in the federal government — Our commerce demands a navy. No. XXV. — The Same Subject Continued . . .146 Objection that States can provide for common defence answered — The common defence cannot be entrusted to the separate States be- cause it would be oppressive to some States, might become dangerous to all, would create jealousies between the States, and might imperil the authority of the Union — Provisions of the Confederation in this respect — A mistake to restrain the discretion of Congress in keeping or raising armies — Disadvantages of militia — Standing armies some- times necessary when there is no foreign war — Example of Pennsyl- vania and Massachusetts — Dangerous to restrain too much the fed- eral government. CONTENTS. No. XXVI. — The Idea of Restraining the Legislative Authority in Regard to the Common Defence Considered 152 Its origin — Not in favor here — The exclusion of military establish- ments in time of peace — Its origin and progress — Giving the author- ity to Congress a sufficient safeguard — Reasons for this — Objection that the Executive may seize supplies answered and an appeal made on this point for Union. No. XXVII. — The Same Subject Continued . . . 159 The objection that the nevr government will require the military force to administer its laws considered — The national government not in danger of popular ill-will any more than those of the States — Reasons for believing that the federal government will be better ad- ministered than those of the States — Less liability to sedition against federal government — Less likely to require force than that proposed by the opposition — Reasons for this — The laws of the Union, so far as they go, to be the supreme law of the land. No. XXVIII. — The Same Subject Continued . . . 163 Cases in which the federal government must use force — Equally necessary in plan of opposition — Employment of force controlled by Congress — If Congress prove unfaithful there is the original right of self-defence — The States' security against Federal usurpation — Fur- ther security in the extent of territory and the limited resources of the country. No. XXIX. — Concerning the Militia .... 168 • Regulation of militia must be confided to federal government to secure uniformity of organization and discipline — Objections that no power is given to federal magistrate to call out fosse comitatus, that danger may be apprehended from authority over militia, an- swered — The project of " Publius " for a militia establishment and its advantages — The appointment of officers of militia by States a sufficient safeguard — Objection as to power to order militia to distant States answered. No. XXX. — Concerning the General Power of Taxa- tion 174 Such power necessary to every constitution — Evil effects of want of such power — Results in present Confederation — Objection that Con- gress should be limited to external taxation answered — Evils and de- fects of the system of requisitions — Without general power existing funds would be diverted in time of war — The general power wilj bring out the resources of the country and give confidence to lenders. THE FEDERALIST. PAGE No. XXXI. — The Same Subject Continued . . .180 The importance of first principles — In morals and politics — Rea- sons for diversity of opinion on these matters^The positions thus far established reviewed. The opposing arguments ?.s to usurpations by the federal government and as to federal aggressions on State gov- ernments reviewed — The popular sympathy with the State govern- ments. No. XXXII. — The Same Subject Continued . . .185 Objection that the general power of taxation would interfere with the State levies considered — Barrier against this danger — Federal sovereignty limited — The only exclusive power of taxation in the federal government is in laying duties on imports — The power of taxation in all other respects concurrent with that of the States — • Proof of this — No repugnancy between federal and State power — Concurrent authority the necessary result of a divided sovereignty. No. XXXIII. — The Same Subject Continued . . . 189 Objections to incidental powers of taxation considered — These powers necessary — Their express grant an act of caution — The fed- eral authorities and then their constituents the judges of the propriety of federal measures — Objections that the taxation laws"of the Union are supreme considered, and the necessity of this supremacy shown ■ — 7These laws limited by the Constitution. No. XXXIV. — The Same Subject Continued . . 194 Concurrent authority concerning taxation the only alternative to complete subordination of the States — Absurdity of denying the prac- ticability of concurrent authority — Examples from Roman history Needs of the federal government for large powers of taxation. No. XXXV. — The Same Subject Continued . . . 200 Reasons for not restricting federal government in the matter of revenue — Restraint would lead to inequality of taxation and oppres- sion — Objections that the interest of the revenue would guard against an extreme tariff, and that all classes of tax-paying citizens cannot be represented, considered— Representation in Congress analyzed in re- gard to taxation— Good effects of mixed representation and the need of extensive information among representatives. No. XXXVI. — The Same Subject Continued . . 207 Representation further considered with reference to taxation The federal government able to exercise the power of internal taxation Better than the system of requisitions— No danger of conflict between State and federal authorities in regard to taxation— Minor objections to power of taxation considered. CONTENTS. XI "(No 30< PAGE XXifi^!^CONCERNING THE DIFFICULTIES OF THE CoNVT^NTiON IN Devising a Proper Form of Gov- ERipiENT 215 DifB'ciilty of discussing public measures in the right spirit — Pre- determined friends and enemies — The Federalist addressed to neither, • but to those who wish merely the happiness of the country — Novelty and difficulties of the work pointed out — The constitution of necessity' not perfect, but the convention worked without party feeling, and all were finally satisfied. No. XXXVIII. — The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed 223 All governments of deliberation and consent hitherto framed by individuals — Examples — Errors in the new system arise from lack of experience — The present situation of America — Existing evils shown, and the futility of the objections and remedies of the opposition. No. XXXIX. — The Conformity of the Plan to Republi- can Principles 232 Only a republican system possible for America — The principles of republican government shown by examples — The proposed Constitu- tion conforms to the standard — Proofs of this from the provisions of the Constitution — Neither wholly national nor wholly federal. No. XL. — The Powers of the Convention to Form a Mixed Government Examined and Sustained . 239 The authority under which the convention acted examined — Proper » even to have exceeded authority, from considerations of duty — Consti- tution merely recommended — Necessity for a radical change — Whether the convention exceeded its powers does not affect the question of ratification. No. XLI. — General View of the Powers Conferred by the Constitution 248 The quantity of power conferred — Not greater than it should be — General objections considered — The objects of the powers conferred — Declaring war and granting letters of marque — Providing armies and fleets — Regulating and calling out the militia — Levying taxes and borrowing money. No. XLII. — The Powers Conferred by the Constitu- tion Further Considered . . . ' . . 258 Regulation of intercourse with foreign nations — Ambassadors, consuls, and treaties — Punishment of piracy, felonies on the high THE FEDERALIST. I'AGE seas, and offences against the laws of nations — Regulation of foreign commerce — The sanction of the slave trade — Objection on that point considered — Maintenance of harmony and proper intercourse among the States — Inter-State commerce and the Indian trade — Coinage of money — Punishment of counterfeiters — Standard of weights and measures — Naturalization — Bankruptcy laws — Rule for proving pub- lic acts — Post-roads and post-o£Sces. No. XLIII. — ^The Same Subject Continued . . . 267 Miscellaneous powers — Copyrights and patents — The Federal city — Punishment of treason — Admission of new States — Government of territories and control of public property — Guaranty to every State of a. republican form of government — Protection of States against invasion and against domestic violence — Assumption of payment of outstanding debts — Amendments to the Constitution — -The establish- "~--. ment of this government on the adherence of nine States — Objection that this is a violation of the Confederation — Relations between ratify- ing States and those which refuse to ratify. No. XLIV. — Restrictions on the Authority of the Several States . . .... 277 Forbidding the establishment of treaties and alliances between the States, the issue of letters of marque, the coinage of money, the issue of bills of credit, the establishment of any legal tender other than gold and silver, the passage of bills of attainder, the passage of ex-post-facto laws, the passage of laws impairing contracts, the estab- lishment of titles of nobility, and the imposition of duties on exports and imports — The power to make all laws necessary and proper to carry the preceding powers into execution — Necessity of such a power — Prohibition of the exercise of any powers not expressly delegated — Positive enumeration of general powers delegated — Negative enumera- tion by specification of reserved powers and by silence — Remedy for an abuse of this general power — The supremacy of the Constitution, the constitutional laws, and treaties — Oath of State and federal officers to support Constitution— No part of the powers delegated unnecessary or improper. No. XLV. — The Alleged Danger from the Powers OF THE Union to the State Governments Con- sidered ......... 281; The new Constitution not dangerous to the State governments, because ; the tendency in confederacies is to weaken the central power ; the State governments will have more influence among the people ; the State governments are essential parts of the federal government ; the officers of the United States are less numerous than CONTENTS. Xlll those of the States ; the reserved powers are relatively greater than those delegated ; the proposed change consists less in giving new than in strengthening old powers. No. XLVI. — The Influence of the State and Federal Governments Compared 292 Federal and State governments only different agents of the same constituents — The first attachment of the people will be to the State governments — Reasons for this — Popularity will come to the federal government only if it is better administered — Reasons for this — Ob- jection on score of federal military power answered — Concluding remarks on the proposition that the powers of the Union will be ^»<«dangerou's to tfie State governments. vKo. XLVIJ^VThe Particular Structure of the New jOyERNllIENT AND THE DISTRIBUTION OF PoWER AMONG ITSNDiFFERENT PaRTS 299 The maxim that there should be separate and distinct departments considered — This maxim true — The new Constitution does not violate y. — The views of Montesquieu — The provisions of the various State Yj constitutions on this point examined. No. XL"\^3-i^\^HESE Departments should not be so Far SeparaVeo? as to Have No Constitutional Con- TivDL OVER Each Other 308 Powers of one department, it is conceded, should not be exercised by another — One department should not have an overruling influence over another — Security against the invasion of one department by another considered — Insufficiency of new constitutional restrictions — The tendency of the legislature to absorb the other departments — Reasons for this — An instance of executive encroachment explained. No. XLIX. — Method of Guarding against the En- croachments OF Any One Department of Gov- ernment BY Appealing to the People through a Convention . 313 Propriety of a well-defined mode of appealing to the people — A sufficient remedy — Very dangerous and useless if too frequently ap- plied — Reasons for this— When such appeals are useful^Remarks on occasional appeals to the people. No. L. — Periodical Appeals to the People Considered, 318 The merits and disadvantages of short and long intervals — Ex- ample of Pennsylvania. XIV THE FEDERALIST. (.\ The Structure of the Government must H THE Proper Checks and Balances be- tween the Different Departments . . . 322 Modes of obtaining these mutual checks and balances — Advantages of the federal government in securing the rights of the people — Division of the delegated powers — Different interests among the people. No. LII. — The House of Representatives . . . 327 Electors — The qualifications of the members — The term of office — Biennial elections — Value of frequent elections — Terms of service in other rovernments — In England, Ireland, and in the American^, colonies — Biennial elections not dangerous — Reasons for this drawn from the nature and position of Congress. No. LIII. — The Same Subject Continued . . . 333 Objection that when annual elections end tyranny begins answered — Biennial elections necessary and useful — Objections to unduly short terms — Biennial elections useful and safe. , •>■ No. LIV. — The Apportionment of Members among the States . - ^^<^ Numbers the proper standard for representation^Slave representa- tion — Objection that slaves do not enter into local representation considered — The right of representation of property as well as per- sons — Votes in Congress should be proportioned to the wealth of the States — No inducement for falsifying the census, as it is the basis of taxation as well as representation. No. LV. — The Total Number of the House of Repre- sentatives 3415 Importance attached to this subject — Difficulty of determining the proper number— Small States require smaller ratios — Limited powers of Congress do not demand a numerous representation — Various ob- jections considered and answered— Sources of danger considered. No. LVI. — The Same Subject Continued . . . 350 Objection that Congress will be too small to know the interests and wishes of its constituents considered — The representative ought to know the interests of his constituents— Objects of federal legislation —A few representatives will ba sufficient— Taxation— Militia — The experience of Great Britain. CONTENTS. PAGE No. LVII. — The Alleged Tendency of the New Plan TO Elevate the Few at the Expense of the Many Considered in Connection with Represen- • provision harmless and offers no security — This provision compared with those of State constitutions — The probability that the pov/er of Congress to fix a uniform day for elections will be very important — -The want of any provision in the Constitution fixing such a day considered — Con- finding remarks on the general subject. . (No.^£m'I.— The Senate 384 J^^f^ Qualifications of senators — Appointment of senators by State legislatures — Equality of representation in Senate — Mixed character qi federal government requires a. mixed representation — Equal rep- resentation in Senate a recognition of sovereignty in the States — / The number of senators and the term for which they are elected — I Need of such an upper house as a security against improper legisla- tion, against the infirmity of faction, against ignorant legislation, against mutability in its councils from frequent changes of members -Dangers of such mutability enumerated. LXIII. — The Senate Continued .... 391 fevents a want of a due sense of national character, of a due responsibility, and of a defence against temporary errors and delusions i — jHistory shows no long-lived republic without a Senate — Difference ( between the ancient republics and the United States — Athens, Car- ' thage, Sparta, Rome, Crete — Objection that the Senate will acquire k. dangerous preeminence considered — Such a result impossible — Senate of Maryland — British Parliament — Sparta, Rome, Carthage — vThe controlling influence of the House of Representatives. IV. — The Powers of the Senate . . . 400 / The treaty-making power — Importance of this power — Property vested in the Senate — A popular body not fit for this power — Reasons — Objections to this power in the Senate considered, and reasons for their rejection enumerated — The responsibility of senators. Njo.'^irXV.— The Powers of the Senate Continued . 407 The appointment of public officers — The authority to sit as a court in the trial of impeachments — Difficulty of forming such a court — The Senate most fit for such a trust — The plan of delegating this authority to the Supreme Court considered and rejected — The propriety of unit- ing the Supreme Court in this power with the Senate considered and denied — The propriety of giving this authority to other persons dis- connected with any department of the government considered and denied — Even if this power in the Senate is not desirable the Constitu- tion should not be rejected. CONTENTS. xvil t7 No. LX'^^^^PbTections to the Power of the Sen- ■rsfE to Sit as a Court for Impeachments Fur- ther Considered 412 Objection that it unites legislative and judicial functions — This same provision in constitution of New York which opposition admire — That it unduly accumulates power in the Senate, and tends to the establishment of an aristocracy — That the Senate will judge too leniently officers for whose confirmation it has voted — That the sena- tors may be called upon to try themselves for a corrupt use of the treaty-making power. r>v;... .^ . ^ ^-^. /.Np,o£;XVIL3-THE Executive Department . . .K 419 .^^x' Misrepresentations on this point considered and answered. \»^|4^L1CVIII. — The Mode of Electing the President . 423 The only part of the Constitution not condemned by its opponents — It is well guarded — Desirable to have the sense of the people in the choice — Desirable that the choice should be made by competent persons, as in the Electoral College ; to avoid tumult and disorder ; to avoid intrigue and corruption ; to maintain the President in- dependent of all but the people — All these advantages here com- bined — Choice will seldom fall on one not qualified — The choice of a Vice-President by the people considered and approved. \^ No. iXIX. — The Real Character of the Executive . 428 A single person — Compared with the king of Great Britain and the governor of New York — Elected for four years, and is reeligible — Further comparison with the same executives — Liable to impeach- ment, removal from oflSce, and punishment by civil law — Compared again as above, and also with governors of Maryland and Delaware — Veto power — Compared again as above, and also with governor of Massachusetts — Commander-in-chief of militia in federal service — Compared again as above — Commander-in-chief of the army and navy of the United States — Compared again as above, and also with governors of New Hampshire and Massachusetts — Pardoning power — Compared as above — Treaty-making power — Compared as above — GenprSl review and comparison of executive powers. ' mJT LXX. — The Executive Department Further Con-a/*'**'^ WL SIDERED 4'j6 V) I I • ... ,' • • ' A vigorous Executive consistent with republican government — What constitutes a proper Executive — Unity — Reasons for this — Vesting executive authority in two or more magistrates — Restraining the Executive by a council — Objections to plurality and control by coun- cil enumerated. ^-."-1" THE FEDERALIST. ^~^ No"! LXXI. — The Duration in Office of the Executive, 445 if It affects his firmness in action — More interest in what is permanent — The Executive should not be subservient to popular impulses or to those of the legislature — Independence of departments of govern- ment necessarj' — Shortness of term will lessen independence — The '■ ^proposed term of four years considered. n« No. LXXII. — The Same Subject Continued, and Reeli- GiBiLiTY OF the Executive Considered . . . 450 Duration in office affects stability of administration — Heads of de- partment dependent on Executive and will change with him — Reei? gibility of Executive — The opposition to it considered — A limit ot" a single term would diminish inducements to good behavior, increase temptations to misconduct, prevent experience in the office, deprive the country in emergencies of the services of the best men, and act as a constitutional barrier to stability of administration — The supposed advantages of a single term considered — The people should not be / prevented from choosing men of experience. (B^/i Nd. LXXIII. — The Provision for the Support of the l''^ "' Executive, and the Veto Power .... 456 Without suitable provision the Executive will be at the mercy of the legislature, and the independence of the Executive should not be im- paired — The veto power — Reasons for and against enumerated and considered — The veto power not absolute — It already exists in New York and Massachusetts. "^ '^No. LXXIV. — The Command of the Military and LA Naval Forces, and the Pardoning Power of • the Executive' ....... 462 "^C No. LXXV. — The Treaty-Making Power of the Execu- tive 465 H One of the best features of the Constitution — Objection that it combines the executive and legislative departments considered — It is a proper combination — Reasons for this— House of Representatives can- not properly be admitted— Objection to requiring only two thirds of senators present. b. LXXVI. — The Appointing Power of the Executive, 471 This an excellent feature — This power cannot be exercised by the people at large — It will cause a livelier sense of duty in the Executive —Objection to its being intrusted to the President alone— He may be overruled by Senate — Concurrence of Senate a check on favoritism — CONTENTS. XIX I'AGK Objection that the President may thus control Senate considered — Whole body of Senate cannot be corrupted — Protection of Con- stitution. >) y Y No. LXXVII. — The Appointing Power Continued and y Other Powers of the Executive Considered . 476 ' The concurrence of the Senate necessary to displace as well as to ap- point — Objections as to undue control of the Senate by the President, or the reverse, considered — Compared with system of appointment in New York — Appointing power should be delegated to a council or shared in by the House — Power to communicate information to Con- gress ; to recommend measures to Congress ; to convene one or both branches of Congress ; to adjourn Congress ; to receive ambassadors and other public ministers ; to execute the laws of the Union ; to commission all officers of the United States — Concluding remarks on the Executive. -ziri^ No. LXXVIII. — The Judiciary Department . Mode of appointment — Tenure — Need of complete independence- Authority pronounced on the constitutionality of the laws — The legis- lature should be the judge of its own powers — Interpretation of the laws the peculiar province of the judiciary — Need of independence on this account — Independence required for judiciary as guardians of the Constitution and of private rights as well — Wisdom of requiring good behavior as the tenure. No. LXXIX. — -The Judiciary Continued . . . 491 A fixed provision for the support of the judiciary necessary to their independence — Responsibility of the judiciary — Judges liable to im- peachment — Cannot be made removable for inability — Reasons for this — Comparison with constitution of New York. No. LXXX. — The Powers of the Judiciary .* . . 494 To what cases the judicial authority ought to extend — To all cases which arise from duly enacted laws of the Union ; which concern the execution of the provisions of the Constitution ; in which the United States is a party ; which involve the peace of the Union in foreign relations, or when two States, or a State and the citizens of another State, or the citizens of difterent States, are parties ; Avhich originate on the high seas or are of admiralty jurisdiction ; in which State tri- bunals cannot be supposed to be implicated — To what cases authority of judiciary will extend under proposed Constitution — Statement of constitutional provisions — These provisions confonn to what the pow- ers of the judiciary ought to be — Propriety of delegating equity jurisdiction. THE FEDERALIST. PAGE No. LXXXI. — The Judiciary Continued, and the Dis- tribution OF THE Judicial Authority . . 501 Propriety of establishing one court of final and supreme jurisdiction — Propriety of delegating judicial authority to a distinct department — Objections to this considered — This delegation of authority secures more completely the separation of the judiciar)' from the legislature, recognizes more fully the principle of good behavior as a. tenure, secures greater legal ability, and removes the judiciary from party strife. — The example of certain of the States — That no legislature can rectify judicial mistakes except as to future action, and the danger of eni,roachments by the judiciary on the legislature, considered — Pro- priety of constituting inferior courts — Relief to Supreme Court — State courts not fit for this — Advantage of dividing United States into judi- cial districts— Manner in vphich authority should be distributed — Original jurisdiction of Supreme Court — Original jurisdiction of in- ferior courts — Appellate jurisdiction of Supreme Court. No. LXXXII. — The Judiciary Continued . . -512 The jurisdiction of the State courts on federal questions — The State courts will retain all that is not exclusively delegated — Decision of causes arising from a particular regulation may be delegated by Con- gress exclusively to Supreme Court — Relation between State and fed- eral courts when they have concurrent jurisdiction — An appeal will lie from State courts to the Supreme Court — The appellate jurisdiction of the inferior federal courts. No. LXXXIII. — The Judiciary Continued in Relation TO Trial by Jury ci6 Objection that there is no provision in the proposed Constitution for trial by jury in civil cases considered — True meaning of maxims on which this objection rests — Importance of right of trial by jury consid- ered—Criminal and civil cases — Jury system in different States — Diffi- culty of establishing a general rule — Impropriety of such a general rule in certain cases — The proposition of Massachusetts — The provisions of the New York constitution — The proposition that the jury system should be established in all cases whatever — Concluding remarks. No. LXXXIV. — Certain General and Miscellaneous Objections to the Constitution Considered and Answered .... . 533 Bill of rights — Liberty of the press — Seat of government too re- mote — No provision for debts due to the United States — Additional expenses of new system— Concluding remarks. CONTENTS. xxi PAGE No. LXXXV. — Concluding Remarks .... 544 Manner in which subject has been discussed — An appeal to the reader to weigh the matter carefully and act conscientiously — Confi- dence of Publius in the arguments which he has advanced — The con- ceded imperfections no reason for delay — Extent of them exaggerated — The Constitution not radically defective — Rights and interests of the people safe under Constitution — Not perfect, but a good plan — The state of the country forbids delay in vainly seeking a perfect plan — Difficulty of having another convention — Easier to cure defects by amendments after the adoption — No plan can be satisfactory to all the States — Supposed obstacles in the way of making subsequent amendments considered — The ease with which a federal convention may be called to make amendments — Conclusion. Appendix : The Articles of Confederation .... 555 The Constitution of the United States and the Amendments Thereto 561 Index . 577 'C^^^^^K^')^^^^^ ^'^^ ^^^^ ^^ Wt^^m^^^x^yM'^^Ml^ l^^^pf ^^l^f^ ^M ^^^^^^^^ ^^ ^^^ ® INTRODUCTION. THE AUTHORSHIP OF THE "FEDERALIST. The authorship of certain numbers of the " Federalist " has fairly reached the dignity of a well-established historical controversy, and has become almost as hopeless of settle- ment as the identity of Junius or the guilt of Mary, Queen of Scots. In character it closely resembles the former ques- tion, except that the mystery of Junius is due to his secrecy, while with the "Federalist" more authors have confessed themselves than can be provided for in the essays. The discussion about the " Federalist " began nearly sev- enty years ago, has continued at intervals down to the pres- ent day, and culminated some twenty years since in two most elaborate essays, one by Mr. Henry B. Dawson, the other by Mr. John C. Hamilton, which were prefixed to the editions of the " Federalist," published by those two gentle- men respectively. It is of course idle to suppose that any thing can now be written which will convince or satisfy everybody as the true answer to this long-mooted question. Yet it is possible, perhaps, not only to present the evi- dence, including a little that is new, in a compact form, but also to state the case and set forth the arguments in brief and simple fashion, so that the merits of the question may be readily understood and easily appreciated. The first step is to employ the process of elimination which will free us from much extraneous matter and from the repetition of many long and bewildering lists of num- bers. We can throw out first all those essays of which the authorship has never been questioned. We can then do XXIV THE FEDERALIST. the same with certain others as to which the authorities are at variance, but from which a little examination removes all doubt. This done, there will be left a small number of essays, which are the subject of irreconcilable claims, and on which this controversy really turns. The total number of essays, according to modern numbering, and as agreed to by both Hamilton and Madison, is eighty-five. Of these, the following have never had their authorship disputed by any one, and are to be thus assigned : To Hamilton: i, 6, 7, 8, 9, 11, 12, 13, 15, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 59, 60, 61, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, — in all, 49. To Madison: 10, 14, 37, 38, 39, 40,41, 42, 43, 44, 45, 4^, 47, 48, — in all, 14. To Jay: 2, 3, 4, 5,— in all, 4. This disposes of 67 numbers, and leaves 18 to be still ac- counted for— 2, e.: 17, 18, 19, 20, 21, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, 63, 64. We now come to the second class of essays, where the authorship, after examination, can be fixed with entire certainty. Number 17 is claimed for Madison in one of his own lists (there are four from his hand), and in one of the two Jefferson lists. Hamilton claims it in all his own lists, and Madison concedes it to Hamilton in three of his. When Madison in any one of his four lists agrees with Hamilton as to the authorship of any essay, it must be considered as settled. Number 17 therefore belongs to Hamilton. All the Hamilton hsts assign numbers 18, 19, and 20 to Hamilton and Madison jointly. Two of the Madison lists give the authorship of these three papers exclusively to Madison. One Madison list and one Jeffer- son list give 18 and 19 exclusively to Madison, and 20 wholly to Hamilton. In his fourth and last list Madison appends to No. 18 the following note: "The subject of this and the two following numbers happened to be taken up by both Mr. H. and Mr. M. What had been prepared INTROD UCTION. by Mr. H., who had entered more briefly into the subject, was left with Mr. M., on its appearing that the latter was engaged in it, with larger materials, and with a view to a more precise delineation, and from the pen of the latter the several papers went to press." This note confirms Hamil- ton's statement that these three papers were the work of himself and Madison, and to them jointly Nos. i8, 19, and 20 may therefore be credited without any reserve. One Jefferson list and one Madison list give No. 21 to Madison. Three Madison lists and all the Hamilton lists give it to Hamilton. No. 21, therefore, can be set down unhesitat- ingly to Hamilton. No. 64 is claimed by Madison for him- self in one of his lists ; but in his three other lists, and in one of the Jefferson lists, it is given to Jay. In five of the Hamilton lists 64 is claimed for Hamilton, and 54 is given to Jay. Chancellor Kent's Hamilton list gives 64 to Jay, while the edition of 18 10 credits both 64 and 54 to Hamil- ton. Jay claimed for himself Nos. 2, 3, 4, 5, and 64, and the MS. of 64 has been found among his papers and in his own handwriting. There is therefore no longer any doubt what- ever as to 64, which can be given with absolute certainty to Jay.* The eighteen numbers left over from the first sifting are now reduced to twelve. Two of the six thus disposed of go to Hamilton, one goes to Jay, and the other three (18, 19, and 20) to Hamilton and Madison jointly. This makes Hamilton's total 51 ; Jay's, 5 ; Madison's, as before, 14; and Madison's and Hamilton's jointly, 3. The twelve remain- ing numbers (49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, and 63) are those over which the whole controversy as to the author- ship of the " Federalist " really arises. It now becomes necessary to notice briefly the various authorities in regard to the disputed authorship. The day before his fatal duel Hamilton called at the office of his friend * Hamilton's error as to No. 64 would seem to have been of long standing, for in a note to the last number of Camillus (1796) he certainly suggests that he was himself the author of that essay. See Lodge's Hamilton, vol. v., p. 320. THE FEDERALIST. Egbert Benson, and left there a slip of paper in his own handwriting, which read as follows : " Nos. 2, 3, 4, 5, 54, by J. " Nos. lo, 14, 37 to 48 inclusive, I^. " Nos. 18, 19, 20, M. & H. jointly. "All the others by H." Mr. Egbert Benson was absent when Hamilton called, but Mr. Robert Benson, his nephew, was present, saw the paper deposited by Hamilton in a volume of Pliny, and afterwards examined it himself. Judge Benson on his re- turn pasted the slip thus left by Hamilton on the fly-leaf of his own copy of the " Federalist." Thence he removed it, after making a copy, and presented it for safe-keeping to the New York Public Library, where the paper remained for some years. It was still there in 1818 when, in the controversy which then sprang up, William Coleman, the editor of the New York Evening Post, referred to it, and informed the public that they could call and examine it. At some subsequent time this valuable document was stolen, and it has never been recovered. In 1 802-1803 John C. Hamilton, at the request and dictation of his father, sent a list to Philip Church, a nephew of General Hamilton, which agrees precisely with the Benson list. In 1807 the execu- tors of Hamilton's will deposited in the New York Public Library Hamilton's copy of the " Federahst," in which the authorship of the various numbers was said to be designated in his own handwriting. Attention was called to this fact by a letter in the Portfolio, attributed to Chancellor Kent, who there gave from the copy thus deposited a list of the authors, corresponding exactly with the Benson list. In 1810 an edition of Hamilton's works was published in New York. The second and third volumes contain the " Federal- ist," and the author of each paper is designated, as we are informed in the preface, '■ from a private memorandum in his own (Hamilton's) handwriting." The designation of authors in this edition is the same as the Benson list, with one striking exception : No. 54 is given to Hamilton, and INTRODUCTION. xxvii Jay is left with only four numbers. This difference would indicate either that the Portfolio list was wrongly given, or that the editor of the 1810 edition had. some list of which nothing is now known. In a copy of the " Federalist " belonging to Fisher Ames, one of Hamilton's intimate friends, the authors of the papers are designated in accordance with the Benson list. I have in my possession a copy of the " Federalist " of the edition of 1802, which belonged to my great-grandfather George Cabot; who, like Ames, was a very close personal friend of Hamilton. To the preface Mr. Cabot appended this note : " Those by Mr. Jay and Mr. Madison are now marked in this edition, those without a mark are from the pen of Hamilton." The marking corresponds with that of the edition of 18 10, from which it may have been taken, and gives No. 54 to Hamilton as well as No. 64. In the second volume, however, Mr. Cabot has wafered in a slip of paper giving a list of the authors which corresponds exactly with the Benson list. Then there is a list made and preserved by Chancellor Kent, which he says was revised by Hamilton, and which differs from the Benson list by giving 64 instead of 54 to Jay and 49 and S3 to Madison in addition to the fourteen assigned to him in the other Hamilton lists. Finally, there is the Washington list, which, so far as I am aware, has never been published before, and for which I am indebted to the kindness of John R. Baker, Esq., of Philadelphia. At the sale of Washington's library Mr. Baker purchased the General's copy of the "Federalist," of the first edition of 1788. On the fly-leaf of the first volume occurs the following memorandum in Washington's well- known handwriting : " Mr. Jay was author of Nos. i, 2, 3, 4, 5, and 54. " Mr. Madison of Nos. 10, 14, and 37 to 48, exclusive of the last. " Nos. 18, 19, 20 were the production of Jay, Madison, and Hamilton. THE FEDERALIST. " All the rest of Gen. Hamilton." Washington died in 1799. He speaks of Hamilton, it will be observed, as " General," and that fixes within a year the time when his list was written. It must have been made up after July, 1798, and before December, 1799, and is therefore much the earliest list we have. It contains some curious variations from all the other lists, and these differences would seem to indicate that Washington made it up from recollection of informa- tion derived several years before from the authors. The striking and important fact is that this, the earliest list, drawn up by a singularly accurate man years before there was any thought of controversy, agrees in the main with the Benson list, and assigns the twelve disputed numbers unhesitatingly to Hamilton. We now come to the Madison lists. The first appeared in the National LitelHgencer, April 18, 18 1 7, in a letter signed " Corrector," and was stated to be from " indubitable authority — a pencilled memorandum in the handwriting of Madison himself." The second was given by Madison to Richard Rush at about the same time apparently as that cf "Corrector." The third was pubHshed in the City of Washington Gazette, December 15, 1817, and was stated "to be furnished by Madison himself." The fourth appeared in Gideon's edition of the "Federalist," published at Washing- ton in 18 18, and was taken from Madison's notes in his own copy of the work.* These lists all agree in giving the twelve disputed numbers to Madison, but they differ among them- selves as to other numbers in a very marked degree. There are two Jefferson lists. One was in his copy of the " Federahst," and corresponds with the most erroneous Madison list, that furnished to the Washington Gazette, while the other was given to his friend Gideon Granger, and is identical with the Benson list.f * This copy is now in ihe possession of ihe government in the library of Congress. f The Granger list is now in tlie possession of the Hon. Robert C. Winthrop, of Boston. INTRODUCTION. xxix The only information derived from Mr. Jay was that he was the author of Nos. 2, 3, 4, 5, and 64. Thus we find that the two principal authors of the " Fed- eralist " are at variance as to the authorship of twelve important numbers. Having stated what the authorities are, it merely remains to examine them. Suggestions have not been wanting that the principal Hamilton list, that of Benson, never existed. It is difficult to see how any one could seriously entertain such an idea, but in this inquiry I do not propose to pass over any theory which has even been hinted at. In his introduction to the "Federalist," which is marked by the most extraordinary care, and is thorough to the last degree in details, Mr. Dawson says that he had an interview with Mr. Robert Benson, who was present in the office when Hamilton came in and left the memorandum, and from this eye-witness Mr. Dawson received the whole story. Mr. Benson said that he saw Hamilton and saw the list which was in Hamilton's handwriting ; that his uncle made a copy of it, which still exists, and that his uncle then deposited the original in the New York Public Library. There, as has been said, the list remained for many years. There it could have been and no doubt was seen by any one who chose to look at it, and in 18 18 public attention was called to it and everybody was invited to examine it. During all those years its existence and its authenticity were never questioned for a moment, even in the somewhat sharp con- troversy which then arose. To suppose that it did not exist, is to assume that Egbert Benson and his nephew were either liars or forgers, or both, and the mere statement that such an assumption is necessary, is sufficient to destroy at once any theory that the Benson list never existed in Ham- ilton's handwriting. All the Hamilton lists agree except as to No. 54, which the edition of 1810 gives to Hamilton. Chancellor Kent's list gives 64 to Jay, which is correct, and 49 and 53 to Madison. As to the two last the difference is peculiar, but XXX THE FEDERALIST. the Chancellor corrected his list in later years, and owing to the confusion between the original and the modern number- ing, the changes as to 49 and 53 seem to lose significance, especially as they are two of the first ten of the disputed numbers, and these ten all coming consecutively, must on any reasonable theory be assigned to one or the other of the authors in a block. The next step is to find out the errors of the different authorities as to the undoubted numbers, in order to properly test their value as to those in dispute. The one unquestioned error made by Hamilton was as to number 54. He gave Jay his correct total of five numbers but assigned him 54 instead of 64. We are now trying the value of these lists simply as documents by the ordinary rules of historical evidence, and this error may be justly said to impair their authority. This being admitted, let us apply the same rules to the Madison lists. In Gideon's edition of 1818 Madison concedes 18, 19, and 20 to be the joint work of Hamilton and himself, and gives 17 and 21 to Hamilton and 64 to Jay. In his first list, that of the National Intelligencer, he claims 18, 19, and 20 as exclusively his own work, and also 64, which belonged to Jay. In the Rush list Madison again claimed 18, 19, and 20 for himself alone. In the Washington Gazette list he takes 17, 18, 19, and 21 to himself, two of them being joint and two belonging to Hamilton, and gives 20, which was the third joint number, wholly to Hamilton. The authority of the lists other than that of the edition of 1818 cannot be questioned, for Madison says in a letter to Gideon, dated August 20, 1818 (Writings, III., no): "It may, however, be proper, perhaps, to observe that it [his copy lent to Gideon] is not the only one containing the names of the writers correctly prefixed to their respective papers. I had, a considerable time ago, at the request of particular friends, given the same advantage to their copies." In the Hamilton lists, then, we find two errors as to two numbers, while in the Madison lists there are twelve errors as to six numbers. Tried, therefore, by the list of admitted INTRODUCTION. xxxi errors, Hamilton's authority is shown to be six times as good as that of Madison. But this is not all. In 1807 the Benson list, or one just like it, was published, and in 18 10 came the edition of Hamilton's works, which gave four numbers to Jay, fourteen to Madison, and all the rest to Hamilton. Yet it was not until 1817 that the authority of these assignments was publicly disputed for the first time. Over ten years elapsed after the publication in the Portfolio before Madison contradicted Hamilton's list, which is a very serious matter if we again apply the rules of evidence. The excuse that it would not have been becoming in the Presi- dent to have entered upon a literary controversy will not do, for the publication in the Portfolio preceded Madison's ele- vation to the presidency by nearly eighteen months, and there was certainly no reason why a Secretary of State should not defend his copyright. There is still another point which tells against Madison. In a letter to J. K. Paulding, written in 183 1,* as well as in an unpublished memorandum f quoted by J. C. Hamilton in the introduc- tion to his edition of the " Federalist," Madison argues from internal evidence that he was the author of certain of the disputed papers. This would not have been done probably by a man who had no doubt in his own mind as to the essays, and it certainly would not be the course of any one who had contemporary memoranda to guide and assure him. Madison's argument from internal evidence makes it clear that he compiled his list from memory. There is no direct evidence that Hamilton did the same, except from his error in regard to Jay's number on the treaty power. The probabilities, however, are strong that he also wrote his lists from memory, and all the lists, therefore, stand on the same footing in this respect. * Writings of Madison, IV., 176. f A careful search for this memorandum, which Mr. J. C, Hamilton alleges, in his edition of the " Federalist" (p. C), to have been in the State Department, has failed to reveal it. This is entirely unimportant, however, as the memoran- dum merely differs verbally from the argument in the letter to Paulding, which is of unquestioned authenticity. xxxii THE FEDERALIST. The arguments from internal evidence on both sides, whether by Madison or others, seem to be for the most part worthless. One, for example, is that No. 49 speaks in terms of praise of Jefferson, and therefore could only have pro- ceeded from Madison. But the essays were written in 1788, and in 1788 Hamilton knew Jefferson simply as a revolutionary leader, who was respected by all men, and had never had any political quarrel with him. Moreover, the essay, after quoting Jefferson and praising him, goes on to refute his doctrine as to the point in question. It is also said that 49 continues 48, and must therefore be by the same hand. But this argument fails if we examine the un- doubted numbers. No. 9, for instance, is on " the utility of the Union as a safeguard against domestic faction and in- surrection," while No. 10 is "the same subject continued," and No. 9 is by Hamilton and No. 10 by Madison. As to the historical examples cited in the essays, Madison and Hamilton used the same illustrations and drew from the same sources, as may be seen from the notes and briefs of their speeches. The differences in style are never sufficiently marked to lead to any safe conclusions. This much, as has already been said, may be asserted with confidence : that Hamilton and Madison both relied upon their memories. We have therefore certain conflicting lists of the highest authority, and if we go merely upon the documentary evidence tried by the ordinary rul^s of historic evidence, the balance inclines very strongly in favor of Hamilton. The proportion of admitted errors, the ten years without contradiction, and Madison's arguments from in- ternal evidence all tend to show in the strongest way that Hamilton's memory was decidedly the more accurate. But if we go beyond the direct documentary evidence, the case is not quite so clear. The best Hamilton list, that given to Benson, was written in haste and at a most agitating mo- ment. It contains one acknowledged slip of the pen which gives 54 instead of 64 to Jay. As an ingenious writer in the Historical Magazine (vol. 8, 306) suggests, " 37 to 48 in- INTRODUCTION. xxxiil elusive by M." may have been another sHp for " 37 to 58 inclusive, by M." The essays from 49 to 58 inclusive, all deal with the same general subject of the popular element in the Constitution, including representation in the lower House, and on their face they certainly seem to be from the same pen. Madison, in the letter to Paulding just quoted, says that Hamilton's errors were due, of course, to haste and a lapse of memory, but if he himself was accused of errors they could only be attributed to a want of veracity. This is true to the extent that Madison gave time and thought to his assignment and contradicted Hamilton de- liberately. Yet he, too, wrote from memory, and in four lists he made twelve errors, which were certainly owing to forgetfulness and not to untruthfulness. The theory of the writer in the Historical Magazine pro- vides very comfortably for the ten numbers from 49 to 58 inclusive, but it breaks down utterly as to 62 and 63, the re- maining two of the twelve in dispute. As to these two I have very little doubt. I think they both belong to Ham- ilton. They follow three undoubted Hamilton numbers, and they treat of the Senate, a subject on which Hamilton made a most elaborate speech in the New York convention, and the general line of thought and argument is the same in both cases. It was, too, a topic to which Hamilton had given particular attention, and this may have been the reason that he fell into an error as to number 64, which is concerned with the treaty-making power of the Senate. As to every doubtful number outside of the ten from 49-58, Madison was in error, and this seems to me to be fatally against him as to 62 and 63. In regard to the disputed ten, I have been able to come to no confident conclusion. Before I knew of the Washington list, and before I had discovered a curious addition to No. 56 in the edition of 1802, I felt that the probabilities were in favor of Madison, and I was inclined to assign those num- bers to him, although not so confidently as in giving ,62 and 63 to Hamilton. XXXIV THE FEDERALIST. The Washington Hst, both from its date and the character of its author, seems to me to tell very strongly against Madison. The other point to which I have just alluded in regard to number 56, has never been noticed before, so far as I am aware. When the edition of 1802 was in prepara- tion, Hamilton was asked to revise it, but declared, in the strongest terms, that the " Federalist " must be printed as it was written, and he also insisted that full credit should be given to Mr. Jay and Mr. Madison in the preface for the excellence of their work. The edition was revised, unquestion- ably, I think, as Mr. Dawson has shown, by William Cole- man, the editor of the New York Evening Post. Many changes were made, but, with one exception, they were utterly unimportant, effected no improvement, and were nearly all purely verbal. In number 56, however, in treat- ing of the regulation of the militia, a sentence is inserted, as may be seen by referring to that number in this edition, which relates to the need of local knowledge in dealing with such troops. This sentence is a bit of military criticism, and could hardly have been written by any but a military man, for it would not have occurred to a civilian. It is very unlikely indeed that it would have occurred to Coleman, and he certainly would not have inserted it without Hamilton's approbation. On the other hand, there is little doubt that the proof-sheets of this edition were seen by Hamilton, and the sentence in question is very characteristic of Hamilton and of his mode of thought. He was rigidly scrupulous as to changes in the " Federalist," and was extremely particu- lar as to the work of his fellow-writers. Hopkins, the pub- lisher of the edition of 1802, wrote to Mr. X. C. Hamilton that the most scrupulous delicacy was observed in regard to the essays of Madison and Jay, and that a portion of the work was reprinted because a single favorite word of Madi- son had been changed in one passage. It is therefore in the highest degree improbable that Hamilton would have added such an important sentence himself, or permitted any one else to add it, to an essay which he did not know to be INTRODUCTION. XXXV his own. The insertion of this sentence, therefore, points very strongly to the conclusion that Han:iilton, in i8o2, con- sidered number 56 his own, not in a moment of agitation and hurry, but when coolly examining proof-sheets. If this was his opinion at that time and under such circumstances as to number 56, it is difficult to believe either that he was mistaken as to that number or as to the other twelve in dispute. At the same time, the Washington list and the sentence in number 56 are not, of course, conclusive, and while these two bits of evidence have almost removed my inclination to believe in Madison's authorship of the disputed numbers, I am not even yet completely satisfied that they are not his work. The outcome of it all is that the evidence in regard to the twelve disputed numbers is so conflicting that, although the balance is strongly i« Hamilton's favor, the best which can be done is to present the plain facts and all the argu- ments as simply and clearly as possible, and then leave every one to draw his conclusions to suit himself. No one is entitled to assign the disputed numbers to either Hamilton or Madison with absolute confidence. They were surely written by one or the other, and with that unsatis- factory certainty we must fain be content. II. BIBLIOGRAPHY OF THE " FEDERALIST." Protracted and minute search, supplemented by widespread advertisements, and by the obliging aid of many kind corre- spondents, has enabled me to add only two editions to the list of editions of the " Federalist " already given by Mr. Dawson. In a few instances where Mr. Dawson was able to speak of an edition only from hearsay, I have succeeded in finding a copy and in obtaining a full description of it. This, however, is all, and the bibliography of the " Federal- ist " which follows is in the main that of Mr. Dawson's edition of 1863, to which the reader may be referred for xxxvi THE FEDERALIST. much minute bibliographical information which it did not seem necessary to reproduce here. I. — The first edition was that of 1788, published by J. and A. McLean, of New York. The first volume appeared March 22, 1788, and the second followed on May 28th. When the second volume appeared the essays were still running in the newspapers, and numbers 78 to 85 inclusive were therefore first given to the world in this edition. The title-page is as follows : " The Federalist :/ A Collection /of/ Essays, / written in favour of the/ new Constitution, / as agreed upon by the federal convention/September 17, 1787./ In two volumes/ Vol. I or Vol. II / New York : / Printed and sold by J. and A. McLean, / No. 41, Hanover-Square. / M.DCC.LXXX- VIII." This first edition is now very rare,*and copies, especially if they are in good condition, command a high price. II. The second edition was a French translation, pub- lished in 1792, with the following titles : " Le Federaiiste, / ou / Collection de qiielques Ecrits en faveur dc / la Constitution proposde aitx Etats-Unis / de I'AmMqiie, par la Convention convoqude / en 1787 ; Publics dans les Etats-Unis de I'Am^rique par/ MM. HAMILTON, Madisson e Gay, / Citoyens de I'Etat de New York./ Tome Premier, (or Tome Second.)/yi Paris/Chez Buisson, Libraire, rue Hautefuille, / No. 20./1792." The trans- lator was M. Trudaine de la Sabli^re, who added a few explanatory notes, an introduction of about eighteen pages, and a translation of the Constitution. This edition was reissued by the same publisher in the same year. The second issue was identical with the first, except that the introduction was omitted, probably for pohtical reasons. Neither Brunet (Manuel du Libraire) nor Graesse (Tresor des Livres rares) mentions the " Federalist." Barbier (Diction- naire des Anonymes) mentions this edition of 1792, but not the second French edition of 1795. Both issues of this first French edition are of the utmost rarity. I have INTROV UCTION. heard of but one example of the first issue, the imperfect copy in the library of Harvard College, referred to by Mr. Dawson. The second issue is almost equally rare. There is one copy in the New York State Library (mentioned by Mr. Dawson), another in the library of Yale College, and a third was sold at auction not long since, in Boston, for twenty-five dollars a volume. I am indebted to Mr. Addi- son Van Name of Yale College for proof of the identity of these two issues of 1792, which Mr. Dawson correctly con- jectured to be the case. I am also indebted to Mr. Henry A. Homes, State Librarian of New York, in addition to many other kind suggestions, for much exact information as to the French editions. HL A second French edition was published in 1795. It was identical with the second issue of 1792, omitting, like that, the introduction. There were three slight changes in the title-page : " Seconde Edition " is inserted before " Tome Premier," Jay's name is spelled correctly, and at the bot- tom, instead of the usual date, appears " An 3! de la R^- publique." This edition also is of the utmost rarity. IV. All that Mr. Dawson could say of the fourth edition of the " Federalist " was that " it is said that in the year 1799 a new edition of the Federalist was published in New York." Mr. Dawson, after the most exhaustive search, failed to find a copy, and only heard of one, or what appeared to be one, in the collection of Mr. Force, while his own volume was passing through the press, and he was therefore compelled to leave the existence of such an edition largely a matter of conjecture. This gap can now be filled. There is a copy of this edition, probably unique, for the Force copy seems to have disappeared,- in the possession of the Long Island Historical Society, and I am indebted to the kindness of Mr. George Hannah, the librarian of the Society, for my knowledge of its existence and for the following copy of its title-page : " The/ Federalist/ A Collection of/ Essays/ Written in favour of the / New Constitution / As agreed upon by THE FEDERALIST. the/ Federal Convention/ September 17, 1787 / In two volumes/ Vol. I / Vol. '11/ New York / Printed and sold by John Tiebout/No. 358 Pearl St./i799." It was simply a reprint of the edition of 1788. V.' The fifth edition of the " Federalist " was published, in two volumes, by George Hopkins, of New York, in 1802. In this edition many changes, nearly all verbal, were made in the text. As has been stated above (Authorship of the " Federalist," p. xxvi) the reviser of this edition was probably William Coleman, the editor of the New York Evening Post. It was represented at the time and afterwards that this edition had the benefit of Hamilton's supervision. The one certain fact is that Hamilton in the strongest terms for- bade any alterations. The result, due perhaps to this pro- hibition, was that the changes and omissions were, with one marked exception already alluded to, quite immaterial. It seems probable that Hamilton saw the proof-sheets, but whether he thoroughly approved the changes must remain a matter of conjecture. This edition of 1802 is not rare. VI. The sixth edition was published in 1810 by Williams and Whiting of New York, and formed the second and third volumes of the " Writings of Hamilton." It was edited by John Wells, a distinguished member of the New York bar, and one of Hamilton's personal friends. With but few and unimportant changes it followed the Hopkins edition of 1802, although the text was said to have had the benefit of the marginal notes made by Hamilton in his own copy. The principal and the only new feature of this edition was that the names of the respective authors were appended to each essay. This assignment of authorship corresponds with the Benson list, except that No. 54, as well as No. 64, is given to Hamilton. It is not a rare edition. VII. The seventh edition of the " Federalist " was a single octavo volume of some 477 pages, published by Benjamin Warner of Philadelphia and William Greer of Harrisburg, and is now not often met with. It was a simple reproduc- tion of the Williams and Whiting edition of 18 10. INTRODUCTION. xxxix VIII. The eighth edition, in one volume, was issued in l8i8 by Benjamin Warner of Philadelphia, the publisher of the seventh, with which it was identical, the only new feat- ure being an appendix containing the articles of Confedera- tion and the Constitution of the United States with the amendments. This edition is rare. IX. The ninth edition was a large octavo of 671 pages, and was pubHshed in 1818 by Jacob Gideon, in Washing- ton. It was claimed that this edition had the sanction and approval of Madison. It certainly had the benefit of the notes made by him on his own essays, and it contained his assignment of the authorship of the various numbers. The text is that of the Williams and Whiting edition of 1810, and the changes in Madison's essays are verbal and un- important. It contained, besides the " Federalist," prefatory remarks, and in the appendix, Hamilton's " Letters of Pacificus," Madison's "Letters of Helvidius," the articles of Confederation and the Constitution of the United States. Copies of this edition are not common. X. The tenth edition was published by Jacob Gideon at Washington in 1821. It is a reprint of his edition of 1818. XI. The eleventh edition was the first of a series of editions published at Hallowell, Maine, by Glazier & Co., and their successors, who purchased the Gideon copyright. Some of these editions are now very rare, while others are not infrequently to be met with. The first appeared in 1826. It is a single volume octavo, of 582 pages, and is identical with the Gideon editions of 181 8 and 182 1. XII. The twelfth edition has no existence that Mr. Daw- son could discover, except in the pages of the catalogue of the New York State Library. If it existed, it was a Hallo- well edition, and identical with that of the preceding year. Mr. Homes, the librarian, suggested to Mr. Dawson that the entry was a misprint for 1837, the date of an undoubted Hallowell edition which was in the New York Library. Mr. , Homes writes me that no edition of 1827 has since been found, and that the question stands as it did in 1863, when xl THE FEDERALIST. J . . Mr. Dawson discussed it. It seems improbable that any such edition of 1827 ever existed. XIII. The thirteenth was another Hallowell edition, identical with the Gideon edition and with that of 1826. Mr. Dawson mentions the existence of this edition, but had never seen or heard of a copy. Mr. Hannah informs me that there is a copy in the possession of the Long Island Historical Society, and I have heard of one other. It was published in 183 1 by Glazier, Masters, & Co., and is apparently as rare as one of the French editions. XIV. The fourteenth edition was published in a single volume, duodecimo, at Washington, in 1831. Except for a few trifling changes and the addition of an alphabetical index by Philip R. Fendall, a member of the Washington bar, this edition was an exact reprint of the Gideon edition, and was considered by the Hallowell publishers a violation of their copyright. XV. The fifteenth edition was published in one volume, at Hallowell, by Glazier, Masters, 8c Smith, in 1837. It was a reprint of the Gideon edition of 1818. XVI. The sixteenth edition was a Portuguese translation published by J. Villeneuve & Co. at Rio de Janeiro in 1840. No copy is known to exist in this country. The title-page, which is given by Sabin, is as follows: "O Federalista, publicado em inglez por Hamilton, Madisson e Jay cidadaos de Nova-York, e traduzido emportuguez por. . . . Rio de Janeiro : Typ. Imperial e Const, de J. Villeneuve & Co., 1840." I ani indebted for my knowledge of this and the tenth edition mentioned above, neither of which are given by Mr. Dawson, to Mr. Paul Leicester Ford, author of the excellent " Bibliotheca Hamiltoniana," which has just ap- peared in a volume uniform with Lodge's Hamilton. XVII. The seventeenth was another Hallowell edition, a reprint of the others from the same press, and appeared in 1842. XVIII. The eighteenth edition was pubhshed in one vol- ume by J. & G. S. Gideon, in Washington, in 1845. It was INTRODUCTION. xli a reprint of the edition of 1818, with the addition of the index of the Washington edition of 1831, with some im- provements. Mr. Dawson failed to discover a copy of this edition, but I am informed by Mr. P. L. Ford that there is a copy, from which he has taken the title-page in his " Bibhotheca Hamiltoniana " (p. 27), in the possession of his father, Mr. Gordon L. Ford, of Brooklyn. XIX. The nineteenth edition was published in one volume, in Philadelphia, by R. Wilson Desilver. It was a reprint of the Gideon edition of 1818, with the alphabetical index of 1831 and the addition of the act of Congress of January 23, 1845, relating to the election of President. It would seem to have been a reprint of the preceding edition of 1845. XX. — The twentieth was a Hallowell edition, published in 1852 by Masters, Smith, & Co., and was a reprint of their other editions, with the addition of an analytical index. XXI. — The twenty-first was also a Hallowell edition, pub- lished in 1857, and was an exact reprint of its predecessor of 1852. XXII.— The twenty-second edition of the " Federalist " was printed for the editor, Mr. Henry B. Dawson, at Morri- sania, New York, and published in 1863. This edition, which is the most valuable one hitherto published, was designed for two volumes, of which the first alone has appeared. The vol- ume published contains the " Federalist " with the original notes of the authors, a most learned introduction discussing the history, bibliography, text, and authorship of the essays, and a most admirable analytical table of contents, supple- mented by a comparative list, showing the authorship of the essays as claimed by the various original authorities. XXIII. — The twenty-third or " University " edition was published in one volume, at New York, by Charles Scrib- ner's Sons, in 1864. It was edited by Mr. Dawson, and was a reprint of the first volume of his larger edition, without the introduction. XXI '^'^The twenty-fourth edition was published in one xlii THE FEDERALIST. volume by J. B. Lippincott & Co., at Philadelphia, in 1864.' This edition was edited by Mr. J. C. Hamilton, and con- tains, besides the essays, a table of contents, an historical notice, which discusses at length the history, text, and auth- orship of the essays, the six numbers of the Contijientalist (1781), the resolution of New York (1782) for a general convention, a letter from Hamilton to Clinton, May 14, 1783, resolution for a general convention (1783), the address of the Annapolis convention (1786), Hamilton's speech on the Impost grant, resolution for an act of Congress for a general convention, February 17, 1787, resolution for the appointment of New York delegates, February 26, 1787, the articles of Confederation, Hamilton's first plan of gov- ernment, the federal Constitution as agreed upon by the convention, a table of collated texts, three essays by Philo- Publius (William Duer), and an alphabetical index. This concludes the list of editions of the " Federalist " so - far as I have been able to discover them. It is quite possible that there have been others published in this country or in Europe in addition to the twenty-four described, but if this is the case, the most careful inquiry and wide advertising have failed to discover them. III. THE TEXT OF THE " FEDERALIST." The essays of the " Federalist " were first printed in the newspapers, and were then republished without substantial textual change in the McLean edition of 1788. In 1802, the Hopkins edition, described above, appeared with many text- ual changes in the essays written by Hamilton, and in 18 18 the Gideon edition, with further changes in the Madison es- says. The new text of these two editions was adopted in all subsequent editions, until the appearance of the one pub- lished in 1863 by Mr. Dawson, who reverted to the original text. Mr. John C. Hamilton, in his edition a year later, adopted the Hopkins and Gideon text. Thus it happens INTRODUCTION. xliii that there are two texts of the " Federalist " which contend for the honor of being the best and most authentic version of these famous essays. I have had no hesitation in deciding as to the text to be adopted in this edition. Mr. Dawson's argument in favor of the original text is unanswerable, and can be readily sum- marized. The essays of the " Federalist " were written at a special time for a special purpose. They formed an elab- orate argument, intended to convince the people of the country of the value and usefulness of the proposed Consti- tution, and it is, therefore, historically essential that we should have them in the precise form in which they did their work. The " Federalist '' furthermore was the first authoritative interpretation of the Constitution, and was mainly written by the two principal authors of that instrument. It was the first exposition of the Constitution and the first step in the long process of development which has given life, meaning, and importance to the clauses agreed upon at Philadelphia. It has acquired all the weight and sanction of a judicial de- cision, and has been constantly used as an authority in the settlement of constitutional questions. The essays of Pub- lius are undoubtedly a great work upon the general subject of political federation, and if they were nothing else, text- ual changes and improvements would be at least defensible, if not wholly desirable. But changes cease to be permissi- ble when the writings in question are not only essays on the general subject of political federation and government under a written constitution, but are also arguments intended to serve a specific purpose at a particular time, which have assumed the weight and sanctity of judicial interpretation. The authority for the most extensive changes, moreover, is by no means clear. It is certain that Hamilton opposed any alterations, and indeed forbade them. It is conceded also that the changes in the edition of 1802 were not made by Hamilton, with the exception probably of the paragraph in No. 56, and the extent of his ap'proval of them is a matter of conjecture. The further slight changes in the edition of xliv THE FEDERALIST. 1818 have, it is true, the sanction of Madison, but what we desire now is not Madison's arguments in the phrases which he preferred in 18 18, but in the words which he actually used in 1787 and 1788. Finally, the changes were, as a rule; unimportant, often trivial, with two or three exceptions, entirely verbal, and, in my opinion, made no improvement. The text of this edition, therefore, is the original text of the newspapers and the McLean edition of 1788 as adopted by Mr. Dawson. I have added a few notes giving the text of the subsequent changes in every case where they seemed of the slightest im- portance, or where, by any possible construction, they could be considered to affect the meaning of the passage. In only one point is Mr. Dawson's edition as it seems to me open to criticism, and in that point alone does this edition depart from his text. The McLean edition changed the original numbering of the essays as they appeared in the newspapers. No. 35 of the newspapers was put back in the series and numbered 29. This was a proper change, because it placed the original No. 35 where it belonged in the nat- ural sequence of subjects and arguments. The original Nos. 29 and 30 thus became 30 and 31, respectively. Then the McLean edition divided the original No. 31 into two parts, and numbered them 32 and 33. This change has no apparent reason, but it is perfectly harmless and unim- portant. The effect of these changes was to advance the McLean essays one number each over the newspaper origi- nals up to "](>, which became yj in the book-form. The remaining essays, 78 to 85 inclusive, appeared first from the author's manuscript in the McLean edition, and were reprinted in the newspapers from that edition probably with the newspaper numbering, so that no No. 85 ever appeared in the newspapers. It is obvious that the McLean edition must have had the approval of Hamilton, because the last eight numbers were printed from his manuscript ; and if the edition had his sanction,' of course the arrangement and numbering must have had it also, for these were the only INTRODUCTION. :dv points on which it differed from the newspapers. It is clear, therefore, that Hamilton thought the McLean num- bering an improvement, and the changes then made in this direction have of course no effect whatever on the authority of the " Federalist " either as argument or interpretation. Mr. Dawson shows by an ingenious bit of reasoning that there was no " original number "jj" and accordingly omits that number from his edition, and thus makes his last num- ber 85. There is no ground, as I have pointed out, for thus adhering to an enumeration which omits one number be- cause there was confusion in the differing forms of original publication, and which has no peculiar authority or sanction. There is, moreover, one fatal objection to Mr. Dawson's system, in the fact that the numbering of the McLean edition has been universally adopted in all subsequent editions and has become the standard of reference. It is to be regretted that Mr. Dawson, in deference to rigid antiquarianism, should have marred his edition by a num- bering which, for no substantial reason, differs from the accepted standard, and which, on this account and by omitting one number altogether, makes intelligent reference to it difficult, if not impossible. The text of this edition, therefore, is, as I have said, the untouched original text, and the essays are numbered according to what, in my opinion, is the original arrange- ment, and which is certainly the best, as it is the standard numbering, that of the first edition of 1788. In conclusion, I have only to express my thanks to the many kind correspondents who have given me information as to the " Federalist " and its editions, and to state my obli- gations to the work of Mr. Dawson, to whose masterly intro- duction and admirable analytical table of contents this and all the subsequent editions of the essays of Publius must be largely indebted. Henry Cabot Lodge. May 21, 1886. THE FEDERALIST. For the Independent yournal. THE FEDERALIST. No. I. (HAMILTON.) To the People of the State of New York : After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to de- liberate on a new Constitution for the United States of America. The subject speaks its own importance; compre- hending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently re- " marked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capa- ble or not of establishing good government from reflection and choice, or whether they are forever destined to depend - for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made ; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all con- siderate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious esti- mate of our true interests, unperplexed and unbiassed by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations 3 THE FEDERALIST. affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, pas- sions and prejudices little favorable to the discovery of truth. Among the most formidaW£_jDl--tiie--©bata£leswhich__the new Constitution will have to encounter may readily be disttrrgu'isKedTHe obvious interest of a certain class of men in every State to resist all changes which may_hazard a diminution of the power, emiorument,'and consequence of the offices they hold iind'er the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer pros- pects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government. It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenu- ous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions ; and it cannot be doubted that much of the opposition which has made its appearance, or may here- after make its appearance, will spring from sources, blame- less at least, if not respectable — the honest errors of minds led astray by preconceived jealousies and fears. So numer- ous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would fur- nish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that THE FEDERALIST. % those who advocate the truth are influenced by purer prin- ciples than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to mod- eration, nothing could be more ill-judged tha n that in toler ant spirit_wdiicE]T gsr'ar"aTltimes. charac terized political par tiea^ For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will hap- pen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigma- tized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretence and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of lib- erty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigorof_govtrnment is essential to the security of liberty ; that, in the contemplation of a sound and well- informed judgment, their interest can never be separated ; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and effi- THE FEDERALIST. ciency of government. History will teach us that the for- mer has been found a much more certain road to the intro- duction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people ; commencing demagogues, and ending tyrants. In the course of the preceding observations, I haveJiad angye,-jriy fellow-citizens, to putting you upon your guard against all attempts, fronT whateveF~quarter; to influence --your,decisTorrTn~ar^atter of the utmost moment to your _wclfare, by any'impressions other than those which may result from the evidence of truth. You will, no doubE7at -the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, J^-a-m clearly of opin-ionitJs your Jnteres^ta.adopt it. I am con- vinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknovi'ledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in' a spirit which will not disgrace the cause of truth. I propose, in a series of papers, to discuss the following interesting particulars: — The utility of the UNION to your political prosperity — The insufficiency of the present Confedera- tion to preserve that Union — The necessity of a government at least equally energetic with the one proposed, to the attainine7it of this object — The conformity of the proposed Constitu- tion to the true principles of republican governments-Its THE FEDERALIST. 7 analogy to your own State constitution— a.r\d lastly, The addi- tional security which its adoption will afford to the preserva- tion of that species of government, to liberty, and to property. In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.* This doctrine will, in all probabilityj_be_gradually propa- gated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address. PUBLIUS. For ihe l7idependent yournal. THE FEDERALIST. No. II. (jay.) To the People of the State of New York : When the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged * The same idea, tracing the arguments to their consequences, is held out in several of the late publications againtt the new Constitution. — Publius. 8 THE FEDERALIST. their attention, the propriety of their taking a very compre- hensive, as well as a very serious, view of it, wil-! be evident. Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government. It has until lately been a received and uncontradicted opinion, that the prosperity of the people of America de- pended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct con- federacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates ; and certain characters who were much opposed to it for- merly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy. It has often given me pleasure to observe, that indepen- ent America was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with in- numerable streams, for the delight and accommodation of THE FEDERALIST. its inhabitants. ( A succession of navigable waters forms a kind' of chain round its borders, as if to bind it together ; while the rnost noble rivers in the world, running at con- venient distances, present them with highways for the easy ' communication of friendly aids, and the mutual transporta- tion and exchange of their various commodities.) . With equal pleasure I have as often taken notice, that Providence has been pleased to give this one connected ' country to one united people — a people descended from the ' same ancestors, speaking the same language, professing ^he ^^me religion, attached to the same principles of govern- ment, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly estab- lished general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Provi- dence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people ; each indi- vidual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war ; as a nation we have vanquished our common enemies ; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal gov- ernment to preserve and perpetuate it. They formed it almost as soon as they had a political existence ; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hos- tility and desolation left little room for those calm and lO THE FEDERALIST. mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that i govern- ment instituted in times so inauspicious, should on experi- ment be found greatly deficient and inadequate to the" purpose it was intended to answer. This intelligent people perceived and regretted these defects. Still continuing no less atttached to union than enamored of liberty, they observed the danger which imme- diately threatened the former and more remotely the latter ; and being persuaded that ample security for both could only be found in a national government more wisely framed, they, as with one voice, convened the late convention at Philadelphia, to take that important subject under con- sideration. This convention, composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue, and wisdom, in times which tried the minds and hearts of men, under- took the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation ; and finally, without having been awed by power, or influenced by any passions except love for their country, they pre- sented and recommended to the people the plan produced by their joint and very unanimous councils. Admit, for so is the fact, that this plan is only recom- mended, not imposed, yet let it be remembered that it is neither recommended to hlijid approbation, nor to blind reprobation ; but to that sedate and candid consideration which the magnitude and importance of the subject demand,, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experience on a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger in- THE FEDERALIST. II duced the people of America to form the memorable Con- gress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom ; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures. Not only many of the officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments, or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the great majority of the people reasoned and decided judiciously ; and happy they are in reflecting that they did so. They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful infor- mation. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and there- fore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable. These and similar considerations then induced the people " to rely greatly on the judgment and integrity of the Con- gress ; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or gen- erally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly ap- 12 THE FEDERALIST. proved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience. It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the pros- perity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union ? Or why is it sug- gested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union, rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct con- federacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the con- tinuance of the Union in the utmost jeopardy. That cer- tainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason ' to exclaim, in the words of the poet : " FAREWELL ! A LONG Farewell to all my Greatness." Publius.. For the Independent yournal. THE FEDERALIST. No. III. (JAY.) To the People of the State of New York : It is not a new observation that the people of any coun- try (if, like the Americans, intelligent and well-informed) seldom adopt and steadily persevere for many years in an THE FEDERALIST. 1 3 erroneous opinion respecting their interests. That con- sideration naturally tends to create great respect for the high opinion which the people of America have so long and uniformly entertained of the importance of their continuing firmly united under one federal government, vested with sufficient powers for all, general and national purposes. The more attentively I consider and investigate the reasons which appear to have given birth to this opinion, the more I become convinced that they are cogent and conclusive. Among the many objects-to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. The safety of the people doubtless has relation to a great variety of circum- stances and considerations, and consequently affords great latitude to those who wish to define it precisely and com- prehensively. At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes. As the former of these comes first in order, it is proper it should be the first discussed. Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad. The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real ox pretended, which provoke or invite them. If this remark be just, it be- comes useful to inquire whether so n\-3X^Y just causes of war are likely to be given by United America as by disunited America ; for if it should turn out that United America will probably give the fewest, then it will follow that in this re- spect the Union tends most to preserve the people m a state of peace with other nations. 14 THE FEDERALIST. The just causes of war, for the most part, arise either from violations of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive com- merce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neigh- borhood to attend to. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four dis- tinct confederacies. Because when once an efficient national government is established, the best men in the country will not only con- sent to serve, but also will generally be appointed to man- age it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government, — especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national govern- ment will be more wise, systematical, and judicious than those of individual States, and consequently more satisfac- tory with respect to other nations, as well as more safe with respect to us. Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,— whereas adjudications on the same points and questions, in thirteen States, or in three or four confed- eracies, will not always accord or be consistent ; and that, as THE FEDERALIST. I 5 well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended. Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice ; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning. Because, even if the governing party in a State should be disposed to resist such temptations, yet, as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabit- ants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggres- sors. But the national government, not being affected by those local circumstances, will neither be induced to com- mit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford just causes of war, they are less to be apprehended under one general govern- ment than under several lesser ones, and in that respect the former most favors the safety of the people. As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Because such violences are more frequently caused by the passions and interests of a part than of the whole ; of one or 1 6 THE FEDERALIST. two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is ; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offences, have given occasion to the slaughter of many innocent inhabitants. The neighborhood of Spanish and British territories, bor- dering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations ; and nothing can so effectu- ally obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested. But not only fewer just causes of war will be given by the "^ national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offences. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difificulties which threaten them. Besides, it is well known that acknowledgments, explana- tions, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power. In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded THE FEDERALIST. IJ that they should send th&'ir Doge, or chief magistrate, accom- panied by four of their senators, to France, to ask his par- don and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, of Britain, or zxiy ot\\Q.x powerful nation 1 PUBLIUS. For the Independent yournal. THE FEDERALIST. No. IV. Oay.) To the People of the State of New York : My last paper assigned several reasons why the safety of the people would be best secured by union against the danger it may be exposed to by just causes of war given to other nations ; and those reasons show that such causes would not only be more rarely given, but would also be more easily accommodated, by a national government than either by the State governments or the proposed little con- federacies. But the safety of the people of America against dangers irom foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult ; for it need not be observed that there dLve pretended a.s well as just causes of war. It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it ; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified THE FEDERALIST by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others whicb affect nations as often as kings ; and some of them will on examination be found to grow out of our relative situation and circumstances. With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper than they can them- selves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. With them and with most other European nations we are rivals in navigation and the carrying trade ; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish ; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it. In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excel- lence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advan- tages which those territories afford, than consists with the wishes or policy of their respective sovereigns. Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; nor will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it THE FEDERALIST. 1 9 is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advance- rrient in union, in power and consequence by land and by sea, with an eye of indifference and composure. The people of America are aware that indiicements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretences to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. That situation consists in the best possible state of defence, and necessarily depends on the government, the arms, and the resources of the country. As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent than any other given number whatever. One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform prin- ciples of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defence of any particular part, and that more easily and expeditiously than State governments or separate con- federacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of dis- cipline, and, by putting their officers in a proper line of sub- ordination to the Chief Magistrate, will, as it were, consoli- date them into one corps, and thereby render them more 20 THE FEDERALIST. efficient than if divided into thirteen or into three or four distinct independent companies. What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales ? Suppose an invasion ; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would ? We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government had not so regulated the navigation of Britain as to make it a nur- sery for seamen — if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have _ been celebrated. Let England have its navigation and fleet — let Scotland have its navigation and fleet — let Wales have its navigation and fleet — let Ireland have its navigation and fleet — let those four of the constituent parts of the British empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance. Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments— what armies could they raise and pay — what fleets could they ever hope to have ? If one was attacked, would the others fly to its succor, and spend their blood and money in its defence ? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished. Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states THE FEDERALIST. 21 of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what pro- portion shall aids of men and money be afforded ? Who shall command the allied armies, and from which of them shall he receive his orders ? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence ? Various difficul- ties and inconveniences would be inseparable from such a situation ; whereas one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people. But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is ; and they will act towards us accordingly. If they see that our national government is efficient and well administered, our trade prudently regu- lated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re- established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably dis- cordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes ! How liable would she become not only to their contempt, but to their outrage ; and how soon would dear-bought experience proclaim that 22 THE FEDERALIST. when a people or family so divide, it never fails to be against themselves. PUBLIUS. For the Independent yournal. THE FEDERALIST. No. V. (jay.) To the People of the State of New York : Queen Anne, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the im- portance of the Union then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: "An entire and perfect union will be the solid foundation of lasting peace : It will secure your- religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade ; and by this union the whole island, being joined in affection and free from all apprehen- sions of different interest, will be enabled to resist all its ene- mies." " We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, use their utmost endeavors to prevent or delay this union." It was remarked in the preceding paper, that weakness and divisions at home would invite dangers from abroad ; and that nothing would tend more to secure us from them than union, strength, and good government within our- selves. This subject is copious and cannot easily be ex- hausted. The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them. Although it seems obvious to THE FEDERALIST. 23 common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly em- broiled in quarrels and wars with one another. Notwith- standing their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were per- petually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being "joined in affection " and free from all apprehension of different " interests," envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the gen- eral interests of all America, would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them. The most sanguine advocates for three or four confeder- acies cannot reasonably suppose that they would long re- main exactly on an equal footing in point of strength, even if it was possible to form them so at first ; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their rela- tive equality in strength and consideration would be de- stroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years. 24 THE FEDERALIST. Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or con- federacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her import- ance ; and would also restrain them from measures calcu- lated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposi- tion equally unfavorable to them. Distrust naturally cre- ates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. The North is generally the region of strength, and many local circumstances render it probable that the most North- ern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the Northern Hive would excite the same ideas and sensa- tions in the more southern parts of America which it for- merly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers ; that they would neither love nor trust one another, but on the con- trary would be a prey to discord, jealousy, and mutual in- juries ; in short, that they would place us exactly in' the situations in which some nations doubtless wish to see us m\z., formidable only to each other. THE FEDERALIST. 25 From these considerations it appears that those gentle- men are greatly mistaken who suppose that allia-nces offen- sive and defensive might be formed between these confed- eracies, and would produce that combination and union of wills, of arms, and of resources, which would be necessary to put and keep them in a formidable state of defence against foreign enemies. When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be distinct nations. Each of them would have its commerce with foreigners to regulate by distinct treaties ; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial con- cerns must create different interests, and of course different degrees of political attachment to and connection with dif- ferent foreign nations. Hence it might and probably would happen that the foreign nation with whom the Southern confederacy might be at war would be the one with whom the Northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith. Nay, it is far more probable that in America, as in Eu- rope, neighboring nations, acting under the impulse of op- posite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confedera- cies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or 26 THE FEDERALIST. compel them to depart. How many conquests did the Ro- mans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect. Let candid men judge, then, whether the division of America into any given number of independent sovereign- ties would tend to secure us against the hostilities and im- proper interference of foreign nations. PuBLIUS. For the Indepeiideiit Journal, THE FEDERALIST. No. VL (HAMILTON.) To the People of the State of New York : The three last numbers of this paper have been dedi- cated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dan- gers of a different and, perhaps, still more alarming kind — those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already in some instances slightly anticipated ; but they deserve a more particular and more full investigation. A man must be far gone in Utopian speculations who can seriously doubt that, if these State s shou ld either be wholly disunited, or only united in partial confederacies, the subdi- visions into which they might be thrown would have fre- quent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of .harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disre- gard the uniform course of human events, and to set at defiance the accumulated experience of ages. The causes of hostility among nations are innumerable. THE FEDERALIST. 27 There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the lo3ie-of-p©wer-or-the— desire-of— pr-s-e-nai.^^ nence and dominion — the jealousy of power, or the desire of e'quaiity^-aftd-sa-fety: — There are others which have a more circumscribed though an equally operative influence within their spheres. Such are_th£_riva-l6M-ps-aH4— GomB etition s of - commerce between commercial nations. And there are otheH^ ho^rlesT'numero'usThan either of the former, which take their origin entirely in private passions ; in the attach- ments, enmities, interests, hopes, and fears of leading indi- viduals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the con- fidence they possessed ; and assuming the pretext of some public motive, have not scrupled to sacrifice the natiojiaL.,- tranquillity tO- persona l advanta ge, or personargratificat ioflj_. The celebrated Pericles, in compliance with the resent- ment of a prostitute,* at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the Samnians. The same man, stim- ulated by private pique against the Megarensians,\ another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice in a supposed theft of the statuary Phidias,:): or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity,§ or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the Pelopounesian war ; which, after various vicissi- tudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. The ambitious cardinal, who was prime minister to Henry * Aspasia, vide " Plutarch's Life of Pericles." — PuBUUS. •f Hid. — PUBLIUS. i Ibid. — PUBUUS. § Ibid. Phidias was supposed lo have stolen some public gold, with the con- nivance of Pericles, for the embellishment of the statue of Minerva. — Publius. 28 THE FEDERALIST. VIII., permitting his vanity to aspire to the triple crown,* entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female, f the petu- lance of another, % and the cabals of a third, § had in the contemporary policy, ferments, and pacifications, of a con- siderable part of Europe, are topics that have been too' often descanted upon not to be generally known. To muliply examples of the agency of personal considera- tions_jn^_the_groduction of great nati onal ev ents, either foreign or domestic, according to their direction, would be an unnecessary" waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of in- stances ; and those who have a tolerable knowledge of human nature will not stand in need of such lights, to form their opinion either of the reality or extent of that agency. Per- haps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been ^a desgcrat_e_debtor, it is much to be doubted whether Massa- chusetts would haveljee'rr plunged into a civil wan But notwithstanding the concurring:, testiTTiorTy"of experi- ence, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered * Worn by the popes. —Publius. f Madame de M.-iintenon.— PuBUUS. X Duchess of Marlborough. — PuBi.ius. § Madame de Pompadour.— Publius. THE FEDERALIST. and alienated from each other. The genius of republics (say they) is pacific ; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those in- flammable humors which have so often kindled into wars. Commercial republics,_Jjke ours, will never be disposed to waste themselves in ruiiLOias contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord. Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit ? If this be their true interest, have they in fact pursued it ? Has it not, on the contrary, invariably been found that momentary passions, and immediate inter- ests, have a more active and imperious control over humin conduct than general or remote considerations of policy, utility, or justice? Have republics in practice been less addicted to war than monarchies ? Are not the former ad- ministered hy ^mcn as well as the latter.'' Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings ? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities ? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineer- ing and enterprising a passion as that of power or glory ? Have there not been as many wars founded upon commer- cial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of terri- tory or dominion ? Has not the spirit of commerce, in many instances, administered new incentives to the appe- tite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. 30 THE FEDERALIST. Sparta, Athens, Rome, and Carthage were all republics ; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defen- sive, as the neighboring monarchies of the same times. Sparta was little better than a well-regulated camp ; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggres- sor in the very war that ended in her destruction. Hanni- bal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave- him an over- throw in the territories of Carthage, and made a conquest of the commonwealth. Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states. Pope Julius II. found means to accomplish that formidable league,* which gave a deadly blow to the power and pride of this haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persever- ing and most implacable of the opponents of Louis XIV. In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war ; and the wars in which that king- dom has been engaged have, in numerous instances, pro- ceeded from the people. There, have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the im- portunities of their representatives have, upon various occa- sions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the state. In that memorable strug- * The League of Cambray, comprehending die Emperor, the King of France, the King of Aragon, and most of the Italian princes and states. — PUBLIUS. THE FEDERALIST. 3 1 gle for superiority between the rival houses of Austria and Bourbon, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader,* protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars^of these two last-mentioned nations have in a great measure grown D„ut_ofcommercial considerations, — the desire of supplanting and the f^ar~"of~bgrft g supp Jaated, either in particular branches of traffic or in the general ad- vantages of trade and navigation. f From this summary of what has taken place in other coun- tries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confed- eracy, in a state of separation ? Have we not already seen enough of the fallacy and extravagance of those idle theo- ries which have amused us with promises of an exemption from the imperfections, weaknesses, and evils incident to * The Duke of Marlborough. — Puelius. f In the text said to have been revised by Hamilton and Madison, and adopted by Mr. J. C. Hamilton, the following additional sentences occur at this point: "and sometimes even the more culpable desire of sharing in the com- merce of other nations without their consent. The last war but two between Britain and Spain sprang from the attempts of the English merchants to prose- cute an illicit trade with the Spanish main. These unjustifiable practices on their part produced severity on the part of the Spaniards towards the subjects of Great Britain which were not more justifiable, because they exceeded the bounds of a just retaliation and were chargeable with inhumanity and crueliy. Many of the English who were taken on the Spanish coast were sent to dig in the mines of Potosi ; and by the usual progress of a spirit of resentment, the inno- cent were, after a while, confounded with the guilty in indiscriminate punisli- ment. The complaints of the merchants kindled a violent flame throughout the nation, which soon after broke out in the House of Commons, and was commu- nicated from that body to the ministry. Letters of reprisal were granted, and a war ensued, which in its consequences overthrew all the alliances that but twenty years before had been formed with sanguine expectations of the most beneficial fruits." 32 THE FEDERALIST. society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical ,diaxim for the direction of our political conduct that we, as ■' well as the other inhabitants of the globe, are yet remote^ from the happy empire of perfect wisdom and perfect virtue ? /''"Tl^et the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare ! So far is the general sense of mankind from correspond- ing with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long obser- vation of the progress of society become a sort of axiom in politics, that vicinity, or near ness of sitj iation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect : " NEIGHBORING N4.TX0NS [says he] are naturally eiiemies of each other, unless -^ their common weakness forces them to league in a CONFED- ERATIVE REPUBLIC, and their constitution prevents the dif- ferences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize them- selves at the expense of their neighbors." * This passage, at the same time, points out the EVIL and suggests the REMEDY. PUBLIUS. For the Iitdependent Journal. THE FEDERALIST. No. VII. (HAMILTON.) To the People of the State of New York : It is sometimes asked, with an air of seeming triumph, what inducements could the States have, if disunited, to make war upon each other? It would be a full answer to *Vide " Principes des Negociations " par I'Abbe de Mably. — PuBLlus. THE FEDERALIST. 33 this question to say — precisely the same inducements which have, at different times, deluged in blood all the nations in the world. But,' unfortunately for us, the question admits '"of a more particular answer. There are causes of differences within our immediate contemplation, of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed. Territorial disputes, have at all times been found one of the most fertile sources of hostility among nations. Per- haps the greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force. We have a vast tract of unsettled territory within the boundaries of the United States. There still are discordant and undecided claims between sev- eral of them, and the dissolution of the Union would lay a foundation for similar claims between them all. It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were ungranted at the time of the Revolution, and which usually went under the name of crown lands. The States within the limits of whose colonial governments they were com- prised have claimed them as their property, the others have contended that the rights of the crown in this article de- volved upon the Union ; especially as to all that part of the Western territory which, either by actual possession, or through the submission of the Indian proprietors, was sub- jected to the jurisdiction of the king of Great Britain, till it was relinquished in the treaty of peace. This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power. It has been the prudent policy of Congress to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole. This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute. A dis- 34 THE FEDERALIST. memberment of the Confederacy, however, would revive this dispute, and would create others on the same subject. At present, a large part of the vacant Western territory is, by cession at least, if not by any anterior right, the common property of the Union. If that were at an end, the States which made the cession, on a principle of federal com- promise, would be apt, when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked ; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose ; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment. In the wide field of Western territory, therefore, we per- ceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contend- ing parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would some- times be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indi- cations of dissatisfaction with that determination ; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing THE FEDERALIST^ 35 here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision ; and States, like individuals, acquiesce with great reluctance in deter- minations to their disadvantage. Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not in- terested as from those which were interested in the claim ; and can attest the danger to which the peace of the Con- federacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition : one, a jealousy entertained of our future power ; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of lands under the actual government of that district. Even the States which brought forward claims, in contra- diction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont ; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited. The competitions of commerce would be another fruitful source of contention. The States less favorably circum- stanced would be desirous of escaping from the disadvan- tages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, prefer- 36 THE FEDERALIST. ences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. We should be ready to denominate injuries those things which were in reality the justifiable acts of inde- pendent sovereignties considting a distinct interest. The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. The opportunities which some States would have of ren- dering others tributary to them by commercial regula- lations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey, would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the ca- pacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors ; nor would it be practicable, if there were riot this impediment in the way, to distinguish the customers in our own mar- kets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit ? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to pre- THE FEDERALIST. 37 serve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative. The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill- humor and animosity. How would it be possible to agree upon a I'ule of apportionment satisfactory to all .? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exagger- ated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the pubHc beyond the proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision. The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamor ; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention. Suppose the difficulties of agreeing upon a ' rule sur- mounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others 38 THE FEDERALIST. would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the com- plaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with their engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delin- quencies in payments on the part of some of the States would result from a diversity of other causes — the real defi- ciency of resources ; the mismanagement of their finances; accidental disorders in the management of the government ; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of inimediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to- mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observa- tion, as true as it is trite, that there is nothing men differ so readily about as the payment of money. Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unre- strained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut, in consequence of the enormities perpetrated by the Legislature of Rhode Island ; and we reasonably infer that, in similar cases under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice. THE FEDERALIST. 39 The probability of incompatible alliances between the different States or confederacies and different foreign na- tions, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the per- nicious labyrinths of European politics and wars ; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera * must be the motto of every nation that either hates or fears us.f PUBLIUS. Frovi the New York Packet^ Tuesday, November 0,0, 1787. THE FEDERALIST. No. VIII. (HAMILTON.) To tJie People of ilie State of New York : Assuming it therefore as an established truth that the several States, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity with each other, which have fallen to the lot of all neighboring nations not united under one government, let us enter into a con- cise detail of some of the consequences that would attend such a situation. War between the States, in the first period of their separ- ate existence, would be accompanied with much greater dis- tresses than it commonly is in those countries where regular * Divide and command. — PUBLIUS. •f In order that the whole subject of these papers may as soon as possible be laid before the public, it is proposed to publish them four times a week on Tuesday in the New York Packet and on Thursday in the Daily Advertiser. ■ PUBLILS. 40 THE FEDERALIST. military establishments have long obtained. The disci- plined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advan- tage of rendering sudden conquests impracticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of for- tification has contributed to the same ends. The nations of Europe are encircled with chains of fortified places, which mutually obstruct invasion. Campaigns are wasted in reducing two or three frontier garrisons, to gain admittance into an enemy's country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly, an invading army would penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received ; but now a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more consider- able. The history of war, in that quarter of the globe, is no longer a history of nations subdued and empires over- turned, but of towns taken and retaken ; of battles that decide nothing; of retreats more beneficial than victories; of much effort and little acquisition. In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of .fortifications, leaving the frontiers of one State open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, there- fore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits. This picture is not too highly wrought ; though, I con- fess, it would not long remain a just one. Safety from ex- THE FEDERALIST. 4 1 ternal danger is the most powerful director of national con- duct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution ; and it is therefore inferred that they may exist under it.* Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain, f But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defence, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority. The expedients which have been mentioned would soon * This objection will be fully examined in its proper place, and it will be shown that the only natural precaution which could have been taken on this subject has been talcen ; and a much better one than is to be found in any con- stitution that has been heretofore framed in America, most of which contain no guard at all on this subject, — PuBLlus. f In the revised text: " This inference, from the very form of the proposi- tion, is, at best, problematical and uncertain." 42 TtiE FEDERALIST. give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and vs'ith the assistance of discipHned armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or con- federacies would permit them long to submit to this morti- fying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things ; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard. These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their represen- tatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the conten- tions which so often distracted the ancient repubhcs of Greece.'' Different answers, equally satisfactory, may be given to this question. The industrious habits of the peo- ple of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those repub- ics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of THE FEDERALIST. 43 the citizens, the inseparable companions of frequent hos- tihty. There is a wide difference, also, between military estab- lishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have no good pretext, if they are even so in- clined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defence, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations,, in favor of military exigencies ; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it ; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery ; they view them with a spirit of jealous acquies- cence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occa- sional mob, or insurrection ; but it will be unable to enforce encroachments against the united efforts of the great body of the people. In a country in the predicament last described, the con- trary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it ; its armies must be numerous enough for instant defence. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to fre- quent infringements on their rights, which serve to weaken 44 THE FEDERALIST. their sense of those rights ; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult ; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resist- ance to usurpations supported by the military power. The kingdom of Great Britain falls within the first de- scription. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, con- tributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the conti- nent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. 'T is possible, though not easy, that the people of that island may be enslaved from other causes ; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom. If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated sit- uation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much dispro- portioned in strength to be able to give us any dangerous THE FEDERALIST. 45 annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe — our liberties would be a prey to the means of defending ourselves against the ambition and jeal- ousy of each other. This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consider- ation of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea ; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formi- dable. PUELIUS. For the Independent JoumaL THE FEDERALIST. No. IX. (HAMILTON.) To the People of the State of New York : A firm Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic fac- tion and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid suc- cession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only 46 THE FEDERALIST. serve as short-lived contrasts to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. , If momentare^^ays of glory Tifeak forth from the gloom, while they^ dazzle us with a transient and ileeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated. ■ y From the disorders that disfigure the_ annals of- those- re- publics the adv-ocafesioiTHespotism have drawn argum'ents, not "THily "against the forms of republican government, but against the very principles of, civil -liberty;^ They have de- cried' air free government as inconsistent with the order of society, and have indulged themselves in malicious exulta- tion over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments .^^^of their errors. But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more per- fect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of gov- ernment as indefensible. The science of politics, however, like most other sciences, has receiveE^reat Tmprovement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into dis- tinct departments; the introduction of legislativT^ balances THE FEDERALIST. 47 and checks; theJnstitutLQn-,-o£_-cou-rts comgosedof judges hofding tBeir offices during good behavior; the representa- tion of 'the3eo2|e_in_tlg^Je£!s!aTure37^^~^ own Election : these are wholly new discoveries, or have made their principar progress towards perfectiorTimnod- ern times. They are means, and powerful means, by which ;he excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government,.! shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution ; I mean the ENLARGEMENT of the ORBIT within which such systems are to l^evolve, either in respect to the dimensions of a single State, or to the con- solidation of several smaller States into one great Confed- eracy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place. \. The utility of a Confederacy, as well to suppress factioa::__^ and to guard the iTrfefhal tranquillity of States, as to in- crease their external force and security, is in reality not a new idea. It has been practised upon in different countries and ages, and has received the sanction of the most ap- proved writers on the subjects of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the neces::__ sity of a contracted*"tefrit'6ry~for a republican governrnent. Buf they seefiTnot to TiaveTTeS^apprTsed' oT the sentiments of that great man expressed in another part of his work, nor to have adverted to the^conSequ'eiices" of 'the"priiiciple to which they subscribe with such ready acqiiiescence; — - When Montesquieu recommends a sriiair extent for re- pubHcs, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, 48 THE FEDERALIST. North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting_ours£liies4a-t©-a-n in- finity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries_Qf_unceasing discord, and the miser- ablelTBjecEs'of universal pity or contempt'; Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated pol- icy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America. Referring the examination of the principle itself to another pla.ce, as has been already mentioned, it will be suf- ficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested. So far are the^suggestions -of- Montesquieu from stand- ing in "apposition J:o. a general Union of the Staters', that he explicitly treats of a. CONFEDERATE TRepublic as the expedi- ent for exten^mg_the_sphere~of~p6purar^government, and recoriciiing the advantages of monarchy with those of republicanism. '" ' ' ' " It is very probable " (says he*) " that mankind would have been obliged at length to hve constantly under the gov- ernment of a single person, had they not contrived a kind * " Spirit of Laws," vol. i., book ix., chap. i. — PuBLlus. THE FEDERALIST. 49 of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a Confederate Republic. __ " This form-.of government is a convention by w hich sev- e ral smaller states agree to become members 2f_2j^g££_£^^ which they mten3~foform. It is a kind of assemblage of societies-t4iat--coTist1'tTrEe'~arnew one, capable of increasi'frg',~l33r means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body. " A republic of this kind, able to withstand an external force, may support itself without any internal corruptions The form of this society prevents all manner of incon- veniences. " If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. ^ Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces inde- pendent of those which he had usurped, and overpower him before he could be settled in his usurpation. " Should a popular insurrection happen in one of the con- — federate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other ; the confederacy may be dissolved, and the confederates preserve their sovereignty. "As this government is composed of small republics, it enjoys the internal happiness of each ; and with respect - to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies." I have thought it proper to quote at lengthj:hese_inter- esting passages, because they contain a luminous abridg- ment of the prind^ETirguments in favor of the.Union, and must- effecEualTy remove the false impressions which a misapplication of other parts of the work was calculated to 50 THE FEDERALIST. make. They have, at the same time, an intimate connection with the more immediate design of this paper ; which is, to illustrate the tendency of the Union to repress domestic .faction and insurrection. A distinction, more subtle than ac,curat.e,„Jias-been_raised between a confe deracy and a con solidation of the States. The essentiaLcharacteristic^ of the_first _is ^aid_ tojae, the (restriction of its authority to the membersinjjieicc.olle.ctive capacities, without reaching to the individuals of whom they are" composed. It' is contended" that"fhe"national council ougHF~t6 have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary ; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction, taken notice of, supposes to be inherent in their nature ; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown, in the course of this investigation, that as far as the principle con- tended for has prevailed, it has been the cause of incurable disorder and imbecility in the government^ ~ The de?ini^\on~'ot"ar'co7ifedcfate republic seems simply to be " an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority, are mere matters of discretion. So long as the separate organization of the members be not abolished ; so long as it exists, by a constitutional necessity, for local purposes ; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an associa- tion of states, or a confederacy. The proposed Constitu- tion, so far from implying an abolition of the State govern- ments, makes them constituent parts of the national THE FEDERALIST. 5 I sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of aJeder^^^overament. In . theTiiycian^ conf ederacyT which consisted of twenty- " three CITIES or republics, the largest were entitled to three votes in the COMMON COUNCIL, those of the middle class to two, and the smallest to one. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most delicate species of interference in their internal administration ; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says; " Were I to give a model of an excellent Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were not within the con- templation of this enlightened civilian ; and we shall be led to conclude, that they are the novel refinements of an erroneous theory. PUELIUS. / From the Ne%u York Packet, Friday, November 2^, 1787- THE FEDERALIST. No. X. (MADISON.) To the People of the State of New York : Among the numerous advantages promised by a well- constructed Union, none deserves to be more accurately developed than its tendency to break and control the vio- lence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, in- justice, and confusion introduced into the public councils, 52 THE FEDERALIST. have, in truth, been the mortal diseases under which popular governments have everywhere perished ; as they continue to be the favorite and fruitful topics from which the adver- saries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired ; but it would be an unwar- rantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and ex- pected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the p ublic go od, is disregarded in the conflicts of rival (^partTe^ and .that measures are too often decided, notaceordi-ngto the rules of justice-aTrd'thefnghts of the minor party, but by the^cu^jsripr ■^f orce'lSFjjOnterested -and-o^ejitje^ring-maJOTity. However anxiously we may wish that these complaints had no foun- dation, the evidence of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments ; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes ; and, particu- larly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and in- justice with which a factious spirit has tainted our public administrations. Bv_a_faction, I undfxstand^ a number o f citizens, whether amounting to a majority or minority oTThe wTToIe, who are united and actuated by some common impulse of passion, or of interest, adverse to t he rights of ot-Vipr rifiVpng n r tr. the permane nt_and_aggregate_iril&rests_Ql±h£^CQmmunity. Therearetwo methods of curing the mischiefs of faction : THE FEDERALIST. I the one, by rpmctving its causes ; the other, by controlling its effects. ^ There are again two methorls o f rpmnv ing the causes of faction : the one ^by destroying the liberty which is essential t o its existe nce ; the other, by giving to ever y c't'T^p" the same opinions, the same pay;sinnq, and the .ga me interests . It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly ex- pires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would, be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The _second expedient is as impracticable as thje__firs t wo ul d be unwise. As long a s th e reason of man continu es falli ble, andhe is at liberty to exercise it, different opinion s will be formed . As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the for- mer will be objects to which the latter will attach them- selves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection o f these facultie s is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees an^ kinds of property' immediately results; and from the influence of these on the sentiments and views of the respective propri- etors, ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man ; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice ; an attachment to dif- 54 THE FEDERAf/ST. ferent leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion pre- sents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common an d durable so urce of factio ns has bee n the various a nd unegual distributjo n of pToperty. Thosejwjio hold and those who are without propert y have ev er form^d^distin^t interests^n society. Those who are creditors, and those who are debt- ors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, ac- tuated by different sentiments and views. Thej;eg Tilation of these various and interfering in terests forms the principal fask ot m odern legislation, and i nvolves the spirit of party and"7actio n in the ri ecessary-arLd-ordinaoL-QPfiratiflnsflf . the government. " No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not im- probably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time ; yet what are many of the most important acts of legislation, but so many judicial deter- minations, not indeed concerning the rights of single per- sons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advo- cates and parties to the causes which they determine ? Is a law proposed concerning private debts ? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between THE FEDERALIST. 55 them. Yet the parties a r.£.-aad-^H-ttst-be,-t hemselves th e judges; anH ^the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manjafactures be encouraged, and in what degree, by restrictions on foreign manufactures ? are ques- tions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportion- ment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality ; yet there is, perhaps, no legislative act in which greater oppor- tunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with wliich they overburden the inferior number, is a shilling saved to their own pockets. It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. Th e inference to w hich we are brought is, that the causes of faction cannot be removed, aridT hat relief is only to~be~ so'ugh Fin the means of controlling its eff ects. 'TT^faction consists of less than a majority, relief is sup- plied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society ; but it will be unable to execute and mas k its vinlpnrp nnHpr tjip fnrmc nf the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of 55 THE FEDERALIST. popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. \ By what means is this object attainable ? EVade^tly by one of two only. Either the existence of tV ip ¥;arhe hgqqinn orint erest in a majority at the same time must;be preivented , or the majority, having such coexistent passion or\in'terest\ sion or\/n\t( d/situatiori. must berend ered, by their number and local/situatiori, una l- He to conc ert and carry into effect schemegf of oppressi on .jl rmTe impulse and the opportunity be suffered to coincide, we well know that neither moral nor reli^/ous motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful. Fronuthisj/xew-Qf-the. subject it may be concluded_that a pure democfacyjjDyjwhich I mean a society, consisting of 'a^mall rHlm6er£rcitizgns",;who assemble and administer the ^overn mentin pe rson, can admit of no cure for the mischiefs _ortactIonj .A common passTon'"oF"intefest will, in almost every case, be felt by a majority of the whole ; a communica- tion and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such d£mocracies_haye_ever been spectacles of turbu- lence and contention ; hav e ever ~TfeerPfound~Tnegmpatible with pefs6nahsecaTity"or~the rights of property ; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equaHty in their political rights, they would, at the same time, be per- fectly equalized and assimilated in their possessions, their opinions, and their passions. THE FEDERALIST. t,y A republic, by which I jnean a government in which the scheinFof~r^^^^^^ji^ takes place, opens a different pros- ^ pect, anH^proniises'fffe^ure-far-ivMeh-we-are-^eeking: — fcet— us examine f ne~p^Trts-i-H-wirieh— it-varreS'^onr^ure defnOC- racy, and we shall comprehend both the nature of the cure and the efificacy which it must derive from the Union. Thetw o great points of difference between a democracy and a republic are : first, the delegation of the government, uTlihe latter, to a small number of citizens elected by the rest ; secondly, the great er number of citizens, and greater sphe 7e~of country, over which the latter may be extend ed. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through t he medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love ot justice will be least likely to sac nHceit to temporary or partial considerations. Under such a regulation, it may weirEappen that the public voice, pronounced by the representatives of the people, will be more consona nt to the public goo d than if pronoun ced by the people the mse lves, conv ene d for the purpose . On the other h and^Iie_e£[ect may be inverted^ Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means,_fixst-&b.taiiL-th.e— - suffr ages, and then_,batiay-the-inte£estSr-^t-he-people. The question resulting is, whether small or extensive republics are more favorable ^to th&^ lection of proper guardians of.the public"weal ; andlt is clearlydecided in tavor ot the latter by two obvious considerations : In the first place, it is to be remarked that , however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a .fewT~and that, however^arge-Tt-inayHjgrtfteymust be lim- ited_ta-a,certain number, in ord er to guard against the con- fusi on of a nrultinrd e; Hence^ the number of representa- tives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the 58 THE FEDERALIST. small republic, it follows that, if the proportion of fit char- acters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the ^^,j^ small republic, it will be more difficult for unworthy candi- ^^/>' dates to practise with success the vicious arts by which elec- -'^^^^^^^ions are too often carried ; and the suffrages of the people being more free, will be rnare_liksLy;-tO'centreTiriTieiiwHb poss5S9~tlie_most_attractive merit^nd the most diffusive and established characters. It must be confessed that in this, as in most other cases, -r- there is a mean, on both sides of which inconveniences will ''^^^^^v-*-' be found to lie. By enlarging too much the number of '*^ vj. • electors, you render the representative too little acquainted ^^1!^^ With a ll their local circum stanc es a nd lesser interests ; as by ! "educing it too much, you render him unduly attached to hese, and too little fit to comprehend and pursue great ,nd national objects. The federal Constitution forms a happy combination in this respect ; the ^reat and aggregate interests t^ein ^ referre d to, the national, the l^ocal. and par^ t icular to th,e State l egislatures. The other point of difference is, the greater_jiumber of ^^citizens--_and_extenlL_nf_=t-erritt!r5r^wITieTrTnay"-b-e^ within the. compass of republican _than_ai.jderaoGratkrgov- ernment ; and it is this circumstance principally which ren- ders factious~coml5irmtrorrs-less--trrb"g"lIreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more fre- quently will a majority be found of the same party ; and the smaller the number of individuals composing a majority, ■ and the smaller the compass ^yithin which they are placed, the more easily will they concert and execute their plans of oppression. Extend,.the-splrere^and you take in-a-greater variety of parties and interests ;^ you make it less probable THE FEDERALIST. 59 th at a majority of the whole wil l have a common motive to inv ade tlie rig ht s of other citizen s ; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonor- able purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,— is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of in- justice ? It will not be denied that the representation of the Union will be most likely to possess these requisite en- dowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest ? In an equal degree does the increased variety of parties com- prised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert axid accomplishment of the secret wishes of an unjust and interested majority ? jlerej^jgain^JJafi-extent-ofTheTrniorr gives it the most palpable advantage. " The~influence of factious leaders— may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A reli- gious sect may degenerate into a political faction in a part of the Confederacy ; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it ; in the same proportion as such a 6o THE FEDERALIST. malady is more likely to taint a particular county or district, than an entire State. In the extent and proper structure of the Union, there- fore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists. PUBLIUS. For thd Independent yotimal. THE FEDERALIST. No. XL (HAMILTON.) To the People of tlie State of Nezv York : The importance of the Union, in a commercial light, is one of those points about which there is least room to en- tertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject. This applies as well to our intercourse with foreign countries as with each other. There are appearances to authorize a supposition that the adventurous spirit, which distinguishes the commercial char- acter of America, has already excited uneasy sensations in several of the maritime powers of Europe. They seem to be apprehensive of our too great interference in that carry- ing trade, which is the support of their navigation and the foundation of their naval strength. Those of them which have colonies in America look forward to what this country is capable of becoming, with painful solicitude. They fore- see the dangers that may threaten their American dominions from the neighborhood of States, which have all the disposi- tions, and would possess all the means, requisite to the creation of a powerful marine. Impressions of this kind will naturally indicate the policy of fostering divisions among us, and of depriving us, as far as possible, of an ACTIVE COMMERCE in our own bottoms. This would an- swer the threefold purpose of preventing our interference in THE FEDERALIST. 6 1 their navigation, of monopolizing tlie profits of our trade, and of clipping the wings by which we might soar to a dangerous greatness. Did not prudence forbid the.detail, it would not be difficult to trace, by facts, the workings of this policy to the cabinets of ministers. If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By pro- hibitory regulations, extending, at the same time, through- out the States, we may oblige foreign countries to bid against each other, for the privileges of our rnarkets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people — increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so — to any manufacturing nation ; and the im- mense difference there would be to the trade and navigation of such a nation, between a direct communication in its own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Sup- pose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports ; what would be the probable operation of this step upon her politics 1 Would it not enable us to negotiate, with the fairest pros- pect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that king- dom ? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate custom- ers and, paymasters for those articles which were wanted for the supply of our markets. But would not her naviga- tion be materially injured by the loss of the important advantage of being her own carrier in that trade ? Would not the, principal part of its profits be intercepted by the 62 THE FEDERALIST. Dutch, as a compensation for their agency and risk ? Would not the mere circumstance of freight occasion a considerable deduction ? Would not so circuitous an intercourse facili- tate the competitions of other nations, by enhancing the price of British commodities in our markets, and by trans- ferring to other hands the management of- this interesting branch of the British commerce ? A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the pre- possessions of a great part of the nation in favor of the American trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands and elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether sup- planted in our trade. A further resource for influencing the conduct of Euro- pean nations toward us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient govern- ment, would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufificient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most com- manding one. And if to this consideration we add that of THE FEDERALIST. 63 the usefulness of supplies from this country, in the prosecu- tion of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us toljargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union, we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate. But in the reverse of this eligible situation, we shall dis- cover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who, having nothing to fear from us, would with little scruple or remorse supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation, despicable by its weakness, forfeits even the privilege of being neutral. Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impractica- bility of success. An active commerce, an extensive navi- gation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature. But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political exist- ence ; and as they have a common interest in being our car- 64 THE FEDERALIST. riers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequalled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and Avhich is in itself an inex- haustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world. There are rights of great moment to the trade of Amer- ica which are rights of the Union — I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future ex- istence of these rights ; which the interest of more power- ful partners would hardly fail to solve to our disadvantage. The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors ? This branch of trade ought not to be considered as a par- tial benefit. All the navigating States may, in different degrees, advantageously participate in it, and under cir- cumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or, when time shall have more nearly assimilated the principles of navigation in the several States, will become, a THE FEDERALIST. 65 universal resource. To the establishment of a navy, it must be indispensable. To this great national object, a NAVY, union will contrib- ute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentred towards its formation and support. A navy of the United States, as it would embrace the re- sources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores — tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of na- tional economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of commerce to the prosperity of a navy. An unrestrained intercourse between the States them- selves will advance the trade of each by an interchange of their respective productions, not only for the supply of re- ciprocal wants at home, but for exportation to foreign mar- kets. The veins of commerce in every part will be replen- ished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commer- cial enterprise will have much greater scope, from the diver- sity in the productions of different States. When the sta- ple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not 66 THE FEDERALIST. less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value ; arising from the competitions of trade and from the fluctuations of markets. Particular articles may be in great demand at certain periods, and unsalable at others ; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggre- gate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions. It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate in- tercourse between them which would answer the same ends ; but this intercourse would be fettered, interrupted, and nar- rowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of com- mercial, as well as political, interests, can only result from a unity of government. There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long main- THE FEDERALIST. 6/ tained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a phys- ical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America — that even dogs cease to bark after having breathed awhile in our atmosphere.* Facts have too long supported these arro- gant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will add another victim to his triumphs. Let Americans disdain to be the instruments of European great- ness ! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great Ameri- can system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world ! PUBLIUS. From the New York Packet, Tuesday, November 27, 17S7. THE FEDERALIST. No. XII. (HAMILTON.) To the People of the State of New York : The effects of Union upon the commercial prosperity of the States have been sufficiently delineated. Its ten- dency to promote the interests of revenue will be the sub- ject of our present inquiry. The prosperity of commerce is now perceived and acknowledgd by all enlightened statesmen to be the most use- ful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares. By multiplying the means of gratifica- tion, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate the channels of * " Recherches jDhilosopliiques sur les Araericains." — PuBLlus. 68 THE FEDERALIST. industry, and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious hus- bandman, the active mechanic, and the industrious manu- facturer, — all orders of men, look forward with eager expec- tation and growing alacrity to this pleasing reward of their toils. The often-agitated question between agriculture and commerce has, from indubitable experience, received a decision which has silenced the rlvalship that once sub- sisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven. It has been found in various countries that, in proportion as commerce has flourished, land has risen in value. And how could it have happened other- wise ? Could that which procures a freer vent for the prod- ucts of the earth, which furnishes new incitements to the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state — could that, in fine, which is the faithful handmaid of labor and industry, in every shape, fail to augment that article, which is the prolific parent of far the greatest part of the objects upon which they are exerted ? It is astonishing that so simple a truth should ever have had an adversary ; and it is one, among a multitude of proofs, how apt a spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead men astray from the plainest truths of reason and conviction. The ability of a country to pay taxes must always be pro- portioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant cli- mates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch THE FEDEKALIST. 69 can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war. But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is imprac- ticable to raise any very considerable sums by direct taxa- tion. Tax laws have in vain been multiplied ; new methods to enforce the collection have in vain been tried ; the public expectation has been uniformly disappointed, and the treas- uries of the States have remained empty. The popular sys- tem of administration inherent in the nature of popular government, coinciding with the real scarcity of money in- cident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them. No person acquainted with what happens in other coun- tries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description. In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow com- pass. The genius of the people will ill brook the inquisi- tive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but 70 THE FEDERALIST. scanty supplies, in the unwelcome shape of impositions on their houses and lands ; and personal property is too precari- ous and invisible a fund to be laid hold of in any other v/ay than by the imperceptible agency of taxes on consumption. If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things must rest on the basis of a general Union. As far as this would be conducive to the interests of com- merce, so far it must tend to the extension of the rev- enue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade. The relative situation of these States ; the number of rivers with which they are intersected, and of bays that wash their shores ; the facility of communication in every direction ; the affinity of language and manners ; the famil- iar habits of intercourse ; — all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent eva- sions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insuffi- cient obstacles to the adventurous stratagems of avarice. In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr. Neckar computes the number of these patrols at upwards of twenty THE FEDERALIST. 7 1 thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communica- tion, and places in a strong hght the disadvantages with which the collection of duties in this country would be en- cumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country. If, on the contrary, there be but one government per- vading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard — the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unlade prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material in- fractions upon the rights of the revenue. A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the co-operation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve, by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a consid- erable distance from all other places with which they would have extensive connections of foreign trade. The passage from them to us, in a few hours, or in a single night, as be- tween the coasts of France and Britain, and of other neigh- boring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries ; but a circuitous contraband to one State, through the 72 THE FEDERALIST. medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment. It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial con- federacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this pro- portion.* There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons ; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty ; and if it should tend to di- minish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits. What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent ? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been * If my memory be right they amount to twenty per cent. — PuBHUS. THE FEDERALIST. 73 already intimated that excises, in tlaeir true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation ; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contri- butions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjec- ture, to occasion the oppression of individuals, without much aggregate benefit to the State ; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer. As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or its security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy con- cert ; and unite in deploring the infatuation of those coun- sels which led to disunion. PUBLIUS. Eor the Independent jfournal. THE FEDERALIST. No. Xllir (HAMILTON.) To the People of the State of New York : As connected with the subject of revenue, we may with propriety consider that of economy. The money saved from one object may be usefully applied to another, and 74 THE FEDERALIST. there will be so much the less to be drawn from the pockets of the people. If the States are united under one govern- ment, there will be but one national civil list to support ; if they are divided into several confederacies, there will be as many different national civil lists to be provided for — and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whdle. The entire separation of the States into thir- teen unconnected sovereignties is a project too extravagant and too replete v/ith danger to have many advocates. The ideas of men who speculate upon the dismemberment of the empire seem generally turned towards three confedera- cies — one consisting of the four Northern, another of the four Middle, and a third of the five Southern States. There is little probability that there Avould be a greater number. According to this distribution, each confederacy would com- prise an extent of territory larger than that of the kingdom of Great Britain. No well-informed man will suppose that the affairs of such a confederacy can be properly regulated by a government less comprehensive in its organs or institu- tions than that which has been proposed by the convention. When the dimensions of a State attain to a certain magni- tude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent. This idea admits not of precise demonstration, because there is no rule by which we can measure the momentum of civil power necessary to the government of any given number of individuals ; but when we consider that the island of Britain, nearly commensurate with each of the supposed confederacies, contains about eight millions of people, and when we reflect upon the degree of authority required to direct the passions of so large a society to the public good, we shall see no reason to doubt that the like portion of power would be sufficient to perform the same task in a society far more numerous. Civil power, properly organized and exerted, is capable of diffusing its force to a very great extent ; and can, in a THE FEDERALIST. 75 manner, reproduce itself in every part of a great empire by a judicious arrangement of subordinate institutions. The supposition that each confederacy into which the States would be likely to be divided would require a govern- ment not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, from all the causes that form the links of national sympathy and connection, may with cer- tainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful com- bination ; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens. The more Southern States, from various circum- stances, may not think themselves much interested in the encouragement of navigation. They may_^prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of •j6 THE FEDERALIST. America. Whatever may be the determination of Pennsyl- vania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State. Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense ; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground. If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up out of the necessities of revenue ; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part. PUBLIUS. From the New York Packet, Friday, November 30, 17S7. THE FEDERALIST. No. XIV. (MADISON.) To the People of the State of Neiv York : We have seen the necessity of the Union, as our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other com- mon interests, as the only substitute for those military establishments which have subverted the liberties of the Old World, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms have been betrayed by our THE FEDERALIST. 7/ own. All that remains, within this branch of our inquiries, is to take notice of an objection that may be drawn from the great extent of country which the Union embraces. A few observations on this subject will be the more proper, as it is perceived that the adversaries of the new Constitu- tion are availing themselves of the prevailing prejudice with regard to the practicable sphere of republican administra- tion, in order to supply, by imaginary difficulties, the want of those solid objections which they endeavor in vain to find. The error which limits republican government to a nar- row district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of axepuMic with a democracy, applying to the former reasonings drawn from theliaFure of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the pe9ple meet and exercise the gov- ernment in p_ersoj,x ; in a,^,pjLihIic,.-they.,ass£mble„and.,admin- ister jt.by.lheir^representativ£s„aod_agen.ts. A democracy, consequently, will be confined to a small spot.- A republic may be extended over a large region. To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advan- tages, or palliate the evils of those forms Jxj^^^aladn g in com - pa£ison_jyjejdcss--a-Hd-defeet-3-&f— the-r-ep^itbUeai^ ing as specimens of_the^la±txr jlofLjLUjJiuLeixLjdjsjiuJXtafiies of ancierrt-Sreece'^ndjiiodernltaly. Under the confusion of names, itlhas3-e£Ji-an-easy--ta«k~t.e-tr-ansfeiLJx»-_a.. re|ni.biU(i. observations, applicable tQ-a.„demoGraGy— only ;_aod anipng_ others, the ojjservation thatit can never be estabhshed but among a small number of people, living within a small com- pass of territory. Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the demo- 78 THE FEDERALIST. cratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentred, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration. As the natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions de- mand, and will include no greater number than can join in those functions ; so the natural limit of a republic is that distance from the centre which will barely allow the repre- sentatives to meet as often as may be necessary for the ad- ministration of public affairs. Can it be said that the limits of the United St ates excee d this distiSce7'W|TwirnTot~be sai-d— byTKose who recollect thaFTEe Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighbor- hood of Congress. That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are : on the east the Atlantic, on the south the latitude of thirty- one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty- fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. THE FEDERALIST. 79 Computing the distance between the thirty-first and forty- fifth degrees, it amounts to nine hundred and seventy-three common miles ; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount v/ill be eight hundred and sixty-eight miles and three fourths. The mean distance from the Atlantic to the Mississippi does not prob- ably exceed seven hundred and fifty miles. On a compari- son of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled ; or than Poland before the late dismemberment, where another national diet was the de- positary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Unioli. Favorable as this view of the subject may be, some obser- vations remain which will place it in a light still more satis-, factory. In the first place it is to be remembered that the genera: government is not to be charged with the whole power making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the mem- bers of the republic, but which are not to be attained by the separate provisions of any. The_s ubordinate g overnments, which can extend theirj:are_to-alf--these;;othe£oJ3Jects-w-hich. canZbels&paFately-provided'fdf, will retain their due author- ity and activity. Were it proposed by the plan of the con- vention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction. X 8o THE FEDERALIST. A second observation to be made is that the immediate object of the federal Constitution is to secure. the_uii.iQn_of_ the thirteen primitive StateSj_which_we-know_tg_be_practi- cable7"SITa"To"a3'a~fcrthem such other States ^sjnay_arise in ..-their-ov«i-bosoniS7;OTTir-tlfeir-neighborhoods,--which,we can- nofadubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will ren- der more equal to the task. Let it be remarked, in the third place, that the inter- -- course throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order ; accommodations for travellers will be multiplied and meliorated ; an interiornavigation on our eastern side will be opened throughout, or nearly through- out, the whole extent of the thirteen States. The commu- nication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the benefi- cence of nature has intersected our country, and which art finds it so little difficult to connect and complete. A fourth and still more important consideration is, that as almost every State will, on one side or other, be a front- ier, and will thus find, in a regard to its safety, an induce- ment to make some sacrifices for the sake of the general protection ; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may par- take least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be in- convenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government ; but they would find it more so to strug- gle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be THE FEDERALIST.- dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilib- rium will be maintained throughout. I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect ; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer con- tinue the mutual guardians of their mutual happiness ; can no longer be fellow-citizens of one great, respectable, and flourishing empire. Hearken not to the voice which petu- lantly tells you that the form of government recommended for your adoption is a novelty in the political world ; that it has never yet had a place in the theories of the wildest pro- jectors ; that it rashly attempts what it is impossible to ac- complish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys ; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defence of their sacred rights, consecrate their Union, and excite horror at the idea of tlieir becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rend- ing us in pieces, in order to preserve our liberties and pro- mote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new ? Is it not the glory of the people of America, that, whilst they have paid a decent regard to 82 THE FEDERALIST. the opinions of former times and other nations, they have not suffered a bUnd veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the lead- ers of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment, have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the w eight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accom- plished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incum- bent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed ; this is the work which has been new modelled by the act of your con- vention, and it is that act on which you are now to delib- erate and to decide. PuBLius. For the Independent yournal. THE FEDERALIST. No. XV. (HAMILTON.) To the People of the State of New York : In the course of the preceding papers, I have endeavored, my fellow-citizens, to place before you, in a clear and con- vincing light, the importance of Union to your political THE FEDERALIST. 83 safety and happiness. I have unfolded to you a complica- tion of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together to be severed or dissolved by ambition or by avar- ice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confir- mation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to tavel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a man- ner as it can be done, without sacrificing utility to despatch. In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be exam- ined is the " inefficiency: oi_th£- present-Confederation to,-^ the preservation ofthe Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a posi--' tion which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in pre- cipitating the extremity at which we are arrived, a reluctant 84 THE FEDERALIST. confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. ■^ We may indeed with propriety be said to have reacheid almost the last stage of national humiliation. There is scarcely any thing that can wouhd'~the^pride or degrade the character of an independent nation which we do not expe- . rience. Are there engagements to the performance of which we are held by every tie respectable among men ? These are the subjects of constant and unblushing viola- tion. Do we owe debts to foreigners and to our own citi- zens contracted in a time of imminent peril for the preser- vation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipula- tions, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not lefes than of our rights. Are we in a condition to resent or to repelthe aggression ? We have neither troops,jior treas. ury, nor government.* Are we even in a condition to re- monstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be re- moved. Are we entitled by nature and compact to a free participation in the navigation of. the Mississippi? Spain ^ excludes us from it. Is pujalic-eredit-an- indispensaBIe^ re- source in time of public danger? We seem to have aban- doned its cause as desperate and irretrievable. Is commerce of importance to national wealth ? Ours_ia_at_J;he-l-owest- ^point_of_declen*ion-: — Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors^ abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress ? The price of improved land in most parts of the country is much * " I mean for the Union." — PuELlus. THE FEDERALIST. 85 lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarm- ingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most use- ful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in. general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes? This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution ; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, im- pelled by every motive that ought to influence an enlight- ened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity. It is true, as has been before observed, that facts, too subborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system ; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it th6se~powers"which are requisite to supply that energy. 86 THE FEDERALIST. They seem still to aim at things repugnant and irreconcila- ble ; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political mon- vster of an imperiiim in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed V from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first princi- ples and main pillars of the fabric. ^' The great and radical vice in the construction of the existing Confederation is in the principle of. LEGISLA- TION for STATES or GOVERNMENTS,Ja_tlieir COR- PORATE- or COLLEGTIVLCAPACLT-IES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this pririciple'does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money ; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or dis- v^egard at their option. It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT ; a principle, in short, which, if it is to be executed at all, must substitute the violent and sangui- THE FEDERALIST. %) nary agency- of the sword to the mild influence of the magistracy. There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity ; leav- ing nothing to future discretion ; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non- observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed ; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little ^depend ence is to be plac e d on tr eatjes^whjdLhave, no ottier sanction than the obligations of good faith, and which ' oppose general con^iSemrtitihs ot peace and justice to the impulse of any immediate interest or passion. y If the particular__States-ia— tliis-GQ^un-tF}t-ace~disposed-to— stand" in a simil ar relation t o.- each— otheJU-and to_drop the pmj er t of a gen eral DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head ; but it would have the merit of being, at least, consistent and practicable. Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive ; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us. But if we are unwilling to be placed in this perilous situa- 88 THE FEDERALIST. tion ; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government ; we must extend the authority of the Union to the persons of the citizens, — the only proper objects of government. Uy^ Government implies the power of making laws. It is {/essential to the idea of a law, that it be attended with a sanction ; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedi- ence, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recom- mendation. This penalty, whatever it may be, can only be inflicted in two ways : by the agency of the courts and ministers of justice, or by military force ; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men ; the last kind must of necessity, be employed against bodies politic, or communi- ties, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty ; but these sentences can only be carried into execution by the sword. In an associ- ation where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war ; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it. There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected ; that a sense of common interest would preside over the conduct of the respective members, and would beget a full. compliance with all the constitutional THE FEDERALIST. 89 requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all ? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterest- edness than individuals ? The contrary of this has been inferred by all accurate observers of the conduct of mankind ; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number, than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are com- posed into improprieties and excesses, for which they would blush in a private capacity. " ^ In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its opera- tions. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the sub- ordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost alwa3^the rival and enemy of that power by which it is controlled or abridged. This simple proposi- tion will teach us, how little reason there is to expect, that the persons intrusted with the 'administration of the affairs go THE FEDERALIST. of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature. If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular admin- istrations, there will be little prospect of their being ex- ecuted at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims ; the momentary conveniences or inconveniences that would attend its adoption. All this will be done ; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted ; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assem- blies ; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to cooperate in the same views and pursuits. In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete" execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed ; the THE FEDERALIST. 9 1 delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial sub- stitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the tempta- tion of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked v/ith us in the same political voyage ? Why should we consent to bear more than our proper share of the common burden ? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote conse- quences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. ^ PUBLIUS. Frovi the New York Packet^ Tttesday^ December ^, 17S7. THE FEDERALIST. No. XVI. (HAMILTON.) To the People of the State of New York : The tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other govern- ments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and 92 THE FEDERALIST. particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mis- taken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers. This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy : It has been seen that de- linquencies in the members of the Union are its natural and necessary offspring ; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war. It remains to inquire how far so odious an engine of gov- ernment, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be con- fined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defence. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would com- monly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived ; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation THE FEDERALIST. 93 or omission of duty. This would be the more hkely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premedi- tation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandize- ment ; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the iirm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union. This may be considered as the violent death of the Con- federacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inchned to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuni- ary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pre- 94 THE FEDERALIST. tence of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council. It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism ; but it will be found in every light im- practicable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the popu- lousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A pro- ject of this kind is little less romantic than the monster- taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity. Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker THE FEDERALIST. 95 members ; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half. The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations ; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals ; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the governments of the particular States. To' this reasoning it. may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached. The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but 96 THE FEDERALIST. unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage. But if the execution of the laws of the national govern- ment should not require the intervention of the State legis- latures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defence, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The suc- cess of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representa- tives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, be- cause they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority. If opposition to the national government should arise from the disorderly conduct of refractory or seditious indi- viduals, it could be overcome by the same means which are daily employed against the same evil under the State gov- ernments. The magistracy, being equally the ministers of THE FEDERALIST. 97 the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an incon- siderable faction, or from sudden or occasional ill-humors that do not infect the great body of the community, the general government could command more extensive re- sources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in. certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismem- berments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precau- tion, and it would be idle to object to a government because it could not perform impossibilities. PUBLIUS. For the Independent Journal. THE FEDERALIST. No. XVII. (HAMILTON.) To the People of the State of New York : An objection, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It- may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons g8 THE FEDERALIST. intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion ; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected ; because the attempt to exercise those powers would be as troublesome as it would be nugatory ; and the possession of them, for that reason, would contribute nothing to the dignity, to the im- portance, or to the splendor of the national government. But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition ; still it may be safely affirmed, that, the sense of the constituent body of the national representa- tives, or, in other words, the people of the several States, would control the indulgence of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national authorities, than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments, if they administer their affairs with uprightness and prudence, will generally possess over the people ; a circumstance which at the same time teaches us that there is an inherent and intrinsic weak- ness in all federal constitutions ; and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty. THE FEDERALIST. 99 The superiority of influence in favor of the particular governments would result partly from the diffusive construc- tion of the national government, but chiefly from the nature of the objects to which the attention of the State adminis- trations would be directed. It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffu- siveness of the object. Upon the same principle that a man is more attached to his family than to his neighbor- hood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union ; unless the force of that principle should be destroyed by a much better administration of the latter. This strong propensity of the human heart woijld find powerful auxiliaries in the objects of State regulation. The variety of more minute interests, which will neces- sarily fall under the superintendence of the local administra- tions, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, — I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, con- tributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and lOO THE FEDERALIST. reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people ; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. The reasoning on this head has been abundantly excm- phfied by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them. Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation ; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience to the persons of whom they held it. Each principal vassal was a kind of sovereign within his particular demesnes. The consequences of this situation were a con- tinual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories them- selves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy. THE FEDERALIST. lOI When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purposes of a more regular authority. But in general, the power of the barons triumphed over that of the prince ; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority. This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aris- tocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom. The separate governments in a confederacy may aptly be compared with the feudal baronies ; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national I02 THE FEDERALIST. government. It will be well if they are not able to counter- act its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITS, in one case at the disposal of individuals, in the other case at the disposal of political bodies. A concise review of the events that have attended con- federate governments will further illustrate this important doctrine ; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direc- tion to the wrong side. This review shall form the subject of some ensuing papers. PUBLIUS. For the Independent youmaL THE FEDERALIST. No. XVIII. (HAMILTON AND MADISON.) To tlie People of the State of New York : Among the confederacies of antiquity, the most consider- able was that of the Grecian republics, associated under the Amphictyonic council. From the best accounts transmitted of this celebrated institution, it bore a very instructive analogy to the present Confederation of the American States. The members retained the character of independent and sovereign states, and had equal votes in the federal council. This council had a general authority to propose and resolve v/hatever it judged necessary for the common welfare of Greece ; to declare and carry on war ; to decide, in the last resort, all controversies between the members ; to fine the aggressing party ; to employ the whole force of the con- federacy against the disobedient ; to admit new members. The Amphictyons were the guardians of religion, and of the immense riches belonging to the temple of Delphos, where they had the right of jurisdiction in controversies between the inhabitants and those who came to consult the oracle. THE FEDERALIST. IO3 As a further provision for the efficacy of the federal powers, they took an oath mutually to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple. In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyonshad in their hands the superstition of the times, one of the principal engines by which government was then maintained ; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions. Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities ; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being ke^t in awe and subor- dination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years ; at a subsequent period, after the battle of Leuctra, the Thebans had their turn of domination. It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker ; and that judgment went in favor of the most powerful party. Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes, convulsions, and carnage. After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities I04 THE FEDERALIST. should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common centre, had become, in fact, satellites of the orbs of primary magnitude. Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reforma- tion. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies ; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war ; which itself ended in the ruin and slavery of the Athenians who had begun it. As a weak government, when not at war, is ever agitated by internal dissensions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted .by Athens and Spairta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphic- tyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Mace- don, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long THE FEDERALIST. 1 05 planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities ; by their influence and votes, gained admis- sion into the Amphictyonic council ; and by his arts and his arms, made himself master of the confederacy. Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon ; and might have proved a barrier to the vast projects of Rome. The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction. The Union here was far more intimate, and its organiza- tion much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it. The cities composing this league retained their municipal jurisdiction, appointed their own oiificers, and enjo3'ed a perfect equality. The senate, in which they were repre- sented, had the sole and exclusive right of peace and war ; of sending and receiving ambassadors ; of entering into treaties and alliances ; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two prastors associated in the administration ; but on trial a single one was preferred. It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only, that the cities were in a manner compelled to 106 THE FEDERALIST. receive the same laws and usages. When Lacedsemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achasans. The Amphicty- onic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems. It is much to be regretted that such imperfect monuments remain of this curious political fabric. Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. The Abb6 Mably, in his observations on Greece, says that the popular govern- ment, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, because it tuas there tempered by the general authority and laws of the confederacy. We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities ; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the repubhc. Whilst the Amphictyonic confederacy remained, that of the Achseans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander.- Under the succec- THE FEDERALIST. 107 sors of these princes, however, a different policy prevailed. The arts of division were practised among the Achseans. Each city was seduced into a separate interest ; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons ; others under that of usurpers spring- ing, out of their own confusions. Shame and oppression erelong awakened their love of liberty. A few cities re- united. Their example was followed by others, as oppor- tunities were found of cutting off their tyrants. The league soon embraced almost the whole Peloponnesus. Macedon saw its progress ; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achseans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achseans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league. TheAchaeans were now reduced to the dilemma of submit- ting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing oppor- tunity to that powerful neighbor of intermeddhng in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achseans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achseans, though weakened by internal dissensions and by the revolt of Messene, one of its mem- I08 THE FEDERALIST. bers, being joined by the ^tolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introdu- cing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered ; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among its members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their country- men. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty* throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces ; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour. I have thought it not superfluous to give the outlines of this important portion of history ; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head. PUBLIUS. For the Independent jfournal. THE FEDERALIST. No. XIX. (HAMILTON AND MADISON.) To the People of the State of Netu York : The examples of ancient confederacies, cited in my last paper, have not exhausted the source of experimental in- * This was but another name more specious for the independence of the members on the federal head. — PUBLIUS. THE FEDERALIST. I09 struction on this subject. There are existing institutions, founded on a similar principle, which merit particular con- sideration. The first which presents itself is the Germanic body. In the early ages of Christianity, Germany was occupied by seven distinct nations, who had no common chief. The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them. In the ninth century Charlemagne, its warlike monarch, carried his victorious arms in every direction ; and Germany became a part of his vast dominions. On the dismemberment, which took place under his sons, this part was erected into a separate and independent empire. Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity of imperial power. But the principal vassals, whose fiefs had become hereditary, and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and indepen- dence. The force of imperial sovereignty was insufficient to restrain such powerful dependants ; or to preserve the unity and tranquillity of the empire. The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states. The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian, and the accession of the first emperor of the Austrian lines. In the eleventh century the emperors enjoyed full sovereignty : In the fifteenth they had little more than the symbols and decorations of power. Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic empire. Its powers are vested in a diet representing the component members of the confederacy ; in the emperor, who is the executive magistrate, with a negative on the decrees of the diet ; and no THE FEDERALIST. in the imperial chamber and the aulic council, two judiciary- tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members. The diet possesses the general power of legislating for the empire ; of making war and peace ; contracting alliances ; assessing quotas of troops and money; constructing fortresses ; regulating coin ; admitting new members ; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confed- eracy are expressly i^estricted from entering into compacts prejudicial to the empire ; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet ; from altering the value of money ; from doing injustice to one another ; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these re- strictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber. The prerogatives of the emperor are numerous. The most important of them are : his exclusive right to make propositions to the diet ; to negative its resolutions ; to name ambassadors ; to confer dignities and titles ; to fill vacant electorates ; to found universities ; to grant privileges not injurious to the states of the empire ; to receive and apply the public revenues ; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe. From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. THE FEDERALIST. 1 1 I Nothing would be further from the reahty. The funda- mental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns, and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels. The history of Germany is a history of wars between the emperor and the princes and states ; of wars among the princes and states themselves ; of the licentiousness of the strong, and the oppression of the weak ; of foreign intrusions, and foreign intrigues ; of requisitions of men and money disregarded, or partially complied with ; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty ; of general imbecility, confusion, and misery. In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign ; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers ; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution. If the nation happens, on any emergency, to be more united by the necessity of self-defence, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride. 112 THE FEDERALTST. separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy- are in the field ; and before the federal troops are ready to take it, are retiring into winter quarters. The small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irreg- ular and disproportionate contributions to the treasury. The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experi- ment of dividing the empire into nine or ten circles or dis- tricts ; of giving them an interior organization, and of charg- ing them with the military execution of the laws against delinquent and contumacious members. This experiment has only served to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters ; and then they increase the mischief which they were instituted to remedy. We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abbe de St. Croix enjoyed certain immunities which had been re- served to him. In the exercise of these, on some public oc- casions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to en- force it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an anti- quated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory,* he took * Pfeffel, "Nouvel Abreg. Chroiiol. de I'Hist., etc., d'AUemagne," says the pretext was to indemnify himself for the expense of the expedition. — PuBLlus. TFIE FEDERALIST. II3 possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains. It may be asked, perhaps, what has so long kept this dis- jointed machine from falHng entirely to pieces ? The an- swer is obvious : The weakness of most of the members, who are unwilling to expose themselves to the mercy of for- eign powers ; the weakness of most of the principal mem- bers, compared with the formidable powers all around them ; the vast weight and influence which the emperor derives from his separate and hereditary dominions ; and the inter- est he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe ; — these causes support a feeble and preca- rious Union ; whilst the repellent quality, incident to the nature of sovereignty, and which time continually strength- ens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place, which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as inter- ested in the changes made by events in this constitution ; and have, on various occasions, betrayed their policy of per- petuating its anarchy and weakness. If more direct examples were wanting, Poland, as a gov- ernment over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defence, it has long been at the mercy of its powerful neighbors ; who have lately had the mercy to disburden it of one third of its people and territories. The connection among the Swiss cantons scarcely amounts to a confederacy ; though it is sometimes cited as an instance of the stability of such institutions. They have no common treasury ; no common troops even in war ; no common coin ; no common judicatory ; nor any other common mark of sovereignty. 114 THE FEDERALIST. They are kept together by the peculiarity of their topographical position ; by their individual weakness and insignificancy ; by the fear of powerful neighbors, to one of which they were formerly subject ; by the few sources of contention among a people of such simple and homogeneous manners ; by their joint interest in their dependent posses- sions ; by the mutual aid they stand in need of, for suppres- sing insurrections and rebellions, an aid expressly stipulated, and often required and afforded ; and by the necessity of some regular and permanent provision for accommodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pro- nounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy ; in which he obliges himself to inter- pose as mediator in disputes between the cantons, and to employ force, if necessary, against the contumacious party. So far as the peculiarity of their case will admit of com- parison with that of the United States, it serves to confirm the principle intended to be established. Whatever efificacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of relig- ion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages. That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of. the Protestant asso- ciation, with the United Provinces ; and of Luzerne, at the head of the Catholic association, with France. PUBLius. THE FEDERALIST. IIJ From the New York Packet, Tuesday, December ii, 1787. THE FEDERALIST. No. XX. (HAMILTON AND MADISON.) To the People of the State of New York : The United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed. The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous. The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years ; from two provinces they continue in appointment during pleasure. The States-General have authority to enter into treaties and alliances ; to inake war and peace ; to raise armies and equip fieets ; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors ; to execute treaties and alliances already formed ; to provide for the collection of duties on imports and exports ; to regulate the mint, with a saving to the provincial rights ; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration. The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title ; from his great patrimonial estates ; from his family connections with some of the chief potentates of Europe : Il6 THE FEDERALIST. and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union ; in which provincial quality he has the appointment of town magis- trates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon. As stadtholder of the union, he has, however, consider- able prerogatives. In his political capacity he has authority to settle disputes between the provinces, when other methods fail ; to assist at the deliberations of the States-General, and at their par- ticular conferences ; to give audiences to foreign ambassa- dors, and to keep agents for his particular affairs at foreign courts. In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs ; disposes of all appointments, from colonels to en- signs, and of the governments and posts of fortified towns. In his marine capacity he is admiral-general, and super- intends and directs every thing relative to naval forces and other naval affairs ; presides in the admiralties in person or by proxy ; appoints lieutenant-admirals and other ofificers ; and establishes councils of war, whose sentences are not executed till he approves them. His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men. Such' is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it ? Imbecility in the govern- ment ; discord among the provinces ; foreign influence and indignities ; a precarious existence in peace, and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution. The union of Utrecht, says another respectable writer, THE FEDEliALIST. 11/ reposes an authority in the States-General, seemingly suffi- cient to secure harmony, but the jealousy in each province renders the practice very different from the theory. The same instrument, says another, obliges each province to levy certain contributions ; but this article never could, and probably never will, be executed ; because the inland prov- inces, who have little commerce, cannot pay an equal quota. In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others ; and then to obtain reimbursement from the others, by deputations, which are frequent, or other- wise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes. It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet ; a thing practicable, though dreadful, in a confed- eracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance ; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and. persevering defence. Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious. In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formally and finally recognized, was con- cluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitu- tional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for Il8 THE FEDERALIST. want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. Notwithstanding the calamities produced by the stadt- holdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. Under such a government," says the Abb6 Mably, " the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickenmg their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple, " that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place." These are not the only circumstances which have con- trolled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always- at their mercy. The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by extraordinary assemblies, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to unite the public councils in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow- citizens, for one moment, over this melancholy and monitory lesson of history ; and with the tear that drops for the calamities brought on mankind by their adverse opinions THE FEDERALIST. II9 and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distin- guished the consultations for our political happiness. A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed. This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom, and happiness : The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own. I make no apology for having dwelt so long on the con- templation of these federal precedents. Experience is the oracle of truth ; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradis- tinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destruc- 'iwi&'coercion of the sword in place of the mild and salutary coercion, of the magistracy. PUBLIUS. For the Independent Journal. THE FEDERALIST. No. XXI. (HAMILTON.) To the People of the State of New York : Having in the three last numbers taken a summary review of the principal circumstances and events which have de- picted the genius and fate of other confederate governments. I20 THE FEDERALIST. I shall now proceed in the enumeration of the most im- portant of those defects which h ave hithert o_disappointed our hopes from the system establishedamong ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease. The next most palpable defect of the subsisting Confedera- tion, is the total want of a SANCIIQN to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privi- leges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members ; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by in- ference and construction, in the face of that part of the second article, by which it is declared, " that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening , or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution ; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the speci- mens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other in- stitution of a similar kind, and exhibits a new and unex- ampled phenomenon in the political world. THE FEDERALIST. 121 The want of a mutual guaxaat^of^the State governments ^ is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws. Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may some- times threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may ere ct a tyrann y on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the govern- ment. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind, are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcon- tents had been headed by a Caesar or by a Cromwell ? Who can predict what effect a despotism, established in Massa- chusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York? The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an ofificious inter- ference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advan- tages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitu- tions by a majority of the people in a legal and peaceable 122 THE FEDERALIST. mode. This right would remain undiminished. The guar- anty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend ?ibsoluteIy on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretence for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and out- rages of faction and sedition in the community. The principle of regulating the contributions of the States to the common treasury by^QUOTAS is anether fundamental e rror in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accus- tomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively pro- posed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between severaJ THE FEDERALIST. I23 of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative pop- ulation. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we should take cither the total value of the lands or the total number of the people as a criterion ! The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the pro- ductions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, — these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly con- ceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no gen- eral or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression. This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was cal- culated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to 124 ^^^ FEDERALIST. sustain. This, however, is an evil inseparable from the principle of quotas and requisitions. There is no method of steering clear of this inconvenience, \ but by authorizing the national government to raise its own J revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fl^uid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal ; and private oppres- sion may always be avoided by a judicious selection of ob- jects proper for such impositions. If inequalities should arise in some States from duties "On particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised. It is a signal advantage of taxes on articles of consump- tion, that they contain in their own nature a security against excess. They prescribe their own limit ; which cannot be exceeded without defeating the end proposed, — that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, " in political arithmetic, two and two do not always make four." If duties are too high, they lessen the consumption ; the collection is eluded ; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power oi imposing them. Impositions of this kind usually fall under the denomina- THE FEDERALIST. 12$ tion of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populous- ness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land ; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended- with fewer inconveniences- than to leave that discretion altogether at large. PUBLIUS. From the New York Packet, Friday, December 14, 1787. THE FEDERALIST. No. XXII. (HAMILTON.) To the People of the State of New York : In addition to the defects already enumerated in the ex- isting federal system, there are others of not less importance, which concur in rendering it altogether unfit for the admin- istration of the affairs of the Union. The want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head., of our inguiries ; and for this reason, as well as frorh the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands 126 THE FEDERALIST. a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the na^ture of our political association would be unwise enough to enter into stipulations with the United States, by which they con- ceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary con- venience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Com- mons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.* Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to iniiuence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist. The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in dif- ferent instances, given just cause of umbrage and complaint to others, and'it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of * This, as nearly as I can recollect, was the sense of his speech on introdu- cing the last bill, — Publius. THE FEDERALIST. 12/ animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire* is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regu- lations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens. The power of raising armies, by the most obvious con- struction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice, in the course of the late war, was found replete with obstructions to a vigorous and to an economi- cal system of defence. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupport- able size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procras- tinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs ; short enlistments at an unparalleled expense ; continual fluctua- tions in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a dis- banded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practised, and which nothing but the enthusiasm of liberty would have induced the people to endure. This method of raising troops is not more unfriendly to * Encyclopedia, article "Empire." — PuBLIUS. 128 THE FEDERALIST. economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efTorts to furnish their quotas, which even exceeded their abilities ; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies ; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among themembers. The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Con- necticut, or New York ; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of repubhcan government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America * ; and two thirds of the people of * New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of the .States, but they do not contain one third of the people. — PuBLlus. THE FEDERALIST. 1 29 America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration. It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions ; and it may be thence inferred, that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness ; nor is the inference accurate in point of fact ; for we can enumerate nine States which contain less than a majority of the people * ; and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority ; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its opera- tion to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes. But this is not all : what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to * Add New York and Connecticut lo the foregoing seven, and they will be less than a majority. — Publius. 130 THE FEDERALIST. subject the sense of the greater number to that of the lesser. Congress, from the non-attendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of some- thing approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays ; continual negotiation and intrigue ; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation ; and then the measures of govern- ment must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy. It is not difficult to discover, that a principle of this kind THE FEDERALIST. I31 gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the^ sense of the majority to decide ; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because noth- ing improper will be likely to be done ; but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. Suppose, for instance, we were engaged in a war, in con- junction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the in- terest or ambition of our ally led him to seek the prosecu- tion of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and in- trigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our ex- ertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facil- ity prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves. Evils of this description ought not to be regarded as im- aginary. One of the weak sides of republics, among their 132 THE FEDERALIST. numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind. In republics, persons elevated from the mass of the com- munity, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican govern- ments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those depu- ties. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or op- position, became one of the most absolute and uncontrolled. A circumstance which crowns the defects of the Con- federation remains yet to be mentioned, — the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. THE FEDERALIST. 1 33 The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBU- NAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to estab- lish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradic- tions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws ; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those 134 THE FEDERALIST. legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government.'' Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation? In this review of the Confederation, I have confined myself to the exhibition of its most material defects ; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of precon- ceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters. The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head ; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandize- ment from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted ; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it ; or, by successive augmentations of its THE FEDERALIST. 1 35 force and energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert. It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratifica- tion to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of Amer- ican empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. PUBLIUS, From the New York Packet, Tuesday, December i8, 1787. THE FEDERALIST. No. XXIII. (HAMILTON.) To the People of the State of New York : The necessity of a Constitution, at least equally ener- getic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived. 136 THE FEDERALIST. This inquiry will naturally divide itself into three branches — the objects to be provided for^by-tke-federaLgovernment, the^quantity of power necessary to the_a.ccomplishrnent of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more prop- erly claim our attention under the succeeding head. The principal purposes to be answered by union are these — the common defence of the members ; the_preservation of the public peace, as well against internal convulsions as external attacks ; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign coun- tries. The authorities essential to the common defence are these: to raise armies ; to build and equip fleets ; to prescribe rules for the government of both ; to direct their opera- tions ; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define tlie -e^xtent and variety of national exigencies, or the correspondent extent and variety of the means ivhich may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances ; and ought to be under the direction of the same councils which are appointed to preside over the com- mon defence. This is one of those truths which, to a correct and un- prejudiced mind, carries its own evidence along with it ; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal ; the means ought to be proportioned to the £nd ; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. Whether there ought to be a federal government intrusted THE FEDERALIST. 1 37 with the care of the common defence, is a question in the first instance, open for discussion ; but the moment it is decided in the affirmative, it will follow, that that govern- ment ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits ; un- less the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community, in any matter essential to its efficacy — that is, in any matter essential to the formation, direction, or support of the NA- TIONAL FORCES. Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it ; though they have not made proper or adequate provision for its exercise. Congress have an un- limited discretion to make requisitions of men and money ; to govern the army and navy ; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obliga- tions to furnish the supplies required of them, the intention evidently was, that the United States should command whatever resources were by them judged requisite to the " common defence and general welfare." It was presumed that a sense of their true interests, and a regard to the dic- tates of good faith, would be found sufficient pledges for the punctual performance of the duty of thq members to the federal head. The experiment has, however, demonstrated that this ex- pectation was ill-founded and illusory ; and the observations, made under the last head, wih, I imagine, have sufficed to convince the impartial and discerning, that there is an abso- lute necessity for an entire change in the first principles of the system ; that if we are in earnest about giving the Union energy ^jTd_duration, we must abandon the vain 138 THE FEDERALIST. project of legislating upon the States in their collective capacities ; we must extend the laws of the federal govern- ment to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy- troops ; to build and equip fleets ; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practised in other governments. If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power ; allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose ? The government of the Union must be em- powered to pass all laws, and to make all regulations which have relation to them. The same must be the case in re- spect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration jof justice between the citizens of the same State the proper 'department of the local governments ? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a de- gree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and im- providently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success. Who so likely to make suitable provisions for the public defence, as that body to which the guardianship of the public safety is confided ; which, as the centre of informa- THE FEDERALIST. 1 39 tion, will best understand the extent and urgency of the dangers that threaten ; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part ; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions ; and which, by the exten- sion of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured ? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defence, and leaving in the State governments the effective powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system ? And will not weakness, disorder, an undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomi- tants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished ? Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people, to see that it be modelled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispas- sionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be con- fided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. 140 THE FEDERALIST. And the adversaries of the plan promulgated by the con- vention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory decla- mations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the manage- ment of our NATIONAL INTERESTS ; nor can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, with- out daring to trust it to the authorities which are indispen- sable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative. I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency ; and I flatter myself, that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government ; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the THE FEDERALIST. I4I standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy. PUBLIUS. For the Independent yournal. THE FEDERALIST. No. XXIV. (HAMILTON.) To the People of the State of New York : To the powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, — that proper provision has not been made against the existence of standing armies in time of peace ; an objection which, I shall now endeavor to show, rests on weak and unsubstan- tial foundations. It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument ; without even the sanction of theoretical opinions ; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitu- tions. The propriety of this remark will appear, the moment it is recollected that the objection under considera- tion turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments ; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest. A stranger to our politics, who was to read our news- papers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions : either that it contained a positive injunction, that standing armies should be kept up in time of peace ; or that it vested 142 THE FEDERALIST. in the executive the whole power of levying troops, without subjecting his discretion, in any shape, to the con- trol of the legislature. If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case ; that the whole power of raising armies was lodged in the Legislature, not in the Execittive ; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected ; and that instead of the provision he had supposed in favor of stand- ing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years — a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity. Disappointed in his first surmise, the person I have sup- posed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jeal- ous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehen- sion and clamor. If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his dis- appointment to find that two only of them * contained an * This statement of the matter is taken from the printed collection of State constitutions. Pennsylvania and North Carolina are the two which contain the interdiction in these words : " As standing armies in time of peace are dangerous to liberty, they ought not to be kept up. '' This is, in truth, rather a CAUtlON than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland have, in each of their bills of rights, a clause to this effect : " Standing armies are dangerous to liberty, and ought not to be raised or kept up without the con- sent OF THE Legislature " ; which is a formal admission of the authority of ihe THE FEDERALIST. 143 interdiction of standing armies in time of peace ; that the other eleven had either observed a profound silence on the subject, or had in express terms admittted the right of the Legislature to authorize their existence. Still, however, he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of in- formation remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace ; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions. If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprin- cipled opposition to a plan which ought at least to receive Legislature. New York has no bills of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other States, except the foregoing, and their constitutions are equally silent. I am told, however, that one or two States have bills of rights which do not appear in this collection ; but that those also recognize the right of the legislative authority in this respect. — PuBUUs. 144 THE FEDERALIST. a fair and candid examination from all sincere lovers of their country ! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its dif- ferent forms of government, and in which it has even super- added a new and powerful guard unknown to any of them ? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by ex- pedients so unfriendly to an impartial aijd right determina- tion. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their pas- sions, rather than to convince them by arguments addressed to their understandings. But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close exami- nation it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed. Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belong- ing to these two powers, create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, THE FEDERALIST. 145 because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These cir- cumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger. Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garri- sons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detach- ments from the militia, or by permanent corps in the pay of the government. The first is impracticable ; and if practica- ble, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and fami- lies to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rota- tion of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclu- sive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace ; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature. 146 TJIE FEDERALIST. In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenceless condition, to their insults and encroachments, we should find it expedient to increase our frontier garri- sons in some ratio to the force by which our Western settle- ments might be annoyed. There are, and will be, particu- lar posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situa- tion to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy. If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals ; and for the defence of these, forti- fications, and probably garrisons. When a nation has be- come so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose ; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruc- tion of the arsenals and dock-yards, and sometimes of the fleet itself. PUBLIUS. From the New York Packet, Friday, December 21, 1787. THE FEDERALIST. No. XXV. (HAMILTON.) To the People of the State of New York : It may perhaps be urged that the objects enumerated in the preceding number ought to be provided for by the State governments, under the direction of the Union. But this would be, in reality, an inversion of the primary principle of THE FEDERALIST. 147 our political association, as it would in practice transfer the care of the common defence from the federal head to the individual members : a project oppressive to some States, dangerous to all, and baneful to the Confederacy. The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular States, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of common councils and of a common treasury. It happens that some States, from local situation, are more directly exposed. New York is of this class. Upon the plan of separate provisions. New York would have to sus- tain the whole weight of the establishments requisite to her immediate safety, and to the mediate or ultimate protection of her neighbors. This would neither be equitable as it re- spected New York nor safe as it respected the other States. Various inconveniences would attend such a system. The States, to whose lot it might fall to support the necessary establishments, would be as little able as willing, for a con- siderable time to come, to bear the burden of competent provisions. The security of all would thus be subjected to the parsimony, improvidence, or inability of a part. If the resources of such part becoming more abundant and exten- sive, its provisions should be proportionally enlarged, the other States would quickly take the alarm at seeing the whole military force of the Union in the hands of two or three of its members, and those probably amongst the most powerful. They would each choose to have some counter- poise, and pretences could easily be contrived. In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size ; and being at the separate disposal of the mem- bers, they would be engines for the abridgment or demoli- tion of the national authority. Reasons have been already given to induce a supposition that the State governments will too naturally be prone to a 148 THE FEDERALIST. rivalship with that of the Union, the foundation of which will be the love of power ; and that in any contest between the federal head and one of its members the people will be most apt to unite with their local government. If, in addi- tion to this immense advantage, the ambition of the' mem- bers should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enter- prises upon, and finally to subvert, the constitutional authority of the Union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion. The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, pro- hibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions. There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend : whether to raising armies as well as to keeping them up in a season of tranquillity or not. If it be THE FEDERALIST. 1 49 confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated "keeping them up," contrary to the sense of the Constitution ? What time shall be requisite to ascertain the violation ? Shall it be a week, a month, a year ? Or shall we say they maybe con- tinued as long as the danger which occasioned their being raised continues ? This would be to admit that they might be kept up ?'«/'?;««' (?/"/i'iar'. PUBLius. From the Daily Advertiser, January. 3, 1788. THE FEDERALIST. No. XXXIII. (HAMILTON.) To the People of the State of New York : The residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause.* The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature " to make all laws which shall be * This was the point at which No. XXXI. of the original newspaper essays was divided, and this opening sentence appeared first in the McLean edition of 17SS. I go THE FEDERALIST. tiecessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or ofificer thereof"; and the second clause of the sixth article declares, " that the Constitution and the laws of "the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the perni- cious engines by which their local governments were to be destroyed and their liberties exterminated ; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane ; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended goverment would be precisely the same, if these clauses were entirely obliter- ated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with cer- tain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity. What is a power, but the abihty or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution ? What is a LEGISLATIVE power, but a power of making LAWS ? What are the means to execute a LEGISLATIVE power, but LAWS? What is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and THE FEDERALIST. I9I collect taxes? What are the proper means of executing such a power, but necessary and proper laws ? This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power ; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect ? I have applied these observa- tions thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass 2\\ necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless. But SUSPICION may ask. Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Conven- tion probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threat- ens our political welfare is that the State governments will finally sap the foundations of the Union ; and might there- fore think it necessary, in so cardinal a point, to leave noth- ing to construction. Whatever may have been the induce- 192 THE FEDERALIST. ment to it, the wisdom of the precaution is evident from the cry which has been raised against it ; as that very cry be- trays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare. But it may be again asked, Who is to judge of the neces- sity ^x^A propriety of the laws to be passed for executing the powers of the Union ? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause ; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exer cise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the peo- ple, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the pow- ers upon which it is founded. Suppose, by some forced con- structions of its authority (which, indeed, cannot easily be imagined), the .Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretence of an interference with its revenues, it should undertake to abrogate a land-tax imposed by the au- thority of a State ; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animos- ity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths. But it is said that the laws of the Union are to be the THE FEDERALIST. 1 93 supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to noth- ing. A LAW, by the very meaning of the term, includes su- premacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would other- wise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the in- stitution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this su- premacy to laws Tn3.dc pursuant to the Constitution ; which I mention merely as an instance of caution in the convention ; since that limitation would have been to be understood, though it had not been expressed. Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogat- ing or preventing the collection of a tax laid by the authority of the State (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power 194 THE FEDERALIST. not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an indepen- dent ar3d uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDIC- TION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union. PUBLIUS. From the New York Packet. Friday, January 4, 1788. THE FEDERALIST. No. XXXIV. (HAMILTON.) To the People of the State of New York : I flatter myself it has been clearly shown in my last num- ber that the particular States, under the proposed Constitu- tion, would have COEQUAL authority with the Union in the article of revenue, except as to duties on imports. As this leaves open to the States far the greatest part of the resources of the community, there can be no color for the assertion that they would not possess means as abundant as could be desired for the supply of their own wants, indepen- dent of all external control. That the field is sufficiently wide will more fully appear when we come to advert to the inconsiderable share of the public expenses for which it will fall to the lot of the State governments to provide. THE FEDERALIST. \ IQS To argue upon abstract principles that this coordinate authority cannot exist, is to set up supposition and theory against fact and reality. However proper such reasonings might be to show that a thing ouglit not to exist, they are wholly to be rejected when they are made use of to prove that it does not exist contrary to the evidence of the fact itself. It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies — not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest pre- vailed : in one the patrician ; in the other, the plebeian. Many arguments might have been adduced to prove the un- fitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their- existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed,-the plebeian interest had an entire predominancy. And yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness. In the case particularly under consideration, there is no such contradiction as appears in the example cited ; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconven- ience ; because, in a short course of time, the wants of the States will naturally reduce themselves within a very narrow compass ; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort. To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion be- 196 THE FEDERALIST. tween the objects that will require a federal provision in respect to revenue, and those which will require a State pro- vision. We shall discover that the former are altogether un- limited, and that the latter are circumscribed within very- moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitu- tions of civil government are not to be framed upon a calcu- lation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, there- fore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen ; and as these are illimitable in their na- ture, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly, to stop at this point, and to leave the government in- trusted with the care of the national defence in a state of absolute incapacity to provide for the protection of the com- munity against future invasions of the pubhc peace, by for- eign war or domestic convulsions ? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable dura- tion of the worid. Observations confined to the mere pros- THE FEDERALIST. IQ/ pects of internal attacks can deserve no weight ; though even these will admit of no satisfactory calculation : but if we mean to be a commercial people, it must form a part of our pohcy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contin- gencies that must baffle all the efforts of political arithmetic. Admitting that we ought to try the novel and absurd ex- periment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materi- als that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other cause or from some other quarter? Let us recollect that peace or war will not always be left to our option ; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the con- clusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace ; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character. What are the chief sources of expense in every govern- ment ? What has occasioned that enormous accumulation of debts with which several of the European nations arc 198 THE FEDERALIST. oppressed? The answers plainly is, wars and rebellions ; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial depart- ments, with their different appendages, and to the encour- agement of agriculture and manufactures (which will com- prehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defence. In the kingdom of Great Britain, where all the ostenta- tious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appro- priated to the class of expenses last mentioned ; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the mainten- ance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good. But let us advert to the large debt which we have ourselves contracted in a single war, and let us only cal- culate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal THE FEDERALIST. I99 and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted ; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil lists ; to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds. In framing a government for posterity as well as our- selves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on per- manent causes of expense. If this principle be a just one, our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds ; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds ? To extend its power further, in exclusion of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them. Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too little — too little for their present, too much for their future wants ? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray 200 THE FEDERALIST. from a tenth to a twentieth part of its expenses ; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its ex- penses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the memis and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose. The preceding train of observation will justify the position which has been elsewhere laid down, that " A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union." Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the con- current jurisdiction preferable to that subordination ; and it is evident that it has at least the merit of reconciling an in- definite constitutional power of taxation in the Federal gov- ernment with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration. PUBLIUS-. For the Independent youmal. THE FEDERALIST. No. XXXV. (HAMILTON.) To the People of the State of New York : Before we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark ; which is, that if the jurisdiction of the THE FEDERALIST. 201 national government, in the article of revenue, should be restricted to particular objects, it Avould naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source : the oppression of particular branches of industry ; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State. Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evi- dent that the government, for want of being able to com- mand other resources, would frequently be tempted to ex- tend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length ; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote do- mestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling ; which is always prejudicial to the fair trader, and eventually to the revenue itself : they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets : they sometimes force industry out of its more natural channels into others in which it flows with less ad- vantage ; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty ; but when the markets happen to be over- stocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially 202 THE FEDERALIS'r. in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more ex- peditious sale. The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States ; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufactur- ing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent,* a. manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts. So far as these observations tend to inculcate a danger of * In the reviaed text,'' and from a greater disproportion between her popula- tion and territory is unlikely speedily to be, to any great extent." THE FEDERALIST. 203 the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in an- other part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme, r readily admit that this would be the case, as long as other resources were open ; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experi- ments, fortified by rigorous precautions and additional pen- alties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of sub- sequent experience to correct. Necessity, especially in pol- itics, often occasions false hopes, false reasonings, and a sys- tem of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections. One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the recep- tion of all the different classes of citizens, in order to com- bine the interests and feelings of every part of the commu- nity, and to produce a due sympathy between the represen- tative body and its constituents. This argument presents itself under a very specious and seducing form ; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with atten- tion, it will appear to be made up of nothing but fair-sound- ing words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discus- sion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has 204 THE FEDERALIST. been made of a contrary supposition, in reference to the im- mediate subject of our inquiries. The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few excep- tions, to give their votes to merchants, in preference to per- sons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufactur- ing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately con- nected with the operations of comm.erce. They know that the merchant is their natural patron and friend ; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by them- selves. They are sensible that their habits in life have not been such as to give them those acquired endowments, with- out which, in a deliberative assembly, the greatest natural abilities are for the most part useless ; and that the influ- ence and weight, and superior acquirements of the mer- chants render them more equal to a contest with any spirit which might happen to infuse itself into the public coun- cils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be men- tioned, prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural repre- sentatives of all these classes of the community. With regard to the learned professions, little need be ob- served ; they truly form no distinct interest in society, and according to their situation and talents, will be indiscrimi- nately the objects of the confidence and choice of each other, and of other parts of the community. THE FEDERALIST. 205 Nothing remains but the landed interest ; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible ; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last 1 If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both ; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence ; whether these happen to be men of large fortunes, or of moderate property, or of no property at all. It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the repre- sentative body, with too few exceptions to have any influ- ence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or at- tended to by these three descriptions of men ? Will not the landholder know and feel whatever will promote or in- sure th.e interest of landed property ? And will he not, from 206 THE FEDERALIST. his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it ? Will not the merchant understand and be disposed to culti- vate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied ? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the so- ciety ? If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neigh- bors and acquaintances ? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the con- tinuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent. There is no part of the administration of government that requires extensive information and a thorough knowl- edge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or to sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be THE FEDERALIST. 20/ the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it is should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found. PUBLIUS. From the New York Packet, Tuesday, January 8, 1788. THE FEDERALIST. No. XXXVI. (HAMILTON.) To the People of the State of New York : We have seen that the result of the observations, to which the foregoing number has been principally devoted, is, that from the natural operation of the different interests and views of the various classes of the community, whether the representation of the people be more or less numerous, it will consist almost entirely of proprietors of land, of mer- chants, and of members of the learned professions, who will truly represent all those different interests and views. If it should be objected that we have seen other descriptions of men in the local legislatures, I answer that it is admitted there are exceptions to the rule, but not in sufficient num- ber to influence the general complexion or character of the government. There are strong minds in every walk of life that will rise superior to the disadvantages of situation, and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all ; and I trust, for the credit of human nature, that we shall see examples of such vigorous plants flourishing in the soil of federal as well as of State legislation ; but occasional 208 THE FEDERALIST. instances of this sort will not render the reasoning, founded upon the general course of things, less conclusive. The subject might be placed in several other lights that would all lead to the same result ; and in particular it might be asked, What greater affinity or relation of interest can be conceived between the carpenter and blacksmith, and the linen manufacturer or stocking-weaver, than between the merchant and either of them ? It is notorious that there are often as great rivalships between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry; so that, unless the rep- resentative body were to be far more numerous than would be consistent with any idea of regularity or wisdom in its de- liberations, it is impossible that what seems to be the spirit of the objection we have been considering should ever be realized in practice. But I forbear to dwell any longer on a matter which has hitherto worn too loose a garb to admit even of an accurate inspection of its real shape or tendency. There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantage, as well from the want of a sufificient knowledge of local circumstances, as from an in- terference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired ? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representa- tives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information ? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and by- THE FEDERALIST. 209 paths in each State ; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry? Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few indi- viduals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature. Inquisitive and enlightened statesmen are deemed every- where best qualified to make a judicious selection of the ob- jects proper for revenue ; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation. The taxes intended to be comprised under the general denomination of internal taxes maybe subdivided into those of the direct and those of the indirect kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, aSto the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difificulties apprehended. The knowl- edge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may dis- tinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State ; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States. 2IO THE FEDERALIST. The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land-taxes are commonly laid in one of two modes, either hy actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judg- ment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the govern- ment for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their elec- tion or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature ? The at- tention of either can only reach to general principles ; local details, as already observed, must be referred to those who are to execute the plan. But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the syst/rtn of each State within that Stafc. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government. Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as de- scribed in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a pro- vision that " all duties, imposts, and excises shall be UNIFORM throughout the United States." THE FEDERALIST. 211 It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exer- cise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the lat- ter resource ? Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual ; and it is im- possible to prove in theory, or otherwise than by the ex- periment, that it cannot be advantageously exercised. The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efificacy to requisitions. When the States know that the Union can apply itself with- out their agency, it will be a powerful motive for exertion on their part. As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other ; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually to abstain from those objects which either side may have first had recourse to. As neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an immediate common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibihty almost of interference will vanish. A small land-tax will answer the purpose of the States, and will be their most simple and most fit resource. Many spectres have been raised out of this power of 212 THE pEDEKALIST. internal taxation, to excite the apprehensions of the people : double sets of revenue ofificers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain. As to the first point, there are two cases in which there can be no room for double sets of officers : one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports ; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccu- pied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience ; and nothing more can be required than to show that evils predicted do not necessarily result from the pla'n. As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed ; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accom- plishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all supposi- tions of this kind are invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth. THE FEDERALIST. 21 3 As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another ; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the com- munity must be the same in either case ; with this advan- tage, if the provision is to be made by the Union — that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods ; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means ; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preser- vation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression ! As to poll-taxes, I, without scruple, confess my disappro- bation of them ; and though they have prevailed from an early period in those States * which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national govern- ment. But does it follow because there is a power to lay them, that they will actually be laid ? Every State in the Union has power to impose taxes of this kind ; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power ? If they are not, with what pro- * The New England Stales. — PuBLius. 214 ^^^ FEDERALIST. priety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption ? As little friendly as I am to the species of im- position, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal govern- ment. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll-tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defence and security. I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government ; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy. The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries I'pon which we shall next enter. PUBLIUS. THE FEDERALIST. 215 From the Daily Advertiser, Friday, January II, 17S8. THE FEDERALIST. No. XXXVII. (MADISON.) To the People of the State of New York : In reviewing the defects of the existing Confederation, and showing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this Constitu- tion, and the expediency of adopting it, our plan cannot be complete without taking a more critical and thorough sur- vey of the work of the convention, without examining it on all its sides, comparing it in all its parts, and calculat- ing its probable effects. That this remaining task may be executed under impres- sions conducive to a just and fair result, some reflections must in this place be indulged, which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good ; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite disposi- "tions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn ; as the language held by others betrays an oppo- 2l6 THE FEDERALIST. site predetermination or bias, which must render their opin- ions also of little moment in the question. In placing, how- ever, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter description, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined ad versary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first maybe upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to per- sons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magjnify faults ; but will see the propriety of reflecting, that a 'faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable ; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opin- ions of others. With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difificulties inherent in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the THE FEDERALIST. 21/ existing Confederation is founded on principles which are t^allacious ; that we must consequently change this first foun- dation, and with it the^superstructurej-esting. upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by tl)e same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past ex- perience of other countries, as well as of our own ; and to provide a convenient mode of rectifying their own errors, as future experience may unfold them. ^v,^^ Among the difficulties encountered by the convention, a very important one must have lain in combining the req- ^^ uisite stability and energy in government, with the in- violable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public ; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that*^ security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and con- fidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people ; and it may be pronounced with assurance that the people of this country, enlightened as they are with re- gard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterize the State administrations. 2l8 ■ THE FEDERALIST. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due propor- tions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments ; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections ; and a frequent change of measures from a frequent change of men : whilst energy in govern- ment requires not only a certain duration of power, but the execution of it by a single hand. How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly ap- pear to have been an arduous part. Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects ex- tensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and de- fined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, percep- tion, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of in- genious disquisition and controversy. The boundaries be- tween the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same im- THE FEDERALIST. 2ig portant truth. The most sagacious and laborious natural- ists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. A still greater obscurity lies in the dis- tinctive characters by which the objects in each of these great departments of nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be other- wise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces — the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislators and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdic- tion of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate 220 THE FEDERALIST. limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of partic- ular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the con- ceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Per- spicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccu- rate by the_ inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to ad- dress mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated. Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the V full effect of them all. .y^^'—To the difficulties already mentioned may be added the ' Ainterferirig' pretensions of the larger and smaller States. We cannqt^rr in supposing that the former would contend for a^p^rticipation in the government, fully proportioned to their THE FEDERALIST. 221 superior wealth and importance ; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would en- tirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is e-xtremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the great- est share of influence. There are features in the Constitu- tion which warrant each of these suppositions ; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations. Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created, additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which pro- duce a like effect on a larger scale. And although this vari- ety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sen- sible of the contrary influence, which must have been ex- perienced in the task of forming it. / Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination ? The real wonder is that so 222 THE FEDERALIST. many difficulties should have been surmounted, and sur- mounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to '-^ our relief in the critical stages of the revolution. We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a his- tory of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human char- acter. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth ; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In ■"""^revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, / that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities — the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations compos-y"/ ing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep convic- tion of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new V experiments. PUBLIUS. THE FEDERALIST. 223 From ilte New YorJb Faciei, Tuesday, yanuary 15, 1788. THE FEDERALIST. No. XXXVIII. (madison.) To the People of the State of New York : It is not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of pre-eminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the govern- ment of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa andTuIlius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Am- phictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the peo- ple, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modelling the 224 '^^^ FEDERALIST. constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a delib- erative body of citizens. Whence could it have proceeded that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen ? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illus- trious merit of a fellow-citizen, should consider one illustri- ous citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected ? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of 'preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident THE FEDERALIST. 22$ to such experiments, and of the great imprudence of un- necessarily multiplying them. It is an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent expe- rience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it ; and, consequently, such as will not be ascertained until an actual trial shall have pointed them out ? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratifica- tion, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to 'suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexi- bility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful senti- ment of self-preservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts. A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the 226 THE FEDERALIST. characters of different physicians, selects and calls in such, of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend ; the case of the patient is carefully examined ; a consultation is held ; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted ? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unani- mously recommended by the latter, rather than be hearken- ing to those who could neither deny the necessity of a ' speedy remedy, nor agree in proposing one ? Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal conse- quences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy ? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted ? Let them speak for themselves. This one tells us that the proposed Constitu- tion ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to THE FEDERALIST. 22/ a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be super- fluous and misplaced, and that the plan would be unexcep- tionable but for the fatal power of regulating the times and places of election. An objector in a large State exclairns loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Repre- sentatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician dis- covers in the Constitution a direct and irresistible tendency to monarchy ; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them ; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and. firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are inter- 228 THE FEDERALIST. mixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particu- lar explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to ofiSces, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against cor- ruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which must ever be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. " We concur fully," reply others, " in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department." Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appoint- ment should be made by the President himself. As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are THE FEDERALIST. 229 the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention ; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just ex- hibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations ; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect : it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, be- cause the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceihng a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation ? Is an indefinite power to raise 230 THE FEDERALIST. money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to fur- nish them ; they can emit bills of credit as long as they will pay for the paper ; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous ? The Confederation gives to Con- gress that power also ; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men ? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands ? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty ? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land ? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years ? By the old it is permitted forever. I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the de- pendence of Congress on the State for the means of carrying them into practice ; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal gov- ernment to be absolutely necessary, and at the same time rendering them absolutely nugatory ; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress ; in either of which events, the contrast just stated will hold good. But this is THE FEDERALIST. 231 not all. Out of this lifeless mass has already grown an ex- crescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States ; and although it is not of such a nature as to extricate them from their present distresses, or, for some time to come, to yield any regular supplies for the public expenses, yet must it here- after be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surren- dered by individual States ; and it may with reason be ' expected that the remaining States will not persist in with- holding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more : they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done ; and done without the least color of constitutional authority. Yet no blame has been whispered ; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an IN- DEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which ex- hibits it ; and, at the same time, urge against the new sys- tem the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against 232 THE FEDERALIST. the future powers and resources of a body constructed like the existing Congress, than to save- it from the dangers threatened by the present impotency of that Assembly ? I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers com- mensurate to its objects ? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed. PUBLIUS. / For the Independent yournal. THE FEDERALIST. No. XXXIX. (MADISON.) To the People of the State of New York : The last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America ; with the fundamental principles of the Revolution ; or with that honorable de- termination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, there- fore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. What, then, are the distinctive characters of the republican form ? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitutions of different States, THE FEDERALIST. 233 no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomina- tion of a republic. The sartle title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the hst of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions. If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirec tly, from tHe great body of the people, and is ad- ministered by persons holding^ their offices during pleasure^ f or a limited period, or during good beh a vior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable porportion, or a favored class of it ; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is su;^cient for such a government that the persons administering it be appointed, either directly ol" indirectly, by the people ; and that they hold thdr appointments by either of the tenures just specified ; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of 234 ^-^^^ FEDERALIST. the officers of government are appointed indirectly only by the people. According to most of them, the chief magis- trate himself is so appointed. And according to one, this mode of appointment is extended to one of the coordinate branches of the legislature. According to all the constitu- tions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judi- ciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention- with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House »f Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived fr®m the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves. The duration of the appointments is equally confermable to the republican standard, and to the model oT State constitutions. The House of Representatives is periodically elective, as in all the States ; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years ; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years ; as in New York and Delaware the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, how THE FEDERALIST. 235 ever, no constitutional provision is made for the impeach- ment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, con- formably to the reason of the case and the example of the State constitutions. Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments ; and in its express guaranty of the republican form to each of the latter. i " But it was not sufficient," say the adversaries of the proposed Constitution, " for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states ; instead of which, they have framed a ?iational government, which regards the Union as a consolidation of the States." And it is asked by what authority this bold and radical innovation was under- taken ? The handle which has been made of this objection requires that it should be examined with some precision. Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, t o ascertain the real charac - ter of the government in question ; second ly, to inquire how far the convention were autl ;ioif,i7.ed f-p pfp pos? ?'j^^ a gover'nment ; and .thirdly, hawJar,,the_dutj£,jyieji_,,flHia^ their country could_sui3ply any defect of regula r authority . Pi^^ — ^In order to ascertain the real character of the government, it may be considered in relation to the founda- tion on which it is to be established ; to the sources from which its ordinary powers are to be drawn ; to the operation 236 THE FEDERALIST. of those powers ; to the extent of them ; and to the authority by which future changes in the g-overnment are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and rati- fication of the people of America, given by deputies elected for the special purpose ; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, — the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but Si federal act. That it will be a federal and not a national act, as these terms are understood by the objectors ; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the Mnll of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority ; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, THE FEDERALIST. 237 the new Constitution will, if established, be & federal, and not a national constitution. The next rglatiilU—is, to the sources from which the ordi- nary powers of government are to be derived. The House of Representatives will derive its powers from the people of America ; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies ; and these will be represented on the principle of equality in the Senate, as they now are in the existing Con- gress. So far the government is />^fra/, not «rt/2'(7«a/. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them parti)' as distinct and coequal societies, partly as un- equal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representative^;*but in this particu- lar act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies poli- tic. From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features. The difference between a federal and national government, as it relates to the operation of the^ gqvertiment, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities ; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the national, not the federal character ; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed ^and proceeded against in 238 THE FEDERALIST. their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan ; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government. But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite su- premacy over all persons and things, so far as they are ob- jects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for par- ticular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one ; since its jurisdiction ex- tends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution ; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under THE FEDERALIST. 239 the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation to the au- thority by which amendments are to be made, we find it neither wholly national nor w\\d\XY federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union ; and this author- ity would be competent at all times, hke that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essen- tial to every, alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a ma- jority, and particularly in computing the proportion by States, not by citizens, it departs from the national and ad- vances towards the federal character ; in rendering the con- currence of less than the whole number of States sufficient, it loses again th.e federal and partakes of the national character. The proposed Constitution, therefore, is, in strictness,' neither a national nor a federal Constitution, but a composi- tion of both. In its foundation it is federal, not national ; in the sources from which the ordinary powers of the gov- ernment are drawn, it is partly federal and partly national ; in the operation of these powers, it is national, not federal ; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amend- ments, it is neither wholly federal nor wholly national. PUBLIUS. From the New York Packet, Friday, January :8, 1788. THE FEDERALIST. No. XL. (MADISON.) To the People of the State of Neiv York : The second point to be examined is, whether the conven- tion were authorized to frame and propose this mixed Con- stitution. 240 THE FEDERALIST. The powers of the convention ought, in strictness, to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these, however, had reference, either to the recommendation from the meeting at Annapolis, in September, 1786, or to that from Congress, in February, 1787, it will be sufficient to recur to these particular acts. The act from Annapolis recommends the " appointment of commissioners to take into consideration the situation of the United States ; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same." The recommendatory act of Congress is in the words fol- lowing ; " Whereas, there is provision in the articles of Con- federation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States ; and whereas experience hath evinced, that there are defects in the present Confederation ; as a mean to remedy which, several of the States, and particularly the State of Neiv York, by express , instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following reso- lution ; and such convention appearing to be the most piobable mean of establishing in these States a firm national government : " Resolved, — That in the opinion of Congress it is ex- pedient, that on the second Monday of May next a conven- tion of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the articles of Confederation, and reporting to Congress and the several legislatures such altera- tions and provisions therein, as shall, when agreed to in Con- gress, and confirmed by the States, render the federal Con- THE FEDERALIST. 241 stitution adequate to the exigencies of government and the preservation of the Union." From thesfe two acts, it appears, 1st, that the object of the convention was to establish, in these States, a firm natio7ial government ; 2d, that this government was to be such as would be adequate to the exigencies of government and the preservation of the Union ; 3d, that these purposes were to be effected by alterations and provisions in the articles of Confederation, as it is expressed in the act of Congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from Annapolis ; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter. From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a national government, adequate to the exigencies of government, and of the Union ; and to reduce the articles of Confederation into such form as to accomplish these purposes. There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to aome common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part ; the means should be sacrificed to the end, rather than the end to the means. Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other ; that a national and adequate government could not possibly, in the judgment of the convention, be effected by alterations and provisions in the articles of Confederation ; which part of the definition ought to have been embraced, and which rejected ? Which was the more important, which the less important part ? Which the end ; which the means ? Let the most scrupulous expositors of delegated powers ; let. 242 THE FEDERALIST. the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved ; or that an adequate government should be omitted, and the articles of Confederation pre- served. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the gov- ernment was to be introduced as the means ; or whether the establishment of a government, adequate to the national happiness, was the end at which, these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed. But is it necessary to suppose that these expressions are absolutely irreconcilable to each other ; that no allerations or provisions in the articles of the Confederation could possi- bly mould them into a national and adequate government ; into such a government as has been proposed by the con- vention ? No stress, it is presumed, will, in this case, be laid on the title ; a change of that could never be deemed an exercise of ungranted power. Alterations in the body of the instrument are expressly authorized. Nciv provisions therein are also expressly authorized. Here then is a power to change the title ; to insert new articles ; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain ? Those who maintain the affirmative ought at least to mark the boundary between authorized and usurped innovations ; between that degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmuta- tion of the government. Will it be said that the alterations ought not to have touched the substance of the Confedera- tion ? The States would never have appointed a conven- tion with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been in THE FEDERALIST. 243 contemplation. Will it be said that the fundamental prin- ciples of the Confederation were not within the purview of the convention, and ought not to have been varied ? I ask, What are these principles ? Do they require that, in the establishment of the Constitution, the States should be re- garded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their ap- pointment from the legislatures, not from the people of the States? One branch of the new government is to be ap- pointed by these legislatures ; and under the Confederation, the delegates to Congress may all be appointed immediately by the people, and in two States* are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective char- acters. In some instances, also, those of the existing gov- ernment act immediately on individuals. In cases of cap- ture ; of piracy ; of the post-office ; of coins, weights, and measures ; of trade with the Indians ; of claims under grants of land by different States ; and, above all, in the case of trials by courts-martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate ; — in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States ? The Con- federation itself authorizes a direct tax, to a certain extent, on the post-office. The power of coinage has been so con- strued by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the uni- versal expectation of the people, that the regulation of trade should be submitted to the general government in such a * Connecticut and Rhode Island. — Pcjblius. 244 ^^-^ FEDERALIST. form as would render it an immediate source of general revenue? Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation ? Had not every State but one ; had not New York herself, so far complied with the plan of Con- gress as to recognize the principle of the innovation ? Do these principles, in fine, require that the powers of the gen- eral government should be limited, and that, beyond this limit, the States should be left in possession of their sover- eignty and independence? We have seen that in the new government, as in the old, the general powers are limited ; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is, that the great principles of the Constitution proposed by the convention may be considered less as abso- lutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of ineffi- ciency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the con^vixiz.Wor^. of the legislatjires of all the States, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine States only. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention. The forbearance can only have proceeded from an irresisti- ble conviction of the absurdity of subjecting the fate of twelve States to the perverseness' or corruption of a thir- teenth ; from the example of inflexible opposition given by a majority of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people — an ex- THE FEDERALIST. 245 ample still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who have criticised the powers of the convention, I dismiss it without further observation. The third point to be inquired into is, how far considera- tions of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment- of a'Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were, merely advisory and recommendatory ; that they were so meant by the States, and so understood by the convention ; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view altogether different, and will enable us to judge with propriety of the course taken by the convention. Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis, which had led their country almost with one voice to -make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced ; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely neces- sary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every 246 THE FEDERALIST. external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the liberty assumed by a very few deputies from a very few States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recom- mendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be gov- erned. They must have reflected, that in all great changes of established governments, forms ought to give way to substance ; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to "abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,"* since it is impossible for the people spontaneously and universally to move in concert towards their object ; and it is therefore essential that such changes be instituted by some informal and unautJwrised propositions, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government ; that commit- tees and congresses were formed for concentrating their efforts and defending their rights ; and that conventions were elected in the several States for establishing the constitutions under which they are now governed ; nor could it have been forgotten that no little ill-timed scruples, no zeal for adher- * Declaration of Independence. ^Publius. THE FEDERALIST. 247 ing to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people tJiemselvcs, the disapproba- tion of this supreme authority would destroy it forever ; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposi- tion to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommenda- tion of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies. Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of commit- ing the dearest interests of their country to the uncertain- ties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? Or if there be a man whose propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who usurped the power of sending deputies to the convention, a body utterly unknown to their consti- tutions ; for Congress, who recommended the appointment of this body, equally unknown tO| the Confederation ; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition ? But that the objectors may be disarmed of every pretext, 248 THE FEDERALIST. it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by cir- cumstances in proposing a Constitution for their country : does it follow that the Constitution ought, for that reason alone, to be rejected ? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is oiTered by our friends ? The prudent in- quiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good. The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it ; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assumed ; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investiga- tion. PUBLIUS. For the Independent youmal. j '■ THE FEDERALIST. No. XLI. (MADISON.) To the Ptople of the State of New York : The Constitution proposed by the convention may be ^ considered under two general points of view. The FIRST relates 'to the sum or quantity of power which it vests ^- in- the government, including the restraints imposed on the States. The second, to the particular structure of the government, and the distribution of this power among its several branches. Under the frst view of the subject, two important THEm££D # ral g^^rn DERALIST. 249 questions arise : i. vjj^^^^r any part of the powers trans- ferred to the general ^^^ernment be unnecessary or im- proper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States ? Is the aggregate power of the general government greater than ought to have been vested in it ? This is the first question. It cannot have escaped those who- have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be un- avoidably blended with all political advantages ; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer ; it may open a boundless field for rhetoric and declamation ; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking : but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them ; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good ; and that in every political institution, a power to advance the public happiness involves a discretion which may be mis- applied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessar Y_to t he public good ; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the powef to the public detriment. That we may form a correct judgment on this subject, it will be proper to, review the several powers conferred on the government' of the Union; and that this may be the more conveniently done they may be reduced into different 250 THE FED ERA classes as they relate to the foqj^^HKifferent objects : i. Security against foreign danger^|P^egulation of the inter- course with foreign nations ; 3. Maintenance of harmony and proper intercourse among the States ; 4. Certain mis- cellaneous objects of general utility; 5. Restraint of the States from certain injurious acts ; 6. Provisions for giving due efficacy to all these powers. The powers falling within the first class are those of de- claring war and granting letters of marque ; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security agaist foreign danger is one of the primitive ob- jects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be super- fluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets neces- sary ? This is involved in the foregoing power. It is in- volved in the power of self-defence. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets ; and of main- taining both in PEACE, as well as in war ? The answer to these questions has been too far antici- pated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so ob- vious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence ? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discre- tion of its own government, and set bounds to the exertions for its own safety. THE FEDERALIST. 2i,l How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation ? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever deter- mined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain ; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enter- prises to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations, and rendered her the mistress of the world. Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs ; and that the lib- erties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations ; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in dimin- ishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties. 252 THE FEDERALIST. The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establish- ment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for com- bat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neigh- bors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an exten- sive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be for- gotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advan- tage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of dis- united America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, THE FEDERALIST. 253 and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it. Next to the eff ectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Consti- tution has prudently added. I will not repeat here the observations which I flatter myself have placed this sub- ject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continu- ance of an army in that kingdom requires an annual vote of the legislature ; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year ? Does the American impose on the Congress appropriations for two years ? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term. Had the argument from the British example been truly stated, it would have stood thus : The term for which supplies may be appropriated to the army establishment, 254 ^-^^ FEDERALIST. though unlimited by the British Constitution, has neverthe- less, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of Commons is elected for seven years ; where so great a proportion of the members are elected by so small a propor- tion of the people ; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discre- tion over such appropriations, expressly limited to the short period of TWO YEARS ? A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject ; and has led to investigations which must terminate in a thorough and universal conviction, not only that the Constitution has provided the most effectual guards against danger from that quarter, but that nothing ^short of a Constitution fully adequate to the national de- fence and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as bur- densome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter. The palpable necessity of the power to provide and main- THE FEDERALIST. 255 tain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties. The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds ; if their property has remained safe against the preda- tory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing govern- ment for the protection of those from whom it claims alle- giance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her sea-coast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great em- porium of its commerce, the great reservoir of its wealth, lies every moment at the rq.ercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the 256 THE FEDERALIST. States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists ; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them. The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defence, is properly thrown into the same class with it. This power, also, has been examined already with much attention, and has, I trust, been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will ad- dress one additional reflection only to those who contend that the power ought to have been restrained to external taxa- tion — by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue ; that for a considerable time it must be a principal source ; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports ; and that these variations do not corre- spond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manu- factures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more re- mote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exporta- tion, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A sys- tem of government, meant for duration, ought to contemplate these revolutions, and beable to accommodate itself to them. THE FEDERALIST. 257 Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power " to lay and collect taxes, duties, imposts, and excises, to pay the debts, arid provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power which ,may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it ; though it would have been difficult to find a reason for so awkward a form of de- scribing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms " to raise money for the general welfare." But what color can the objection have, when a specifica- tion of the objects alluded to by these general terms im- mediately follows, and is not even separated by a longer pause than a semicolon ? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the mean- ing ; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise ex- pressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be in- serted, if these and all others were meant to be included in the preceding general power.? Nothing is more natural nor common than first to use a general phrase, and then to ex- plain and qualify it by a recijtal of particulars. But the idea of an enumeration of particulars which neither explain nor 258 THE FEDERALIST. qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are, " their common defence, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical : " All charges of war and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress, shall be de- frayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these arti- cles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Con- gress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defence and general welfare ? I appeal to the ob- jectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difih- cult it is for error to escape its own condemnation ! PUBLIUS. From the New York Packet, Tuesday, January 22, 1788. THE FEDERALIST. No. XLH. (MADISON.) To the People of the State of New York : The second class of powers, lodged in the general govern- ment, consist of those which regulate the intercourse with THE FEDERALIST. 259 foreign nations, to wit : to make treaties ; to send and re- ceive ambassadors, other public ministers, and consuls ; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations ; to regu- late foreign commerce, including a power to prohibit, after the year 1808, the importation of slaves, and to lay an inter- mediate duty of ten dollars per head, as a discouragement to such importations. This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. ; The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this differ- ence only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States ; and that a power of appointing and receiving " other public min- isters and consuls," is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public minis- ters, and to send and receive consuls. It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are con- nected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties ; and that where no such treaties exist, the mission of American consuls into foreign countries may perhaps be covered under the authority, given by the ninth article of the Confedera- 26o THE FEDERALIST. tion, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been be- trayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject ; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old. The power to define and punish piracies and felonies com- mitted on the high seas, and offences against the law of nations, belongs with equal propriety to the general govern- ment, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offences against the law of nations ; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offences. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations ; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose significa- tion, even in the common law of England ; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The THE FEDERALIST. 261 meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States ; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper. The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration. It were doubtless to be wished, that the power of prohibit- ing the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate for- ever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy ; that within that period, it will receive a considerable discourage- ment from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal pros- pect lay before them of being redeemed from the oppressions of their European brethren ! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these mis- constructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and 262 THE FEDERALIST. spirit in which some have thought fit to conduct their oppo- sition to the proposed government. The powers included in the third class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular re- straints imposed on the authority of the States, and certain powers of the judicial department ; but the former are reserved for a distinct class, and the latter will be particu- larly examined when we arrive at the structure and organi- zation of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit : to regulate commerce among the several States and the Indian tribes ; to coin money, regulate the value thereof, and of foreign coin ; to provide for the punishment of counterfeiting the current coin and securities of the United States ; to fix the standard of weights and measures ; to establish a uniform rule of naturalization, and uniform laws of bankruptcy ; to pre- scribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States ; and to establish post- offices and post-roads. The defect of power in the existing Confederacy to regu- late the commerce between its several members, is in the number of those which have been clearly pointed out by ex- perience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and es- sential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regu- late the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction. THE FEDERALIST. 263 with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious inter- ruptions of the public tranquillity. To those who do not view J|he question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair ; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and im- moderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet ; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of 264 THE FEDERALIST. Confederation, which render the provision obscure and con- tradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contentiori in the federal councils. And how the trade with Indianv^ough not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities ; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States ; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regu- lation of coin struck by their own authority, or that of the respective States. It must be seen at once that the pro- posed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin. The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the THE FEDERALIST. 265 fourth article of the Confederation, it is declared "that the free inliabitants of each of the'se States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States ; and tlie people of each State shall, in every other, enjoy all the privileges of trade and commerce," etc. There is a confusion of language here, which is remarkable. Why the terms free inhabitants are used in one part of the article, free citizens ' in another, and people in another ; or what was meant by superadding to " all privileges and immunities of free citizens," " all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free iiihabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter ; that is, to greater privileges than they may be entitled to in their own State : so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term " inhabitants " to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizen- ship : in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity ; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty,- that very serious embarrassments on this subject have been hitherto escaped. By the laws of several 266 THE FEDERALIST. States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts incon- sistent not only with the rights of citizenship but with the privilege of residence. What would have been the conse- quence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to resi- dence and citizenship, within the State proscribing them ? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Con- federation on this head, by authorizing the general govern- ment to establish a uniform rule of naturalization throughout the United States. The power of establishing uniform laws of bankruptcj'^ is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into ques- tion. The power of prescribing by general laws, the maimer in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confedera- tion. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects hable to justice may be suddenly and se- cretly translated, in any stage of the process, within a foreign jurisdiction. The power of establishing post-roads must, in every view, be a harmless power, and may, perhaps, by judicious man- THE FEDERALIST. 267 agement, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care. PUBLIUS. For the Independent yournal. THE FEDERALIST. No. XLIII. (MADISON.) To the People of the State of New York : The fourth class comprises the following miscellaneous powers : 1. A power " to promote the progress of science and use- ful arts, by securing, for a limited time, to authors and in- ventors, the exclusive right to their respective writings and discoveries." The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot sepa- rately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. 2. " To exercise exclusive legislation, in all cases whatso- ever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States ; and to exercise like authority over all places pur- chased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. With- 268 THE FEDERALIST. out it, not only the public authority might be insulted and its proceedings interrupted with impunity ; but a dependence of the members of the general government on the State com- prehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary in- dependence. The extent of this federal district is suffi- ciently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it ; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it ; as the inhabitants will find sufficient inducements of interest to become willing parties to the ces- sion ; as they will have had their voice in the election of the government which is to exercise authority over them ; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them ; and as the authority of the legislature of the State, and of the in- habitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State, in their adoption of the Constitution, every imaginable objection seems to be obviated. The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evi- dent. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree depend- ent on a particular member of it. All objections and THE FEDERALIST. 269 scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment. 3. "To declare the punishment of treason, but no attain- der of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the conse- quences of guilt beyond the person of its author. 4. " To admit new States into the Union ; but no new State shall be formed or erected within the jurisdiction of any other State ; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress." In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States ; and the other colonies, by which were evidently meant the other British colonies, at the discretion of nine States. The event- ual establishment of new States seems to have been over- looked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect. The general precaution, that no new States shall be formed, without the concurrence of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precau- tion against the erection of new States, by the partition of 2/0 THE FEDERALIST. a State without its consent, quiets the jealousy of the larger States ; as that of the smaller is quieted by a like precaution, against a junction of States without their consent. 5. "To dispose of and make all needful rules and regula- tions respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Con- stitution shall be so construed as to prejudice any claims of the United States, or of any particular State." This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public. 6. " To guarantee to every State in the Union a republi- can form of government ; to protect each of them against invasion ; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." In a confederacy founded on republican principles, and composed of republican members, the superintending gov- ernment ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institu- tions of each other ; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained. But a right im- plies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution ? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. " As the confederate republic of Germany," says Montesquieu, " consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland." " Greece was undone," he adds, " as soon as THE FEDERALIST. 2/1 the king of Macedon obtained a seat among the Amphic- tyons." In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confeder- ate, had its share of influence on the events. It may possi- bly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harm- less superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of par- ticular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional ■ authority, it will be, of course, bound to pursue the author- ity. But the authority extends no further than to a guaranty of a republican form of government, which sup- poses a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitu- tions ; a restriction which, it is presumed, will hardly be ' considered as a grievance. A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enter- prises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. 272 THE FEDERALIST. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, 'properly speaking, are not under one gov- ernment, provision is made for this object ; and the history of that league informs us that mutual aid is frequently claimed and afforded ; and as well by the most democratic, as the other cantons. A recent and well-known' event among ourselves has warned us to be prepared for emer- gencies of a like nature. At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to sub- vert a government ; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State ; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communi- cating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number con- cerned in them bear some proportion to the friends of govern- ment. It will be much better that the violence in such cases " should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign THE FEDERALIST. 273 powers, as will render it superior also in an appeal to the sword ? May not a more compact and advantageous posi- tion turn the scale on the same side, against a superior num- ber so situated as to be less capable of a prompt and col- lected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, vic- tory may be calculated by the rules which prevail in a cen- sus of the inhabitants, or which determine the event of an election ! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the acces- sion of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage ? I take no notice of an unhappy species of population abounding in some' of the States, who, during the calm of regular government, are sunk below the level of men ; but who, in the tempestuous scenes of civil violence, may emerge into the human char- acter, and give a superiority of strength to any party with which they may associate themselves. In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent fac- tions, flying to arms and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a rem- edy for its infirmities could be enjoyed by all free govern- ments ; if a project equally effectual could be established for the universal peace of mankind 1 Should it be asked, what is to be the redress for an insurs rection pervading all the States, and comprising a superior, ity of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal Constitution, that it dimin- ishes the risk of a calamity for which no possible constitu- tion can provide a cure. 274 THE FEDERALIST. Among the advantages of a confederate republic enumer- ated by Montesquieu, an important one is, " that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound." 7. " To consider all debts contracted, and engagements entered into, before the adoption of this Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation." This can only be considered as a declaratory proposition ; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations. Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them ; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engage- ments are in their nature reciprocal, an assertion of their validity on one side, necessarily involves a validity on the other side ; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every con- stitution must limit its precautions to dangers that are not altogether imaginary ; and that no real danger. can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned. 8. " To provide for amendments to be ratified by three fourths of the States, under two exceptions only." That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that THE FEDERALIST. 2/5 a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable ; and that extreme difificulty, which might per- petuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representa- tion in one branch of the legislature ; and was probably in- sisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it. 9. " The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same." This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a Want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present them- selves on this occasion: i. On what principle the Con- federation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it ? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it ? The first question is answered at once by recurring to the absolute necessity of the case ; to the great principle of self- preservation ; to the transcendent law of nature and of 276 THE FEDERALIST. nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of recip- rocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an estab- lished doctrine on the subject of treaties, that all the articles are mutually conditions of each other ; that a breach of any one article is a breach of the whole treaty ; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dis- solution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they maybe confronted? The time has been when it was Incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate ; and the flatter- ing prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be ob- served, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled ; the rights of humanity must in all cases be duly and THE FEDERALIST. 277 mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other. PUBLIUS. From the New York Packet, Friday, January 25, 1788. THE FEDERALIST. No. XLIV. (MADISON.) To the People of the State of Ne-w York : K fifth class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States. I. " No State shall enter into any treaty, alliance, or con- federation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make any thing but gold and silver a legal tender in payment of debts ; pass any bill of attainder, ex-post facto law, or law impairing the obligation of contracts ; or grant any title of nobility." The prohibition against treaties, alliances, and confeder- ations makes a part of the existing articles of Union ; and for reasons which need no explanation, is copied into the' new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war ; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the gov- ernment of the United States. This alteration is fully jus- tified by the advantage of uniformity in all points which re- late to foreign powers ; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible. The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a 278 THE FEDERALIS7\ concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value de- pended on the general authority, a right of coinage in the particular States could have no other effect than to multi- ply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head ; and as far as the former might prevent an in- convenient remittance of gold and silver to the central mint forrecoinage, the end can be as well attained by local mints established under the general authority. The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public pros- perity. The less which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long re- main unsatisfied ; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sac- rifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive con- siderations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its' coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded ; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of THE FEDERALIST. 279 foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less inci- cident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency. Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legisla- tion. The two former are expressly prohibited by the dec- larations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fun- damental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights ; and I am much de- ceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting per- sonal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough re- form is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation, and needs no comment. 28o THE FEDERALIST. 2. " No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspec- tion laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay." The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States a reasonable discretion in providing for the con- veniency of their imports and exports, and to the United States a reasonable check against the abuse of this discre- tion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark. The sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest. I. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part cgn appear more completely invulnerable. With- out \.\iz' substance of this power, the whole Constitution THE FEDERALIST. 28 1 would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the/(7r;« of the provision is improper. But have they con- sidered whether a better form could have been sub- stituted ? There are four other possible methods which the Consti- tution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not expressly delegated ; they might have attempted a positive enumeration of the powers comprehended under the general terms " necessary and proper" ; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition ; they might have been altogether silent on the subject, leaving these neces- sary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their prede- cessors have been, to the alternative of construing the term " expressly" ^'iKh. so much rigor, as to disarm the govern- ment of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of construction or implication. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of be- traying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably neces- sary and proper, but, at the same time, not expressly granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a com- 282 THE FEDERALIST. plete digest of laws on every subject to which the Constitu- tion relates ; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce ; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical ; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enu- meration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have hap- pened that the enumeration would comprehend a few of the excepted powers only ; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper ; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized ; wherever a general power to do a thing is given, every par- ticular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility ; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union. THE FEDERALIST. 283 If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them ; as if the general power had been reduced to particulars, and any one of these were to be ! violated ; the same, in short, as if the State legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts ; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the .usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people inter- ested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed. 2. " This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary not- withstanding." The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only sup- pose for a moment that the supremacy of the State consti- 284 THE FEDERALIST. tutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the pro- posed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other con- stitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government ; it would have seen the authority of the whole society everywhere subordi- nate to the authority of the parts ; it would have seen a monster, in which the head was under the direction of the members. 3. " The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution." It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be im- THE FEDERALIST. 28$ posed on the officers of the United States, in favor of the State constitutions. Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The mem- bers and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance ; and will, probably, forever be conducted by the officers, and according to the laws, of the States. 4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the execu- tive and judiciary departments : but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles com- posing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, re- solves itself into another question, whether or not a govern- ment commensurate to the exigencies of the Union shall be established ; or, in other words, whether the Union itself shall be preserved. Publius. For the Indepeiident Journal. THE FEDERALIST. No. XLV. (MADISON.) To the People of the State of New York : Having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of 286 THE FEDERALIST. them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal govern- ment, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. But if the Union, as has been shown, be essential to the security of the people of America against foreign danger ; if it be essential to their security against contentions and wars among the different States ; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establish- ments which must gradually poison its very fountain ; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an ob- jection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States ? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned sub- stance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the gov- ernment of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sover- eignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institu- tions of a different form ? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued ; and that no form of government THE FEDERALIST. 2%J whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the con- vention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be. Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endan- gered, is the question before us. Several important considerations have been touched in the course of these papers, which discountenance the sup- position that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale. We have seen, in all the examples of ancient and modern confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitu- tion, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of 288 THE FEDERALIST one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together were much more numerous and powerful than in our case ; and consequently less powerful ligaments within would be sufifi- cient to bind the members to the head, and to each other. In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroach- ments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many inde- pendent princes as there were formerly feudatory barons. The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will pos- sess ; to the powers respectively vested in them ; to the predilection and probable support of the people ; to the dis- position and faculty of resisting and frustrating the meas- ures of each other. The State governments may be regarded as constituent and essential parts of the federal government ; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legisla- tures, the President of the United States cannot be elected at all. They must in all cases have a great share in his ap- pointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and ex- clusively by the State legislatures. Even the House of Rep- resentatives, though drawn immediately from the people, THE FEDERALIST. 289 will be chosen very much under the influence of that class of men, whose influence over the people obtains for them- selves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State govern- ments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no in- stance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members. The number of individuals employed under the Constitu- tion of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more, of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal sys- tem. Compare the members of the three great departments of the thirteen States, excluding from the judiciary de- partment the justices of peace, with the members of the corresponding departments of the single government of the Union ; compare the militia officers of three millions of peo- ple with the mihtary and marine officers of any establish- ment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pro- nounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the sea-coast, and not very 290 THE FEDERALIST. numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the ad- vantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States ; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue ; that an option will then be given to the States to supply their quotas by previous collections of their own ; and that the eventual collection, under the immediate au- thority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, par- ticularly in the organization of the judicial power, the offi- cers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the mul- titude of State officers in the opposite scale. Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of char- acter and weight, whose influence would lie on the side of the State. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on ex- ternal objects, as war, peace, negotiation, and foreign com- merce ; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most THE FEDERALIST. 29I extensive and important in times of war and danger ; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more ade- quate, indeed, the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favor their ascendancy over the govern- ments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power ; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers re- lating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confedera- tion. The proposed change does not enlarge these powers ; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important ; and yet the present Congress have as complete authority to REQUIRE of the States indefinite sup- plies of money for the common defence and general welfare, as the future Congress will have to require them of indi- vidual citizens ; and the latter will be no more bound than the States themselves have been, to pay the quotas respec- tively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State gov- ernments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To main- tain that such an event would have ensued, would be to say at once, that the existence of the State governments is in- 292 THE FEDERALIST. compatible with any system whatever that accomplishes the essential purposes of the Union. PUBLIUS. From the New York Packet, Tuesday, yanuary 2g, 1788. THE FEDERALIST. No. XLVI. (MADISON.) To the People of tJie State of New York : Resuming the subject of the last paper, I proceed to inquire whether the federal government or the State gov- ernments will have the advantage with regard to the predi- lection and support of the people. Notwithstanding the different modes in which they are appointed, we must con- sider both of them as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, consti- tuted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject ; and to have viewed these different estab- lishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first. and ■ most natural attachment of the people will be to the govern- THE FEDERALIST. 293 me nts of the ir rgspective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely con- versant. And with the members of these, will a greater proportion of the people have the ties of personal acquaint- ance and friendship, and of family and party attachments ; on the side of these, therefore, the popular bias may well be expected most strongly to incline. Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and im- portance as great as it can well have in any future circum- stances whatever. It was engaged, too, in a course of measures which had for their object the protection of every thing that was dear, and the acquisition of every thing that could be desirable to the people at large. It was, neverthe- less, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attach- ment of the people were turned anew to their own particular governments ; that the federal council was at no time the idol of popular favor ; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens. If, therefore, as has been elsewhere remarked, the Eeo£le should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administra- tion, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be pre- cluded from giving most of their confidence where they may 294 THE FEDERALIST. discover it to be most due ; but even in that case the State governments could have little to apprehend, because it is only witliin a certain sphere that the federal power can, in the nature of things, be advantageously administered. The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other. It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be in- fluenced by these causes, the State governments must clearly have the advantage. But in a distinct and very im- portant point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States ; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government.. A local spirit will infallibly prevail much more in the mem- bers of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collec- tive welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations ? For the same reason that the members of the State legislatures will be THE FEDERALIST. 29$ unlikely to attach themselves sufficiently to national ob- jectSj the members pf_the federal legislature will be likely to attach themselves . too much. tP local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceed- ings of Congress ? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest ; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great inter- ests of the nation have suffered on a hundred, from an un- due attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing govern- ment may have pursued ; much less, that its views will be as confined as those of the State legislatures ; but only that it will partake sufficiently of the spirit of both, to be disin- clined to invade the rights of the individual States, or the prerogatives of their governments. The motives on the part of the State governments, to augment their preroga- tives by defalcations from the federal government, will be overruled by no reciprocal predispositions in the members. Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such en- croachments. If an act of a particular State, though un- friendly to the national government, be generally popular in that State, and should not too grossly violate the oaths 296 THE FEDERALIST. oi the State ofificers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal ofificers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in partic- ular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, per- haps, refusal to cooperate with the officers of the Union ; the frowns of the executive magistracy of the State; the em- barrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised ; would form, in a large State, very serious impediments ; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not ex- cite the opposition of a single State, or of a few States onty. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke ; and unless the projected innovations should be vol- untarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal gov- ernment to such an extremity. In the contest with Great Britain, one part of the empire was employed against the THE FEDERALIST. 297 Other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise ; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties ? A few representatives of the people would be opposed to the people themselves ; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The rea- sonings contained in these papers must have been em- ployed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both ; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment ; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the in- coherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober ap- prehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed ; and let it be entirely at the devotion of the federal government ; still it would not be going too far to say, that the State gov- ernments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundreth part of the whole number of souls ; or one twenty-fifth part of the number able 298 THE FEDERALIST. to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, ofifi- cered by men chosen from among themselves, fighting for their common liberties, and united and conducted by gov- ernments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the ad- vantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a bar- rier against the enterprises of ambition, more insurmount- able than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of offi- cers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the THE FEDERALIST. 299 necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the peo- ple, or it will not. On the first supposition, it will be re- strained by that dependence from forming schemes ob- noxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State govern- ments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union ; and that all those alarms which have been sounded, of a meditated and con- sequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chi- merical fears of the authors of them. PUBLIUS. From the Ne-iO York Packet, Friday, February I, 178S. THE FEDERALIST. No. XLVII. (madison.) To the People of the State of New York : Having reviewed the general form of the proposed gov- ernment and the general mass of power allotted to it, I proceed to examine the particular structure of this govern- ment, and the distribution of this mass of power among its constituent parts. One of the principal objectTons inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, execu- 300 THE FEDERALIST. tive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powerSj_legislative, ex- ecutive, and judipary, in the same hands,(whether of one, a few, or manyjpnd whether hereditary, self-appointed, or electiveHmay justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a .mixture' of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I per- suade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and dis- tinct. The oracle who is always consulted and cited on this sub- ject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. . Let us endeavor, in the first place, to ascertain his- meaning on this point. The British Constitution was to Montesquieu what Homer THE FEDERALIST. '101 has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty ; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be pure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary depart- ments are by no means totally separate and distinct from each other. The ejcecutiyg. magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, wliich, when made, have, under certain limitations, the force_of_leg;i^J.ative acts. All the members of the judii£iary department are ap£ointed Jay him , can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the SQle_ depositary of j udic ial_^|o wer m c ases of impeachment, and is invested with the su preme ap pellatei urisdiction in all other cases. The judg^s^ again, are so far connected with the lesyislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying " There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, " if the power of judging be not separated from the legislative and executive powers," he did not mean that these depart- 302 THE FEDERALIST. ments ought to have vlo partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the con- stitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legis- lative power, or the supreme administration of justice ; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, how- ever is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a nega- tive on every law ; nor administer justice in person, though he has the appointment of those who do. administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock ; nor any legisla- tive function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges' may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the im- peachment of a third, can try and condemn all the sub- ordinate officersnn the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. " When the legislative and executive powers are united in the same person or body," says he, " there can be no liberty, because apprehensions may arise lest the- same monarch or senate should r;/rtrA' tyrannical laws to execute them in a tyrannical manner." Again : " Were the power of judging joined with ! THE FEDERALIST. 303 the legislative, the life and liberty of the subject would be exposed to arbitrary control, for tlie judge would then be tlie legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." Some of these reasons are more fully explained in other passages ; but briefly stated as they are here, they suffi- ciently establish the meaning which we have put on this celebrated maxim of this celebrated author. If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely"" separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doc- , trine by declaring !^' that the legislative, executive, and /] judiciary powers ought to be kept as separate from, and£ independent of, each other as the nature of a free govcrn-m mcnt will admit ; or as is consistent with that chain of con- 1 , nection that binds the whole fabric of the constitution in one\ indissoluble bond of unity and amity.^ Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive depart- ment, is the presiding member also of the Senate ; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive depart- ment. The constitution of Massachusetts has observed a suffi- 304 THE FEDERALIST. cient though less pointed caution, in expressing this funda- mental article of liberty..^ It declares " that the legislative department shall never exercise the executive and judicial powers, or either of them ; the executive shall never exer- cise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them." This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually ap- pointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves. I pass over the constitutions of Rhode Island and Con- necticut, because they were formed prior to the Revolution, and even before the principle under examination had be- come an object-of political attention. The constitution of New York contains no declaration on this subject ; but appears very clearly to have been framed with an eye to the danger of improperly blending th'e dif- ferent departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department ; and, what is more, gives a like control to the judiciary de- partment ; and even blends the executive and judiciary THE FEDERALIST. 30S departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of offi- cers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department. The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature ; is chancellor and ordinary, or surrogate of the State ; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as execu- tive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary depart- ment are appointed by the legislative department, and re- movable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the presi- dent, who is the head of the executive department, is annu- ally elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judi- ciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature ; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive council are made EX-OFFiciO justices of peace throughout the State. In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, ap- pointed, three by each of the legislative branches, consti- tutes the Supreme Court of Appeals ; he is joined with the 306 THE FEDERALIST. legislative department in the appointment of the other judges. Throughout the States, it appears that the mem- bers of the legislature may at the same time be justices of the peace ; in this State, the members of one branch of it are EX-OFFiciO justices of the peace ; as are also the inem- bers of the executive council. The principal officers of the executive department are appointed by the legislative ; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature. Maryland has adopted the maxim in the most unqualified terms ; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstand- ing, makes the executive magistrate appointable by the legislative department ; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, " that the legislative, executive, and judiciary departments shall be separate and distinct ; so that neither exercise the powers properly be- longing to the other ; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly." Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature ; that two mem- bers of the latter are triennially displaced at the pleasure of the legislature ; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares " that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the THE FEDERALIST. 307 executive chief, but all the principal officers within both that and the judiciary department. Iff South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs ; and the appointment of officers in the execu- tive department, down to captains in the army and navy of the State. In the constitution of Georgia, where it is declared " that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature ; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally sep- arate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State govern- ments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under considera- tion has been violated by too great a mixture, and even an actual consolidation, of the different powers ; and that in no instance has a competent provision been made for main- taining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. PUBLIUS. 308 THE FEDERALIST. From the A^ew York Packet, Friday-, February i, 17S8. THE FEDERALIST. No. XLVIII. (MADISON.) To the People of the State of New York : It was shown in the last paper that the poHtical .apothegm there examined does not require that the legislative, execu- tive, and judiciary departments should be wholly uncon- nected with each other. I shall undertake, in the next place, to show that unless these departments be so far con-i nected and blended as to give to each a constitutional con- trol over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. It is agreed on all sides, that the powers properly belong- ing to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in i^ theory, the several classes of power, as they may in their nature be legfelative, executive, or judiciary, the next and i,^ most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the bounda- ries of these departments, in the constitution of the govern- ment, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated ; and that some more adequate defence is indis- pensably necessary for the more feeble, against the more THE FEDERALIST. 309. powerful, members of the government. The legislative department is everywhere extending the sphere of its activ- ity, and drawing all power into its impetuous vertex. The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into v/hich they have fallen. A respect for truth, however, obliges us to re- mark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, sup- ported and fortified by an hereditary branch of the legisla- tive authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. In a government where numerous and extensive pre- rogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative func- tions, and are continually exposed, by their incapacity for regular deliberation and concerted meas'ures, to the ambi- tious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power ; and where the legislative power is exercised by an assembly, which is in- spired, by a supposed influence over the people, with an intrepid confidence in its own strength ; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the ob- jects-of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. 3IO THE FEDERALIST. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of I precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments. It is not unfre- quently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and beiiig-^««i=e— sioigle in its natiir%- a>nd the -jtrdTCTSry bemg~described by landmarks-'Sfill less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all : ' as the legislative department alone has access to the pockets of the people, and has in some constitution&,full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multi- plied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satis- factory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities. The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, be- sides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience THE FEDERALIST. 3II had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting " Notes on the State of Virginia," p. 195. " All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic govern- ment. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single ©ne. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. I An elective despotism was not the government we fought for ; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and re-, strained by the others. \For this reason, that convention" which passed the ordinance of government, laid its founda- tion on this basis, that the legislative, executive, and ju- diciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. Bict no barrier was provided be t-w ecu these several powers. The judiciary and the executive mem- bers were left dependent on the legislative for their subsis- tence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made ; nor, if made, can be effectual ; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obhgatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becom- ing habitual atid familiar ." ' The other State which I shall take for an example is Pennsylvania ; and the other authority, the Council of Cen- 312 THE FEDERALIST. sors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was " to inquire whether the constitution had been pre- served inviolate in every part ; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution." In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments ; and from the facts enumer- ated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of impor- tant instances. A great number of laws had been passed, violating, with- out any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consid- eration of the people ; although this is one of the precau- tions chiefly relied on by the constitution against improper acts of the legislature. / The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the con- stitution. ' Executive powers had been usurped. The salaries of the judges, which the constitution ex- pressly requires to be fixed, had been occasionally varied ; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination. Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war ; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government. It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. THE FEDERALIST. 3I3 There are three observations, however, which ought to be made on this head : first, a great proportion of the instances ' were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in^ chief; secondly, in most of the other instances, they con- * formed either to the declared or the known sentiments of the legislative department; tJiirdly, the executive depart-^, ment of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mut'ual ex- ample and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands. The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of gov- ernment in the same hands. PUBLIUS. From the New York Packet, Tuesday, February 5, 1788. THE FEDERALIST. No. XLIX. (HAMILTON OR MADISON.) To the People of the State of New York :. The author of the " Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been pre- pared in order to be laid before a convention expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more 314 THE FEDERALIST. worthy of attention as it equally displays a fervent attach- ment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiiy, ought not to be overlooked. His proposition is, " that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a con- vention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose." As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same originak authority, not only whenever it may be necessary to enlarge, diminish, or new- model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several de- partments being perfectly coordinate by the terms of their common commission, none of them, it is evident, can pre- tend to an exclusive or superior right of settling the boun- daries between their respective powers ; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commis- sion, can alone declare its true meaning, and enforce its observance ? There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the pro- THE FEDERALIST. 315 posed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits. In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the princi^ pie, than against the principle itself. In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people, would carry an implication of some defect in the governr ment, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufificiently inculcated by the voice of an enlightened rea- son. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. 3l6 THE FEDERALIST. The danger of disturbing the public tranquiUity by in- teresting too strongly the public passions, is a still more serious objection against a frequent reference of consti- tutional questions to the decision of the whole society. Notwithstanding the success which has attended the revi- sions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were forn-.ed in the midst of a danger which repressed the pas- sions most unfriendly to order and concord ; of an enthusi- astic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions ; of a universal ardor for new and oppo- site forms, produced by a universal resentment and indigna- tion against the ancient government ; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the opera- tion. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equi- librium of the government. We have seen that the ten- dency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial ? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be person- ally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people THE FEDERALIST. 317 to share much in their prepossessions. The former are gen- erally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friend- ship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardi- ans of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legis- lature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them. It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legis- lature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be con- 3l8 THE FEDERALIST. nected with the spirit of preexisting parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive in- fluence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. 'Y\i& passions, therefore, not the reason, of the public would sit in judg- ment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular in- genuity and precision. PUBLIUS. From the New York Packet, Tuesday, February z,, 1788. THE FEDERALIST. No. L. (HAMILTON OR MADISON.) To the People of the State of New York : It may be contended, perhaps, that instead of occasional appeals to the people, which are liable to the objections urged against them, periodical appeals are the proper and adequate means of preventing and correcting infractions of the Constitution. It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for enforcing the Constitution, by keeping the several departments of power within their due bounds, without particularly consid- ering them as provisions for altering the Constitution itself. In the first view, appeals to the people at fixed periods THE FEDERALIST. 319 appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures ; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated. The scheme of revising the constitution, in order to cor- rect recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legis- lative and executive departments had encroached on each other." This important and novel experiment in poHtics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as appHed to the case 320 THE FEDERALIST. under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed. First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active and leading members had also been active and leading characters in the parties which preexisted in the State. Secondly. It Appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed ; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several others members of tlip executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished mem- bers, of the legislative assembly within the same period. Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their de- liberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the' face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mis- take, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfor- tunately, /a.s'jz'wz, not rcaso7i, WM'sX have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same. Fourthly. It is at least problematical, whether the deci- sions of this body do not, in several instances, misconstrue THE FEDERALIST. 32 1 the limits prescribed for the legislative and executive de- partments, instead of reducing and limiting them within their constitutional places. Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the con- temporary legislature denied the constructions of the council, and actually prevailed in the contest. This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties ? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them ? Such an event ought to be neither presumed nor desired ; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The im- portant task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not imme- diately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. PUBLIUS. 322 THE FEDERALIST. From the New York Packet, Friday, February 8, 17SS. THE FEDERALIST. No. LI. (HAMILTON OR MADISON.) To the People of the State of New York : To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of powe r among the several departments, as laid down in the Consti- tution ? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keep- ing each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the gov- ernment planned by the convention. ~ In order to lay a due foundation for that separa te and distinct exercise of the_different_powers_of_government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own ; and conse4 quently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigor- ously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magis- tracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of con- structing the several departments would be less diiificult in practice than it may in contemplation appear. Some dififi- culties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient THE FEDERALIST. 323 to insist rigorously on the principle : first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications ; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of de- pendence on the authority conferring them. It is equally evident, that the members of each depart- ment should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not inde- pendent of the legislature in this particular, their indepen- dence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the neces- sary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, .that such devices should be necessary to control the abuses of government, But what is government itself, but the greatest of all reflec- tions on human nature ? I If men were angels, no govern- ment would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be ad- ministered by men over men, the great difficulty lies in this : you must first enable the government to control the governed ; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary con- trol on the government ; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the 324 THE FEDERALIST. whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate dis- tributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the pubhc rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defence. In republican government, the legis- l^ive authority necessarily predominates. The remedy for this inconveniencyis to divide the legislature into different branches; and to render them, by different modes of elec- tion and different principles of action, as little connected with each other a« the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous en- croachments by still further precautions. As the weight of the legislative authority requires that it should be thus divid- ed, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute nega- tive on the legislature appears, at first view, to be the natu- ral defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be ex- erted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be suppHed by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department ? If the principles on which these observations are founded be just, as I persuade myself they are, and they be ap- plied as a criterion to the several State constitutions, and to the federal Constitution, it will be found that if the THE FEDERALIST. ■ 325 latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly ap- plicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate depart- ments. In the compound republic of America, the power surrendered by the people is first divided between two dis- tinct governments, and then the portion allotted to each subdivided among distinct and separate depatments. Hence a double security arises to the rights of the people. The tipiSJtJiai-£9^;^^^^Tfef^6wMi«QiI'SdJ3ky,jt^ Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil : the one by creating a will in the community independent of the majority — that is, of the society itself ; the other, by compre- hending in the society so many separate descriptions of citi- zens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security ; because a power independent of the society may as well espouse the unjust views of the major, as the rightful in- terests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the s federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, 326 THE FEDERALIST. and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested com- binations of the majority. In a free government the security for civil rights must be the same as that for re- ligious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiphcity of sects. The degree of security in both cases will depend on the number of interests and sects ; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republi- can government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States, oppressive combina- tions of a majority will be facilitated ; the best security, under the republican forms, for the rights of every class of citizens, will be diminished ; and consequently the stability and independence of some member of the ^wernment, the_only_otber_secuj-itj^, must be proportionally increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves ; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the fiopular form of government within such THE FEDERALIST. 327 narrow limits would be displayed by such reiterated oppres- sions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. J[n„th£_.exten.ded_reLp]jj3lic of the JJnited §tates, and SLinong the great vari ety of inter ests, parties, and se£ts_ which it emb races, j^coalition of a majoritj^__of^ the__ whole so ciety could sel dom tak e place on any other j3rinciples_than_those of justice and tlie_general_ good ; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the gov- ernment a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, . gptwithstanding_ tbr r^ntrswy opinions which have been entertained^^tha^ the .larger tjiTT^ socief yTprgyided-tt-fe-mt'triTr'a practical sphe re, the more duly cap able it will be o f self-goveranie^! And happily ' ior\\\&~rcpublican cause, the practicable sphere may be car- ried to a very great extent, by a judicious modification and mixture of \!a.& federal principle. PUBLIUS. From the Ne%u York Packet, Friday, February 8, 17S8. THE FEDERALIST. No. LII. (HAMILTON OR MADISON.) To the People of the State of New York : From the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the government. I shall begin with the House of Representatives. The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legisla- tures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. 328 THE FEDERALIST. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason ; and for the addi- rional reason that it would have rendered too dependent on the State governments that branch of the federal govern- ment which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitu- tion. The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twent^ye years ; must^have been seven years a citizen of TEe^Tlnited^States^; must, at the timeof his efection^ be "an inhabitant of the State he is to represent ; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith. THE FEDERALIST. 329 The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered : first, whether bierfnial elections will, in this case, be safe ; secondly, whether they be necessary or useful. First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consid- eration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particu- lar degree of frequency may^4ie- absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found. The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the great- est analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earhest records of subsequent date prove that parliaments were to sit only every year ; not that they were to be elected every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions 330 THE- FEDERALIST. were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II., that the intermissions should not be protracted beyond a period of three years. On the accession of William III., when a revolution took place in the govern- ment, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people, that parliaments ought to be \\&\A. frequently. By another statute, which passed a few years later in the same reign, the term " frequently," which had alluded to ' the triennial period settled in the time of Charles II., is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the ter- mination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under an alarm for the Han- overian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their con- stituents. Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other con- tingent event. The parhament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of THE FEDERALIST. 33 1 the latter to supply occasional vacancies, by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parHament to maintain the rights of their constitu- ents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late, these shackles, if I mistake not, have been broken ; and octennial parliaments have be- sides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves. Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular atten- tion, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commence- ment of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient por- tion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement. This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent. Virginia was the colony which stood first in resisting the parliamentary usur- 332 THE FEDERALIST. pations of Great Britain ; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial. This par- ticular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was prob- ably accidental ; and still less of any advantage in septennial elections, for when compared with a greater frequency they are inadmissible ; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections. The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament ; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration ; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on the people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other. PUBLIUS. THE FEDERALIST. 333 From the New York Packet, Tuesday, February 12, 1788. THE FEDERALIST. No. LIII. (HAMILTON OR MADISON.) To the People of the State of New York : I shall here, perhaps, be reminded of a current observa- vation, " that where annual elections end, tyranny begins." If it be true, as has often been remarked, that sayings which become proverbial are generally founded in reason, it is not less true, that when once established, they are often applied to cases to which the reason of them does not extend. I need not look for a proof beyond the case before us. What is the reason on which this proverbial observation is founded } No man will subject himself to the ridicule of pretending that any natural connection subsists between the sun or the seasons, and the period within which human virtue can bear the temptations of power. Happily for mankind, liberty is not, in this respect, confined to any single point of time ; but lies within extremes, which afford sufficient latitude for all the variations which may be re- quired by the various situations and circumstances of civil society. The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly, as well as annual ; and if circum- stances may require a deviation from the rule on one side, why not also on the other side ? Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connect- icut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial — as is proposed in the federal government. Here is a difference, as four to one, between the longest and shortest periods ; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, 334 "^HE FEDERALIST. than South Carolina ; or that either the one or the other oi these States is distinguished in these respects, and by these causes, from the States whose elections are^ different from both. In searching for the grounds of this doctrine, I can dis- cover but one, and that is wholly inapplicable to our case. The important distinction so well understood in America, between a Constitution established by the people and un- alterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legis- lative provision. They have accordingly, in several in- stances, actually changed, by legislative acts, some of the most fundamental articles of the government. They have in particular, on several occasions, changed the period of election ; and, on the last occasion, not only introduced septennial in place of triennial elections, but by the same act, continued themselves in place four years beyond the term for which they were elected by the people. An atten- tion to these dangerous practices has produced a very natural alarm in the votaries of free government, of which frequency of elections is the corner-stone ; and has led them to seek for some security to liberty, against the danger to which it is exposed. Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for ; and what better security would the case admit, than that of selecting and appealing THE FEDERALIST. 335 to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions ? The most simple and familiar portion of time, applicable to the subject, was that of a year ; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elec- tions. But what necessity can there be of applying this ex- pedient to a government limited, as the federal government will be, by the authority of a paramount Constitution ? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more fre- quent, but subject to alterations by the ordinary power of the government ? The second question stated is, whether biennial elections be necessary or useful. The propriety of answering this question in the affirmative will appear from several very obvious considerations. • No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legis- late. A part of this knowlege may be acquired by means of information which lie within the compass of men in private as well as pubHc stations. Another part can only be attained, or at least thoroughly attained, by actual ex- perience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge req- uisite to the due performance of the service. The period of legislative service established in most of the States for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form : does the period of two years bear no greater proportion to the 336 THE FEDERALIST. knowledge requisite for federal legislation than one year does to the knowledge requisite for State legislation ? The very statement of the question, in this form, suggests the answer that ought to be given to it. In a single State, the requisite knowledge relates to the existing laws, which are uniform throughout the State, and with which all the citizens are more or less conversant ; and to the general affairs of the State, which lie within a small compass, are not very diversified, and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every State ; whilst the public affairs of the Union are spread throughout a very extensive region, and are ex- tremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils, to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other respects? How can taxes be judiciously imposed and effectually collected, if they be not accommodated to the different laws and local circumstances relating to these ob- jects in the different States? How can uniform regulations for the militia be duly provided, without a similar knowl- edge of many internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation, and suggest most forcibly the extensive information which the representatives ought to acquire. The other interior objects will require a propor- tional degree of information with regard to them. THE FEDERALIST. 337 It is true that all these difficulties will, by degrees, be very much diminished. The most laborious task will be the proper inauguration of the government and the primeval formation of a federal code. Improvements on the first draughts will every year become both easier and fewer. Past transactions of the government will be a ready and ac- curate source of information to new members. The affairs of the Union will become more and more objects of curios- ity and conversation among the citizens at large. And the increased intercourse among those of different States will contribute not a little to diffuse a mutual knowledge of their affairs, as this again will contribute to a general assimilation of their manners and laws. But with all these abatements, the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative busi- ness of a single State, as to justify thj longer period of ser- vice assigned to those who are to transact it. A branch of knowledge which belongs to the acquire- ments of a federal representative, and which has not been mentioned, is that of foreign affairs. In regulating our own commerce, he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations ; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and cooperation. Some portion of this knowledge may, no doubt, be acquired in a man's closet ; but some of it also can only be derived from the public sources of information ; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature. 338 THE FEDERALIST. There are other considerations, of less importance, per- haps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered necessary by that circum- stance, might be much more serious objections with fit men to this service, if limited to a single year, than if extended to two years. No argument can be drawn on this subject, from the case of the delegates to the existing Congress. They are elected annually, it is true ; but their reelection is considered by the legislative assemblies almost as a matter of course. The election of the representatives by the peo- ple would not be governed by the same principle. A few of the members, as happens in all such assemblies, will possess superior talents ; will, by frequent reelections, become members of long standing; will be thoroughly mas- ters of the public business, and perhaps not unwilling to avail themselves of those advantages. The greater the pro- portion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them. This remark is no less applicable to the relation which will subsist between the House of Representatives and the Senate. It is an inconvenience mingled with the advantages of our frequent elections, even in single States, where they are large, and hold but one legislative session in a year, that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence, a very pernicious encouragement is given to the use of unlawful means, fol- obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant States. Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members ; and whatever improvements may be sug- THE FEDERALIST. 339 gested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtain- ing a seat. All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public, as we have seen that they will be safe to the liberty of the people. PUBLIUS. From- the New York Packet, Tuesday, February 12, 1788. THE FEDERALIST. No. LIV. (HAMILTON OR MADISON.) To the People of the State of New York : The next view which I shall take of the House of Repre- sentatives relates to the appointment of its members to the several States, which is to be determined by the same rule with that of direct taxes. It is not contended that the number of people in each State ought not to be the standard for regulating the pro- portion of those who are to represent the people of each State. The establishment of the same rule for the appoint- ment of taxes will probably be as little contested ; though^ the rule itself, in this case, is by no means founded on the same principle. In the former case, the rule is understood to refer to the personal rights of the people, with which it has a natural and universal connection. In the latter, it has reference to the proportion of wealth, of which it is in no case a precise measure, and in ordinary cases a very unfit one. But notwithstanding the imperfection of the rule as applied to the relative wealth .and contributions of the States, it is evidently the least objectionable among the practicable rules, and had too recently obtained the general sanction of America, not to have found a ready preference with the convention. 340 THE FEDERALIST. All this is admitted, it will perhaps be said ; but does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio. of taxation, that slaves ought to be included in the numerical rule of representation ? Slaves are considered as property, not as persons. They ought therefore to be com- prehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. " We subscribe to the doctrine," might one of our South- ern brethren observe, " that representation relates more im- mediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, ajid in no respect whatever as persons. The true state of the case is, that they partake of both these qualities : being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master ; in being vendible by one master to another master; and in being subject at all times to be re- strained in his liberty and chastised in his body, by the capricious will of another, — the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punish- able himself for all violence committed against others, — the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation ; as a moral person, not as a mere article of property. The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character THE FEDERALIST. 341 of persons and of property. This is in fact their true charac- ter. It is the character bestowed on them by the laws under which they live ; and it will not be denied, that these are the proper criterion ; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers ; and it is admitted, that if the laws were to re- store the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants. " This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted ? Could it be reasonably expected, that the Southern States would concur in a sys- tem, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider therri in the same light, when advantages were to be con- ferred ? Might not some surprise also be expressed, that those who reproach the Southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain ? " It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor in- crease the votes of their masters. Upon what principle, then, ought they to be taken into the federal estimate of representation ? In rejecting them altogether, the Constitu- tion would, in this respect, have followed the very laws which have been appealed to as the proper guide. 342 THE FEDERALIST. " This objection is repelled by a single observation. It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States is to be determined by a federal rule, founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exer- cised by such part of the inhabitants as the State itself may designate. The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives. In this point of view the Southern States might retort the complaint, by insisting that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants ; and consequently that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like man- ner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle, is waived by those who would be gainers by it. All that they ask is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a pe- culiar one. Let the compromising expedient of the Consti- tution be mutually adopted, which regards them as inhab- itants, but as debased by servitude below the equal level of free inhabitants ; which regards the s/ave as divested of two fifths of the 7fzan. " After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defence ? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea ? Government is insti- tuted no less for protection of the property, than of the THE FEDERALIST. 343 persons, of individuals. The one as well as the other therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the States, and particularly in the State of New York, one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most inter- ested in this object of government. In the federal Con- stitution, this policy does not prevail. The rights of property are committed into the same hands with the personal rights. Some attention ought, therefore, to be paid to property in the choice of those hands. " For another reason, the votes allov/ed in the federal legislature to the people of each State, ought to bear some proportion to the comparative wealth of the States. States have not, like individuals, an influence over each other, aris- ing from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his represent- ative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice ; and through this imperr ceptible channel the rights of property are conveyed into the public representation. A State possesses no such influ- ence over other States. It is not probable that the richest State in the Confederacy will ever influence the choice of a single representative in any other State. Nor will the representatives of the larger and richer States possess any other advantage in the federal legislature, over the repre- sentatives of other States, than what may result from their superior number alone. As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of repre- sentation. The new Constitution is, in this respect, materi- ally different from the existing Confederation, as well as from that of the United Netherlands, and other similar confeder- acies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary reso- 344 THE FEDERALIST. lutions' of the states composing the union. Hence the states, though possessing an equal vote in the public coun- cils, have an unequal influence, corresponding with the unequal importance of these subsequent and voluntary resolutions. Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy : in the same manner as the votes individually given in a State legislature, by the repre- sentatives of unequal counties or other districts, have each a precise equality of value and effect ; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes." Such is the reasoning which an advocate for the Southern interests might employ on this subject ; and although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established. In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree, on the disposition, if not on the cooperation, of the StatesJ^ it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exag- gerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would pre- vail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality. PUBLIUS. THE FEDERALIST. 34S From the New York Packet, Friday, February 15, 1788. THE FEDERALIST. No. LV. (HAMILTON OR MADISON.) To the People of the State of New York : The number of which the House of Representatives is to consist, forms another and a very interesting point of view, under which this branch of the federal legislature may be contemplated. Scarce any article, indeed, in the whole Constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argu- ment with which it has been assailed. The charges ex- hibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests ; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents ; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives. In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature ; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Pass- ing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very con- siderable difference is observable among States nearly equal 346 THE FEDERALIST. in population. The number of representatives in Pennsyl- vania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity- prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And ac- cording to the constitution of Georgia, the proportion may be carried to one to every ten electors ; and must unavoid- ably far exceed the proportion in any of the other States. Another general remark to be made is, that the ratio be- tween the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hun- dred ; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assem- bly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hun- dred would be proportionably a better depositary. And if we. carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a comhination for improper purposes ; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the con- fusion and intemperance of a multitude. In all very numer- ous assemblies, of whatever character composed, passion THE FEDERALIST. 347 never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. With these general ideas in our minds, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power. The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. - Within three years a census is to be taken, when the num- ber may be augmented to one for every thirty thousand inhabitants ; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, ac- cording to the computed rate of increase, the number of representatives will amount to two hundred ; and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the 348 THE FEDERALIST. manner provided by the Constitution. On a contrary sup- position, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five mem- bers for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have re- ceived with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens. I am unable to con- ceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty- five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally un- able to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hun- dred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the sol- emn trust committed to them. What change of circum- stances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circum- stances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution. THE FEDERALIST. 349 From what quarter can the danger proceed? Are we afraid of foreign gold ? If foreign gold could so easily cor- rupt our federal rulers and enable them to ensnare and be- tray their constituents, how has it happened that we are at this time a free and independent nation? The congress which conducted us through the Revolution was a less numerous body than their successors will be; they were not chosen by, nor responsible to, their fellow-citizens at large ; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and, prior to the ratification of the federal articles, for a still longer term. They held their consultations always un- der the veil of secrecy ; they had the sole transaction of our affairs with foreign nations ; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives ; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed ; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny. Is the danger apprehended from the other branches of the federal government ? But where are the means to be found by the President, or the Senate, or both ? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representa- tives cannot, more than suffice for very different purposes ; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and per- fidious combination of the several members of government, 350 THE FEDERALIST. standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has pro- vided a still further safeguard. The members of the Con- gress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties : and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to re- nounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jeal- ousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extrava- gancies of this passion, are not aware of the injury they do ' their own cause. As there is a degree of depravity in man- kind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government ; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. PUBLIUS, From the New York Packet, Tuesday, February ig, 1788. TI-TE FEDERALIST. No. LVI. (HAMILTON OR MADISON.) To the People of the State of New York : The second charge against the House of Representatives is, that it will be too small to possess a due knowledge of the interests of its constituents. THE FEDERALIST. 35 I As this objection evidently proceeds from a comparison of the proposed number of representatives with the great extent of the United States, the number of their inhabi- tants, and the diversity of their interests, without taking into view at the same time the circumstances which will distin- guish the Congress from other legislative bodies, the best answer that can be given to it will be a brief explanation of these peculiarities. It is a sound and important principle that the representa- tive ought to be acquainted with the interests and circum- stances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is con- sistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of infor- mation required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority. What are to be the objects of federal legislation ? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia. A proper regulation of commerce requires much informa- tion, as has been elsewhere remarked ; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufificient vehicles of it to the federal councils. Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowl- edge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, 352 THE FEDEPALTST. and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a suffi- cient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skilful individual in his closet, with all the local codes before him, might compile a law on some subjects of taxation for the whole Union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exer- cising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their pro- ceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it.'' The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be con- veyed by a very few hands into the legislature of the United States. The observations made on the subject of taxation apply THE FEDERALIST. 353 with greater force to the case of the militia* For however different the rules of discipline may be in different States, they are the same throughout each particular State ; and depend on circumstances which can differ but little in different parts of the same State. ' The attentive reader will discern that the reasoning here used, 'to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive in- formation which the representatives ought to possess, and the time that might be necessary for acquiring it. This in- formation, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be com- petently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legisla- tion, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States. The changes of time, as was formerly remarked, on * In the revised text this senlence reads : " With regard to the regulation of the militia, there are scarcely any circumstances in reference to which local knowledge can be said lo be necessary. The general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. The art of war leaches general principles of organization, movement, and discipline, which ap- ply universally." 354 "^HE FEDERALIST. the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a socjiety of husbandmen. Few of them have made much progress in those branches of industry which give a variety and com- plexity to the affairs of a nation. These, however, "will in all of them be the fruits of a more advanced population ; and will require, on the part of each State, a fuller represen- tation. The foresight of the convention has accordingly taken care that the progress of population may be accom- panied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to man- kind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight millions. The represen- tatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four per- sons, and one half, by five thousand seven hundred and twenty-three persons.* It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more fre- quently the representatives and instruments of the execu- tive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, how- ever, consider them in this light alone, and will not extend * Burgh's " Political Disquisitions.'' — Publius. THE FEDERALIST. 355 the deduction to a considerable number of others, who do not reside among their constituents, are very faintly con- nected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depositary of the safety, interest, and happiness of eight millions — that is to say, there will be one representative only to maintain the rights and explain the situation of twenty-eight thousand six hundred and seventy constituents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and com- plicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these cir- cumstances, but that the defects in the British cbde are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and com- paring it with that of the House of Representatives as above explained, it seems to give the fullest assurance, that a representative for every thirty thousand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it. PUBLIUS. From the Ne-w York Packet, Tuesday, February 19, 1788. THE FEDERALIST. No. LVH. (HAMILTON OR MADISON.) To the People of the State of New York : The third charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few. Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended 356 THE FEDERALIST. oligarchy, the principle of it strikes at the very root of re- publican government. The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society ; and in the next place, to take the most effect- ual precautions for keeping them virtuous whilst they con- tinue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of govern- ment for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsi- bility to the people. Let me now ask what circumstance there is in the consti- tution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conform- able to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens ? Who are to be the electors of the federal representatives? Not the rich, more than the poor ; not the learned, more than the ignorant ; not the haughty heirs of distinguished names, more than the humble sons of obscurity and un- propitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people. If we consider the situation of the men on whom the free THE FEDERALIST. 357 suffrages of their fellow-citizens may confer the representa- tive trust, we shall find it involving every security which can be devised or desired for their fidelity to their con- stituents. In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle thern to it, and which promise a sincere and scrupulous regard to the nature of their engage- ments. In the second place, they will enter into the public ser- vice under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considera- tions of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature ; and it must be confessed that in- stances of it are but too frequent and flagrant, both in pub- lic and in private life. But the universal and extreme indig- nation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. In the third place, those ties which bind the representa- tive to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring charac- ters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preserva- tion of the favor, than from innovations in the government subversive of the authority of the people. All these securities, however, would be found very insuf- ficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so con- stituted as to support in the members an habitual recoUec- 3S8 THE FEDERALIST. tion of their dependence on the people. Before the senti- ments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised ; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. . I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as' well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can con- nect the rulers and the people together. It creates between them that communion of interests and sympathy of senti- ments, of which few governments have furnished examples ; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society ? I answer : the genius of the whole system ; the nature of just and constitutional laws ; and above all, the vigilant and manly spirit which actuates the people of America — a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. Such will be the relation betweeen the House of Repre- sentatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufificient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can THE FEDERALIST. 359 devise ? Are they not the genuine and the characteristic means by which republican government provides for the hberty and happiness of the people ? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends ? What then are we to understand by the objection which this paper has combated ? What are we to say to the men who profess the most flaming zeal for republican govern- ment, yet boldly impeach the fundamental principle of it ; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and in- fallibly betray the trust committed to them ? Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage ; or that the right of eligibility was limited to persons of particular families or fortunes ; or at least that the mode prescribed by the State constitutions was,- in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable be- tween the two cases is, that each representative of the United States will be elected by five or six thousand citizens ; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. Is it supported by reason ? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a 360 THE FEDERALIST. fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the bribes of the rich. \s ^t. consequence from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the govern- ment does not require as many of them as will amount to one for that number of citizens ? Is the doctrine warranted hy facts? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year ; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suf- frage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the pres- ent rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many. But we need not resort to foreign experience on this sub- ject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immedi- ately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Ma.ssa- chusetts are larger than will be necessary for that purpose ; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New THE FEDERALIST. 36 1 York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calcu- lating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an Additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our pur- pose, the whole city actually elects a single member for the executive council. This is the case in all the other counties of the State. Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration ? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people ? But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the presi- dent of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be 362 THE FEDERALIST. said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the pubhc liberty. PUBLIUS. From the New York Packet, Friday, February 22, 1788. THE FEDERALIST. No. LVIII. (HAMILTON OR MADISON.) To the People of the State of New York : The remaining charge against the House of Representa- tives, which I am to examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand. It has been admitted, that this objection, if well sup- ported, would have great weight. The following observa- tions will show that, like most other objections against the Constitution, it can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld. I. Those who urge the objection seem not to have recol- lected that the federal Constitution will not suffer by a com- parison with the State constitutions, in the security provided for a gradual augmentation of the number of representa- tives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to read- just, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole hmitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no deter- minate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, THE FEDERALIST. 363 and that the most effectual security in any of them is resolvable into a mere directory provision. 2. As far as experience has taken place on this subject, a gradual increase of representatives under the State consti- tutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them. 3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional aug- mentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States : in the former, consequently, the larger States will have most weight ; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the repre- sentatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufificient to overrule the opposi- tion ; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occa- sions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution. It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition ; and as their concurrence would be indispensable, the just and con- stitutional views of the other branch might be defeated. This is the difificulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties 364 THE FEDERALIST. which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point. Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speal&i\dX& jointly, and can therefore only j * Article i, section 3, clause I. — PuBLius. \ip.2l_ THE FEDERALIST. be exercised during the session of the Senate; but as it would have been improper to oblige this body to be con- tinually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the '"■President, singly, to make temporary appointments "during the recess of the Senate, by granting commissions which " shall expire at the en d of their next session." Secondly. /If this clause is to be considered as supplementary to the ' one which precedes, the vacajtcies of which it speaks must be construed to relate to the " officers " described in the preceding one ; and this, we have seen, excludes from its de- scription the members of the Senate. Thirdly. The time '■^withi!rwhich^lTe'pc)werlsT6"operate, " during the recess of the Senate," and the duration of the appointments, " to the end of the next session " of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appoint- ments, and not to the recess of the national Senate, who are to have no concern in those appointments ; and would have extertded the duration in office of the temporary sena- tors! to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the -national Senate. The circumstances of the body author- ized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments ; and as the nationl Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President. But lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but de- THE FEDERALIST. 423 stroy the pretext of misconception. The former provides, that " the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof iov six years " ; and the latter directs, that, " if vacan- cies in that body should happen by resignation or otherwise, during the recess of the legislature of ANY STATE, the Execu- tive THEREOF may make temporary appointments until the next meeting of the legislature, which shall then fill such vacanciesT"^ 4f^re— rs~air'ocpress power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments ; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausi- bility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atro- cious to be palliated by hypocrisy. I have taken the pains to select this instance of misrepre- sentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are prac- tised to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the. consideration of the people. Nor have I scrupled, in so flagrant a case, to allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America. PUBLIUS. From the New York Packet, Friday, March 14, 1788. THE FEDERALIST. No. LXVIII. (HAMILTON.) To the People of the State of New York : The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or 424 THE FEDERALIST. f. w which has received the sHghtest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.* I venture somewhat fur- ther, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for. It was desirable that the sense of the people should oper- ate in the choice of the person to whom so important a trust was to be confided. This end will be answered by commit- htwlP nng the right of making it, not to any preestablished body, ''' •^ but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election ! should be made by men most capable of analyzing the qualities adapted to the station, and acting under circum- stances favorable to deliberation, and to a judicions com- ^ *Ki bination of all the reasons and inducements which were \i^^ [^.proper to govern their choice. A small number of persons, pselected by their fellow-citizens from ^the" general mass, will / be most likely to possess the information and discernment ^requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportu- nity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the -vG' government as the President of the United States. But iJ^ A V the precautions which have been so happily concerted in the g> z' system under consideration, promise an effectual security cC\ against this mischief. The choice of several, to form an in- ^ ' termediate body of electors, will be much less apt to con- vulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State * Vide Federal Farmer. — Publius. THE FEDERALIST. 425 in which they are chosen, this detached and divided situa- tion will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one , place. Nothing was more to be desired than that every practi- cable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican - government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascend- ant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magis- tracy of the Union ? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment^- of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their^otes ; but they have referred it in the first instance I to an~lfflmediate''act~orthe people of America, to be exerted^ in the choice-of-persohs"f or the"tempbrary~and''Sole purposes of mak'ing'fhe'appointnient": ^And~they-have-exduded'^from eligibility~'t6~this~trust,"ainh6se who from situation might be suspected of too great devotion to the President in*: office. No senator, representative, or other person holding ( a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election , will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of cor- ruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be de- 426 THE FEDERALIST. nominated corrupt, might yet be of a nature to mislead them from their duty. Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might other- wise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his ^official consequence. This advantage will also be secured, by making his reelection to depend on a special body of representatives, deputed by the society for the single pur- pose of making the important choice. All these advantages will happily combine in the plan de- vised by the convention ; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the , State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always /happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out, of the candidates who~shall have the five highest number of votes, the man who in their opinion may _ be best qualified for the office. The process of election affords a moralcertainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first V honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a success- ful candidate for the distinguished office of President of the THE FEDERALIST. 42,7 United States. It will not be too strong to say, that there will be a constant probability of seeing tlie station filled by characters preeminent for ability and virtue. And this will be thought no inconsidera,ble recommendation of the Con- stitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says : " For forms of government let fools contest — That which is best administered is best,'" — yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. The Vice-President is to be chosen in the _sa,me jxianner,,; with the President ; with this difference, that the Senate isl to do, in respect to the former, what is to be done by the/i House of Representatives, in respect to the latter. The appointment of an extraordinary person, as Vice- President, has been objected to as superfluous, if not mis- ichievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an ofificer answering that description. But two considerations seem to justify the ideas of the conven- tion in this respect. One is, that to secure at all 'times the possibility of a definite resolution of the body, it is neces- sary that the President should have only a casting vote. And to take the senator of any State from his seat as sena-^ tor, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came,. 1 a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is re- markable that in this, as in most other instances, the objec- 428 THE FEDERALIST. tion which is made would lie against the constitution^bf this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the con- stitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exer- cise the authorities and discharge the duties of the Presi- dent. PUBLIUS. From the New York Packet, Friday, March 14, 1788. THE FEDERALIST. No. LXIX (HAMILTON.) To the People of the State of Nezv York : I proceed now to trace the real characters of the proposed Executive, as they are marked out in the plan of the con- vention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be consid- ered as a point upon which any comparison can be grounded ; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. That magistrate is to be elected for four years ; and is to be reeligible as often as the people of the United States shall think him worthy of their confidence. In these cir- cumstances there is a total dissimilitude between him and a king of Great Britain, who is a.r\^iereditary monarch, pos- sessing the crown as a patrimony descendible to his heirs forever; but there is a riose an a,logy between him s.nd a governor ofNew^York, who is elected for fhree years^and is reeligible without limitation or irrfermissioh." IT we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must con- THE FEDERALIST. 429 .•■/clude'5;thait! a duration of four years for the Chief Magistrate of the Union is a degree of permanency far less -to be dreaded in that office, than a duration of three years for a corresponding office in a single State. The President of the United States would be liable to be impeached, tried, and, upon conviction__Qf_treaso.iv-br-ib.ery, or other high crimes or misdemeanors, removed from office ; and would afterwards be liable to prosecution and punish- ment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable ; there is no constitutional tribunal to which he is amenable ; no punish- ment to which he can be subjected without involving the crisis of a national revolution. In this delicate and impor- tant circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than ;» ^he governors of Maryland and Delaware. ";i;',The President of the United States is to have power to '-"return'^a bill, which shall have passed the two branches of ;•■ theilegislature, for reconsideration ; and the bill so returned is to become a law, if, upon that reconsideration, it be ap- prqved by iwo thirds of both houses. The king of Great Britain, onTiil^2?tph3s=aTrarbsolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence ; and is to be ascribed wholly to the crown's having found the means of substituting influence to author- ity, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some de- gree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign ; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor ■'of New York, because the former would possess, singly, what 430 THE FEDERALIST. the latter shares with the chancellor and judgei would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. —-"Tlie President is to be the " commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment ; to recommend to the consideration of Congress such measures as he shall judge necessary and ex, pedient ; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them ivith respect to the time of ad- journment, to adjourn them to such time as he shall proper ; to take care that the laws be faithfully exec|^3 and to commission all ofiScers of the United States.f'iisjte "most of these particulars, the power of the President -vtrjll.rer semble equally that of the king of Great Britain and fik&i^fe governor of New York. The most material points of differ- ence are these : — First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire com- mand of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be.commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy ; while that of the British ■ king extends to the declaring of war and to the raising an^ THE FEDERALIST. 431. iafjg ^^^'^i f fleets and armies, — all which, by the Constitution undercoSideration, would appertain to the legislature^ The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders- in-chief, as well of the army as navy ; and it may well be a question, whether those of New Hampshire and Massa- chusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, except those of impeachment. The governor of New York may pardon in all cases, even in those of impeach- ment, except for treason and murder. Is not the power of ^hegovemorjin this article, on a calculation of political con- i!.„'H.", wuwiiiiuMMii jgj. (.jj^j-j i\^2Lt of the" President ? All con- ■sSl^cies'aildr^^ts against the government, which have not fe(:p:i3,ttit^Bnto actual treason, may be screened from BiMiie^j'^^very kind, by the interposition of the pre- rogative ofpardoning. If a governor of New York, there- fore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A Presi- dent of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects * A writer in a Pennsylvania paper, under the signature of Tamony, has as- serted that the king of Great Britain owes his prerogative as commander-in- chief to an annual mutiny bill. The truth is, on the contrary, that his pre- rogative, in this respect, is immemorial, and was only disputed, " contrary to all reason and precedent," as Blackstone, vol. i., page 262, expresses it, by the Long Parliament of Charles I.; but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and do- minions, and of all forces by sea and land, and of all forts and places of strengtb, ever was and is the undoubted right of his Majesty and his royal deces sors. kings and queens of England, and that both or either house of ^nt cannot nor ought to pretend to the same. — PUBLIUS. 432 THE FEDERALIST. ' of impeachment and conviction. Would not the -prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an ex- emption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should mis- carry ? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offence of treason is limited " to levying war upon the United States, and adhering to their enemies, giving them aid and com- fort "; and that by the laws of New York it is confine^^,^ within similar bounds. Fourthly. The PresiHenT can' '6'ril^«!; adjourn^tlie national legislature in the single case of dis'#J|rj agreemem about the time of adjournment. The Britishi'';!'; monarch may prorogue or even dissolve the Parliament'J|| The -governor of New York may also prorogue the legisla- ture of this State for a limited time ; a power which, in certain situations, may be employed to very important purposes. The President is to have power, with the advice and con- sent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all for- eign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratifica- tion, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist * of that kingdom, and every other man ac- * Vide Blackstone's " Commentaries," vol. i., p. 257. — PuBLlus.'{^»}j»4$* THE FEDERALIST. 433. quainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plentitude; and that the compacts entered into by the royal authority have the the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty ; and this may have possibly given birth to the imagination, that its cooperation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause : from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this re- spect, therefore, there is no comparison between the in- tended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the\ power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sover- eign power which relates to treaties. If the Confederacy/ were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative. The President is also to be authorized to receive ambassadors and other public misters. This, though it has been a rich theme of declamation, is more a matter of dignity than of i authority. It is a circumstance which will be without con- sequence in the administration of the government ; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of "^ a departed predecessor. 434 ^-^^ FEDERALIST. The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other pub- lic ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Consti- tution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure ; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the consti- tution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a coun- cil, composed of the governor and four members of the Senate, chosen by the Assembly. The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made ; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nom ination.* If we compare the publicity which must neces- sarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and fre- quently with only two persons ; and if we at the same time consider how much more easy it must be to influence the * Candor, however, demands an acknowledgment that I do not think the claim of the governor to a right of nomination well founded. Yet it is..always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their con- sequences, we shall be inclined to draw much the same conclusion. — PuBLIUS. THE FEDERALIST. 435 small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union. Hence it appears that, except as to the concurrent author- ity of the President in the article of treaties, it would be difificult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretence for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. iThe President of the United States would be an officer elected by the people for four years ; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace ; the per- son of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body ; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation ; the other, in addition to this right, possesses that of declaring vfa.r, and of raising and regulating ^eets and armies by his own authority. The one would have a concur- rent power with a branch of the legislature in the formation of treaties ; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices ; the other is the sole author ef all appointments. The one can confer no privi- lege^%vhatever : the other can make denizens of aliens, noWmnen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation ; the other is in several respects the arbiter of commerce, and 436 THE FEDERALIST. in this capacity can establisli markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdic- tion ; the other is the supreme head and governor of the national church ! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective a'nd periodical servants of the people, is an aristocracy, a monarchy, and a despotism. PUBLIUS. From the New York Packet, Tuesday, March 18, 1788. THE FEDERALIST. No. LXX. / (HAMILTON.) To the People of the State of New York : , There is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of re- publican government. The enlightened well-wishers to this species of government must at least hope that the suppo- sition is destitute of foundation ; since they can never admit its truth, without at the same time admitting the condemna- tion of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks ; it is not less essential to the steady admin- istration of the laws ; to the protection- of property against those irregular and high-handed combinations which some- times interrupt the ordinary course of justice ; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversan^l^^ Roman story, knows how often that republic was <|^^ed to take refuge in the absolute power of a single man, MnSP^ the formidable title of Dictator, as well against the intrffiKg of ambitious individuals who aspired to the tyranny^ and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the THE FEDERALIST. ' 437 invasions of external enemies who menaced the conquest and destruction of Rome. ' '■ ' There can be no need, however, to multiply arguments or examples on this head. A feeble Executive implies a feeble execution of the govenjjafnt.^ ATeeble execufron""Is'mIt another phrase for a bad execution ; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention ? The ingredients which constitute energy in the Executive'' are, first, unjty ; secondly, duratio n ; thirdly, an adeq uate provision for its support ; fourthly, competent powers. v?S The ingredients which constitute safety in the republican sense are, first, a due dependence on the people ; secondly, a due responsibility. ^ Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Ex- ecutive and a numerous legislature. They have, with great'' propriety, considered energy as the most necessary qualifica- tion of the former, and have regarded this as most applicable to power in a single hand ; while they have, with equal'^pro- priety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests. That unity is conducive to energy will not be disputed.. Decision, activity, secrecy, and despatch will generally char- acterize the proceedings of one man in a much more eminent degree than the proceedings of any greater, number ; and in proportion as the number is increased, these qualities will be diminished. ' . 438 THE FEDERALIST. This unity may be destroyed in two ways : either by vest- ing the power in two or more magistrates of equal dignity and authority ; or by vesting it ostensibly in one man, sub- ject, in whole or in part, to the control and cooperation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example ; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men.* Both these methods of destroying the unity of the Executive have their partisans ; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in con- junction. h The experience of other nations will afford little instruc- ^tion on this head. As far, however, as it teaches any thing, it teaches us not to be enamoured of plurality in the Execu- tive. We have seen that the Achseans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities ; the Consuls, who were generally chosen out of * New York has no council except for the single purpose of appointing to offices ; New Jersey has a council whom the governor may consult. But I think, from the terms of the constitution, their resolutions, do not bind him. — PUBLIUS. THE FEDERALIST. 439 the former body, were commonly united by the personal in- terest they had in the defence of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot — one of them remaining at Rome to govern the city and its en- virons, the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic. But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any com- mon enterprise or pursuit, there is always danger of differ- ence of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and dis- tract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magis- tracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the com- munity into the most violent and irreconcilable factions, ad- hering differently to the different individuals who composed the magistracy. Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have 440 THE FEDERALIST. been consulted, and have happened to disapprove, opposi- tion then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what des- perate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melan- choly proofs of the effects of this despicable frailty, or rather detestable vice, in the human character. Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be sub- mitted to in the formation of the legislature ; but it is un- necessary, and therefore unwise, to introduce them into the constitution of the Exe£uti\t§j^ It is here too that they may ■--ba4nj3st_pexniciou5.-'--^n the le;;;islature, promptitude of de- cision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circum- spection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive depart- ment. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition, — vigor and expedition, and this without any counterbalancing THE FEDERALIST. 44.I good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality. It must be confessed that these observations apply with principal weight to the first case supposed — that is, to a plurality of magistrates of equal dignity and authority, a scheme, the advocates for which are not likely to form a numerous sect ; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the opera- tions of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness. But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsi- bility. Responsibility is of two kinds — to censure and to punishment. The first is the more important of the two,^ especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him un- worthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the dflSculty of detection in either case. It often becomes impossible,~^^ amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there 442 THE FEDERALIST. has been mismanagement, yet it may be impracticable to pro- nounce to whose account the evil which may have been incurred is truly chargeable. " I was overruled by my council. The council were so divided in their opinions, that it was impossible to obtain any better resolution on the point."' These and similar pre- texts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction ? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties ? In the single instance in which the governor of this State is coupled with a council — -that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination ; while the people remain altogether at a loss to determine, by whose iniiuence their interests have been committed to hands so unqualified and so manifestly improper. In ten- derness to individuals, I forbear to descend to particulars. It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of ^any delegated power, first, the restraints of public opin- ion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall ; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they THE FEDERALIST. 44.3 trust, in order either to their removal from office, or to their actual punishment in cases which admit of it. In England, the king is a perpetual magistrate ; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred. Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department — an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable' for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion. But in a republic, wher^ every magistrate ought to be personally responsible for his behavior in office, the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the insti- tution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American re- public, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magis- trate himself. The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been de- rived from that maxim of republican jealousy which con- siders power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disad- vantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the cele- brated Junius pronounces to be " deep, solid, and ingenious," 444 THE FEDERALIST. that " the executive power is more easily confined when it p" is ONE " ; ■* that it is far more safe there should be a single \ object for the jealousy and watchfulness of the people ; and, ', in a word, that all multiplication of the Executive is rather - dangerous than friendly to liberty. A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is unattainable. Numbers must be so great as to render com- bination difficult, or they are rather a source of danger than of security. The united credit and influence of several in- dividuals must be more formidable to liberty, than the credit and influence of either of them separately. When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man ; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number,f were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that : i; body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy .combination ; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good inten- tions, are often the instruments and acccomplices of his bad, and are almost always a cloak to his faults. I forbear to dwell upon the subject of expense ; though it be evident that if the council should be numerous enough to answer the principal end aimed, at by the institution, the * De Lolme. — PuBLius. •'f Ten. — Publius. THE FEDERALIST. 445 salaries of tlie members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. PUBLIUS. From the New York Packet, Tuesday, March 18, 1788. THE FEDERALIST. No. LXXI. (HAMILTON.) To the People of the State of New York : Duration in ofifice has been mentioned as the second req- uisite to the energy of the Executive authority. This has relation to two objects : to the personal firmness of the ex- ecutive magistrate, in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the probability of ob- taining so important an advantage. It is a general principle^ of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it ; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title ; and, of course, will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to - a political privilege, or honor, or trust, than to any article of ordinary property. The inference from it is, that a man acting in the capacity of chief magistrate, under a conscious- ness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard 446 THE FEDERALIST. any material censure or perplexity, from the independent exertion of his powers, or from encountering the iil-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predomi- nant faction in the legislative body. If the case should only be, that he might lay it down, unless continued by a new choice, and if he should be desirous of being continued, his wishes, conspiring with his fears, would tend still more powerfully to corrupt his integrity, or debase his fortitude. In either case, feebleness and irresolution must be the char- acteristics of the station. There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happi- ness may be promoted. The republican principle demands that the deliberate sense of the community should govern] / the conduct of those to whom they intrust the management of their affairs ; but it does not require an unqualified com- plaisance to every sudden breeze of passion, or to evei'y transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they 2X^1 2.y?, reason right about the means of promoting it. They know from experience that they sometimes err ; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty THE FEDERALIST. 44/ of the persons whom they have appointed to be the guar- dians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for mtore cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure. But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclina- tions of the people, we can with no. propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision. The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, .if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such asepa-^ ration must be merely nominal, and incapable of producing j the ends for which it was established. It is one thing to be I subordinate to the laws, and another to be dependent on the J legislative body. The first comports with, the last violates, the fundamental principles of good government; and, what- ever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative author- j ity to absorb every other, has been fully displayed and \ illustrated by examples in some preceding .numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popu- lar assembly, seem sometimes to fancy that they are the 448 THE FEDERALIST. people themselves, and betray strong symptoms of impa- tience and disgust at the least sign of opposition from any other quarter ; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments ; and as they commonly have the people on their side, they always act v/ith such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution. It may perhaps be asked, how the shortness of the dura- tion in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already re- marked — that is, from the slender interest a man is apt to take in a'short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any con- siderable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people ; which might be employed to prevent the reelection of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment. It may be asked also, whether a duration of four years would answer the end proposed ; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was, at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited, duration, would completely answer the end proposed ; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement THE FEDERALIST. 449 and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man indued with a tolerable portion of fortitude ; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were,, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline ; yet both the one and the other would derive support from the opportunities which his previous continu- ance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute 1 to the firmness of the Executive in a sufficient degree to ■ render it a very valuable ingredient in the composition ; so, '• on the other, it is not enough to justify any alarm for the ' public liberty. If a British House of Commons, from the~^ most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privi- leges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of a co- equal branch of the legislature ; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State ; if they have been able, on a recent occa- sioiS, to make the monarch tremble at the prospect of an innovation * attempted by them, what would be to be * This was tlie case with respect to Mr. Fox's India bill, which was carried in the House of Commons, and' rejected in the House of Lords, to the entire sat' isfaclion, as it is said, of the people. — PuBLlus. 4SO TBE FEDERALIST. feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States ? What, but that he might be unequal to the task which the Constitution assigns him ? I shall only add, that if his duration be such as to. leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroach- ments. PUBLIUS. From the Neia York Packet, Friday, March 21, 1788. THE FEDERALIST. No. LXXII. (HAMILTON.) To the People of the State of New York : The administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary ; but in its most usual and perhaps in its most precise signification, it is limited to ex- ecutive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the direction of the operations of war, — these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immedi- ^ate management these different matters are committed, fought to be considered as the assistants or deputies of, the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomina- tion, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert ; and in addition to this propen- THE FEDERALIST. 451 sity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of, his predecessor has proceeded from a dislike to his measures ; and that the less he resembles him, the more he will recommend himself to the favor of his con- stituents. These considerations, and the influence of per- sonal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations ; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. With a positive duration of considerable extent, I connect the circumstance of reeligioility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is neces- sary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration. Nothing appears more plausible at first sight, nor more ill- founded upon close inspection, than a scheme which in rela- tion to the present point has had some respectable advo- cates, — I mean that of continuing the chief magistrate in ofifice for a certain time, and then excluding him from it^_ either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. One ill effect of the exclusion would be a diminution of_ the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty, when they were conscious that the advantages of the station with which it was connected must be relinquished at a de- terminate period, than when they were permitted to enter- ^ THE FEDERALIST. tairi a hope of obtaining, hy meriting, a continuance of them. This position will not be disputed so long as it is admitted that the desire of rewaFdTs~orie"oFtEe.^ongestjncentives of hum aircon3ucrr"oiTHaQheJa££L-Sfi£ud,ty-fi3J^ ty_o f _ mankinds to make their interest coincide with their dut)'. Even Thfe love'TDTTame, The ruling passiorTo'f'the^TrerbtSffr' minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, re- > quiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. Another ill effect of the exclusion would be the temp- tation to sordid views, to peculation, and, in some in- stances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he en- joyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory ; though the same man, probably, with a different prospect before him, might con- tent himself with the regular perquisites of his situation, and might even be unwiUing to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an THE FEDERALIST. 453. inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition. An ambitious man, too, when he found himself seated on the summit of his country's honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on ' his part could save him from the unwelcome reverse ; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty. Would it promote the peace of the community, or the stability of the government to have half a dozen men who ,: had had credit enough to be raised to the seat of the supreme " magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess ? A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained /x by the chief magistrate in the exercise of his office. That / experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of \ mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation ? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted ? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellow-citizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. A fourth ill effect of the exclusion would be the banishingy^ men from stations in which, in certain emergencies of the \ 454 7'-^^ FEDERALIST. estate, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute neces- ■ sity of the services of particular men in particular situations ; perhaps it would not be too strong to say, to the preserva- tion of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances ! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration. A fifth ill effect of the exclusion would be, that it would /operate as a constitutional interdiction of stability in the ad- ministration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of J measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the "Usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the peo- ple from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy. These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion ; but when we con- sider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other. What are the advantages promised to counterbalance these disadvantages? They are represented to be: ist. THE FEDERALIST. 45 S greater independence in the magistrate ; 2d, greater secu- rity to tlie people. Unless the exclusion be perpetual, there will be no pretence to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence ? May he have no connections, no friends, for whom he may sacri- fice it ? May he not be less willing, by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing ? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion- were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain appre- hension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and preeminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to con- sider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a-perpetuation in ofifice, by the voluntary suffrages of the community, exercising a constitutional privilege. There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled them- selves, in their opinion, to approbation and confidence ; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. PUBLIUS. 456 THE FEDERALIST. From the New York Packet, Friday, March 21, 1788. THE FEDERALIST. No. LXXIIL (HAMILTON.) To the People of the State of New York : The third ingredient towards constituting the vigor of the executive authority, is an adequate provision for its sup- port. It is evident that, without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. These expressions, taken in all the latitude of the terms, would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty ; but this' stern virtue is the growth of few soils ; and in the main it will be found that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimidation or seduction of the Executive by the terrors or allurements of the pecuniary arrangements of the legislative body. It is not easy, therefore, to commend too highly the judi- cious attention which has been paid to this subject in the proposed Constitution. It is there provided that " The President of the United States shall, at stated times, receive for his service a compensation which shall neither be increased nor diminished during the period for which he shall have been elected ; and he shall not receive within that period any other emolument from the United States, or any of them." It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the THE FEDERALIST. 45/ compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolu- ment than that which may have been determined by the the first act. He can, of course, have no pecuniary induce- ment to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to con- sider those which are proposed to be vested in the President of the United States. The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolu- tions of the two houses of the legislature ; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body. The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other depart- ments, has been already suggested and repeated ; the insuffi- ciency of a mere parchment delineation of the boundaries of each, has also been remarked upon ; and the necessity of furnishing each with "'"niltil"lit''""?>l nrm" for its own defencef has been inferred and proved. From these clear and indu- bitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the 458 THE FEDERALIST. other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity- had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self- defence. But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an addi- tional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calcu- lated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men ; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legisla- ture will not be infallible ; that the love of power may some- times betray it into a disposition to encroach upon the rights of other members of the government ; that a spirit of faction may sometimes pervert its deliberations ; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the ^ Executive is, to enable him to defend himself; the secondary \one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under exami- THE FEDERALIST. 459 nation, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the'govern- ment at the same moment and in relation to the same ob- ject, than that they should by turns govern and mislead every one of them. It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and maybe used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the charac- ter and genius of our governments. They will consider every institution calculated to restrain the excess of law-makins, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm ; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compen- sated by the advantage of preventing a number of bad ones. Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a sat- isfactory security that the negative would generally be em- ployed with great caution ; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attri- butes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament. He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of per- mitting it to take effect, or of risking the displeasure of the 460 THE FEDERALIST; nation by an opposition to the sense of the legislative body. Nor is it probable, that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or ex- treme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised. If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power linder consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican .? It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often,- or too much. An argument, indeed, against its ex- pediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evi- dently and palpably scrificed, a man of tolerable firmness would avail himself of his constitutional means of defence, and would listen to the admonitions of duty and responsi- bility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his ofifice ; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men who, under any circum- stances, will have the courage to do their duty at every hazard. THE FEDERALIST. 461 But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is pro- posed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to' return it for reconsideration ; subject to being finally rejected only in the event of more than one third of each house con- curring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objec- tions to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised ; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time ; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and con- duct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. 462 THE FEDERALIST. This qualified negative, as has been elsewhere remarked, is in this State vested in a council, consisting of the gover- nor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in com- piling the Constitution, were violent opposers of it, have from experience become its declared admirers.* I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capaci- ties ; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous com- bination might by degrees be cemented between the ex- ecutive and judiciary departments. It is imposssible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive. PUBLIUS. From the Ne-uj York Packet^ Tuesday^ March 25, 1788. THE FEDERALIST. No. LXXIV. (HAMILTON.) To tlie People of the State of New York : The President of the United States is to be "commander- in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." The propriety of this pro- vision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in *Mr. Abraham Yates, a warm opponent of the plan of the convention, is of this number. — PuBLius. THE FEDERALIS7\ 463 general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength ; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. " The President may require the opinion, in writing, of the? principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office. He is also to be authorized to grant " reprieves and par- dons for offences against the United 'iVsX&s,, except in cases of impeachment y Humanity and good policy conspire to dic- tate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt) justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a -fit object of its vengeance. The re- flection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution ; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in 464 THE FEDERALIST. an act of obduracy, and might be less sensible to the ap- prehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of govern- Anent, than a body of men. / The expediency of vesting the power of pardoning in the ^President has, if I mistake not, been only contested in rela- tion to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particu- lar the concurrence of that body, or of a part of it. As trea- son is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offend- er, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate con- junctures, to balance the motives which may plead for and against the remission of the punishment, than any nu- merous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community ; as lately hap- pened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offence. And when par- ties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was neces- sary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbear- THE FEDERALIST. 465 ance and clemency. But the principal argument for re- posing the power of pardoning in this case to the Chief Magistrate is this : in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquil- lity of the commonwealth ; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, oi" one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting shp the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law ; and in the second place, that it would generally be im- politic beforehand to take any step which miglit hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. PUBLIUS. For the Independent jFournal. THE FEDERALIST. No. LXXV. (HAMILTON.) To Ihe People of the State of New York : The President is to have power, " by and with the advicd and consent of the Senate, to make treaties, provided t^ya thirds of the senators present concur." ' Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers : some contending that the President ought alone to possess the power of making treaties ; others, that it ought to have 466 THE FEDERALIST. been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Represen- tatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of all the members of the Senate, to two thirds of the members present. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated. With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded ; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently sin arbitrary disposition ; for if we attend carefully to its opera- tion, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to eiiaft laws, or, in othery words, to prescribe rules for the regulation of the society'; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects THE FEDERALIST. ' 467 are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct depart- ment, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those trans- actions ; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the partici- pation of the whole or a portion of the legislative body in the office of making them. However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to com- mit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been re- marked, upon another occasion, and the remark is unques- tionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being cor- rupted by foreign powers. But a man raised from the sta- tion of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, / might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid. of a foreign power, the price of his treachery to his con- stituents. The history of human conduct does not warrant '' that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and mo- mentous a kind, as those which concern its intercourse with 468 THE FEDERALIST. the rest of the. world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. To have irkjrusted the power of making treaties to the •Senate alone, wcTtrid have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in if> that case, have the option of employing him in this capacity, -? but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the for- mer. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efihcacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the cooperation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity. The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Rep- \ \\ resentatives to a share in the formation of treaties. The )[ fluctuating and, taking its future increase into the account, I j the multitudinous composition of that body, forbid us to ■; THE FEDERALIST. 469 expect in it those qualities which are essential to the proper execution of such a trust. Accurate and compreh&nsive knowledge of foreign politics ; a steady and systematic^ adherence to the same views ; a nice and uniform sensibility to national character ; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by intro- ducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be neces- sary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project. The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolu- tions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the conven- tion have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the commu- nity. If two thirds of the whole number of members had been required, it would, in many cases, from the non- attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establish- ment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribune- ship, the Polish Diet, and the States-General of the Nether- 470 THE FEDERALIST. lands, did not an example at home render foreign precedents unnecessary. To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better than merely to require a proportion of the attending members. The former, by making a deter- minate number at all times requisite to a resolution,* diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a propor- tion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promot- ing punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confeder- ation, two members may, and usually do, represent a State; whence it happens that Congress, who now are solely invested with all the powers of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a suppo- sition that the active voices in the Senate, where the mem- bers are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the cooperation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the * In the revised text : " The former, by increasing the difficulty of resolu- tions disagreeable to the minority." THE FEDERALIST. 47 1 members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust. PUBLIUS. From the New York Packet, Tuesday, April i, 17S8. THE FEDERALIST. No. LXXVI. (HAMILTON.) To the People of the State of New York : The President is " to nominate, and, by and with the ad- vice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose ap- pointments are not otherwise provided for in the Constitu- tion. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of depart- ments. The President shall have power to fill up all vacan- cies which may happen_ during the recess of the Senate, by granting commissions which shall expire at the end of their next session." > It has been observed in a former paper, that " the true test of a good government is its aptitude and tendency to produce a good administration." If the justness of this ob- servation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses, must, when examined, be allowed to be entitled to particular commendation. It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union ; and it will not need proof, that on this point must essentially depend the charac- ter of its administration. It will be agreed on all hands, that the power of appoint- ment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a select assembly of a moderate number ; or in a single man, 472 THE FEDERALIST. with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be im- practicable ; as waiving every other consideration, it would leave them little time to do any thing else. When, there- fore, mention is made in the subsequent reasonings, of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the descrip- tion already given. The people collectively, from their number and from their dispersed situation, cannot be regu- lated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men. Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the Presi-^ dent, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discern, ment is better fitted to analyze aijd estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact re- gard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investi- gate with care the qualities requisite to the stations tq be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will \^zm& fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which fre- quently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of THE FEDERALIST. 473 mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices by an assembly of men, we must ex- pect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assem- bly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a com- promise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best- adapted to uniting the suf- frages of the party, will be more considered , -than those which fit the person for the station. In the last, the coali- tion will commonly turn upon some interested equivalent : " Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condi- tion of the bargain. And it will rarely happen that the ad- vancement of the public service will be the primary object either of party victories or of party negotiations. The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the con- vention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every ad- vantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him ; while several disad- vantages which might attend the absolute power of appoint- ment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised ; and as it would be his sole duty to point out the man who, with' the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no differ- 474 "^^^ FEDERALIST. J ence between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man cauld be ap- pointed but on his previous nomination, every man who might be appointed would be, in fact, his choice. But might not his nomination be overruled ? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nom- ination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed ; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomina- tion. They could not even be certain, that a future nom- ination would present a candidate in any degree more acceptable to them ; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and inde- Tin-: l-EDEKAUST. 475 pendent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputa- tion, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbe- coming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly be- longed, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. . To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venality in human nature is little less an error in political reasoning, than the supposition of universal recti- tude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence ; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt govern- ments. The venality of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong, as well as in this ; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which con- sists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inchnations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive 476 THE FEDERALIST. might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and im- probable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be im- practicable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its cooperation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Consti- tution has provided some important guards against the danger of executive influence upon the legislative body : it declares that " No senator or representative shall, during the time/i^r which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been in- creased, during such time ; and no person, holding any office under the United States, shall be a member of either house during his continuance in office." PUBLIUS. Front the New York Packet, Friday, April ^, 1788. THE FEDERALIST. No. LXXVII. (HAMILTON.) To the People of the State of New York : It has been mentioned as one of the advantages to be expected from the cooperation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole dis- poser of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President' would be restrained from attempting a change in favor of a THE FEDERALIST. 477 person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or , disapprobation of that body which, from the greater perma- nency of its own composition, will in all probability be ; less subject to inconstancy than any other member of the government. To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence j/* over the Senate, and in others that it would have an opposite tendency, — a strong proof that neither suggestion is true. To state the first in its proper form, is to refute it. It amounts to this : the President would have an improper influence over the Senate, because the Senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appoint- ment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomination subject to their control. Let us take a view of the converse of the proposition : ' the Senate would influence the Executive." As I have had occasion to remark in several other instances, the indis- tinctness of the objection forbids a precise answer. In what manner is this influence to be exerted ? In relation to what objects ? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different con- duct, I answer, that the instances in which the President 478 THE FEDERALIST. could be personally interested in the result, would be too few to admit of his being materially affected by the compli- ances of the Senate. The POWER which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant restraining him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appoint- ment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Execu- tive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety ; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate ; ag- gravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace. The reverse of all this characterizes the manner of appoint- ment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apart- ment, impenetrable to the pubHc eye, proceed to the execu- THE FEDERALIST. 479 tion of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution ; but it is not known to what extent, or in wliat manner he exercises it ; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncer- tainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an un- bounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination ; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meet- ing in such a marmer as to render their attendance incon- venient ; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made. Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate and important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of per- sonal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted', will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man 480 THE FEDERALIST. might easily be satisfied ; but to satisfy the private attach- ments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the govern- ment in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of ofifices, there was to be a frequent change in the persons who were to com- pose the council, this would involve the mischiefs of a muta- ble administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distri- bution of public honors, a decrease of stability in the admin- istration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution. I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Represen- tatives in the power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the ex- ercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may con- sist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and em- barrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea. THE FEDERALIST. 48 1 The only remaining powers of the Executive are compre- hended in giving information to Congress of the state of the Union ; in recommending to their consideration such meas- ures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions ; in adjourning them when they cannot themselves agree upon the time of adjournment ; in receiving ambassadors and other public ministers ; in faithfully executing the laws ; and in commis- sioning all the officers of the United States. Except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. Itrequired, indeed, an i'iisatiabl£,jividity for censure to invent exceptions^foTKe" parts which have been excepted to^ In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. As this body has a concur- rent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer. We have now completed a survey of the structure and powers of the executive department, which, I have efideav- ored to show, combines, as far as republican principles will admit, all the requis ites to energy. The remaining inquiry is : Does it also combme tJie requisites to safety, in a re- publican sense, — a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances ; from the election of the President once in four years by persons immediately chosen by the people for that pur- pose ; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, 482 THE FEDERALIST. and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the conven- tion has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the con- trol of a branch of the legislative body. What more could be desired by an enlightened and reasonable people } PUBLIUS. From McLean's Edition, New York, M.DCC.LXXXVIII. THE FEDERALIST. No. LXXVIII. (HAMILTON.) To the People of the State of New York : We proceed now to an examination of the judiciary de- partment of the proposed government. In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed ; the only ques- tions which have been raised being relative to the manner of constituting it, and to its extent. To these points, there- fore, our observations shall be confined. The manner of constituting it seems to embrace these several objects : 1st. The mode of appointing the judges. 2d. The tenwre by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other. First. As to the mode of appointing the judges ; this is the same with that of appointing the officers of the Union Jn general, and has been so fully discussed in the two last /lumbers, that nothing can be said here which would not be useless repetition. Second. As to the tenure by which the judges are to \iold their places : this chiefly concerns their duration in THE FEDERALIST. 483 office ; the provisions for their support ; the precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavio7- ; which is conformable to the most approved of the State constitutions, and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good be- havior for the continuance in office of the judicial magis- tracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a mon- archy it is an excellent barrier to the despotism of the prince ; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each otlMtr, the judiciary, from the nature of its functions, will always be the least dangerous^toj the political rights of the Constitution,; because it will jjg^ least in a capacity to annoy or injure them.- The Execu- tive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse ; no direction either of the str.ength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment ; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important 484 THE FEDERALIST. consequences. It proves incontestably, that the judiciary is beyond comparison the weakest^ciLthe three departments of power* ; that it can never attack with success either of the iother two ; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the generaLliberty of the people can never be endangered from that quarter ; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that " there is no liberty, if the power of judging be not separated from the legislative and executive powers." f And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments ; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation ; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being over- powered, awed, or influenced by its coordinate branches ; and that as nothing can contribute so much to its firmness and independence as perm^iency in ofifice, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain speci- fied exceptions to the legislative authority ; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary * The celebrated Montesquieu, speaking of them, saj's : " Of the three powers above mentioned, the judiciary is next to nothing." — " Spirit of Laws," vol. i., page 186. — PuBLlus. ■j- Idem, page 181. — PuBLIUs. THE FEDERALIST. 485 to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. , Some perplexity respecting the rights of the courts to pro- nounce legislative acts void, because contrary to the Consti- tution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great im- portance in all the American constitutions, a brief discussion of the ground on which it rests cannot jje unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal ; that the servant is above his master; that the representatives of the people are supe- rior to the people themselves ; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the con^ struction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the. natural presumption, where it is not to be collected from any particular provisions, in the Constitution. It is not other- wise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental 486 THE FEDERALIST. law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred ; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superior- ity of the judicial to the legislative power. It only supposes that the power of the people is superior to both ; and that where the will of the legislature, declared in its statutes, standsja opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather^than,the former. They ought to regulate their deci- siapr'by the fundamental laws, rather than by those which are not fundamental. This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes ex- isting at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done ; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for deter- mining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not en- joined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of THE FEDERALIST. 487 an equal authority, that which was the last indication of its will should have the preference. But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subse- quent act of an inferior and subordinate authority ; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pre- tence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes ; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law ; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substi- tution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. /•~Ii, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative en- croachments, this consideration will afford a strong argu- ^ ment for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and 488 THE FEDERALIST. serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,* in questioning that fundamental principle of republican government, which ad- mits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momen- tary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the exist- ing Constitution, would, on tha^ account, be justifiable in a violation of those provisions ; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the estab- lished form, it is binding upon themselves collectively, as well as individually ; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essen- tial safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citi- zens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It ^ not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them ; who, per- » Vide " Protest of the Minority of the Convention of Pennsylvania,'' Mar- tin's Speech, etc. — PuBLins. THE FEDERALIST. 489 ceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits, of the integrity and moderation of the judiciary have already been felt in more States than one ; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the 'esteem and applause of all the virtuous and disinterested. Con- siderate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts ; as no man can be sure that he may not be to-morrow the vic- tim of a spirit of injustice, by which he may be a gainer to- day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead univer- sal distrust and distress. That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be in- dispensable in the courts of justice, can certainly not be ex- pected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper com- plaisance to the branch which possessed it ; if to both, there would be an unwillingness to hazard the displeasure of either ; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws. There is yet a further and a weightier reason for the \y permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been 490 THE FEDERALIST. frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily con- nected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every par- ticular case that comes before them ; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very consider- able bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have suffi- cient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the gov- ernment can have no great option between fit character ; and that a temporary duration in ofifice, which would natu- rally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a ten- dency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear ; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject. Upon the whole, there can be no room to doubt that the ConYeridon_acteji__wisely_.in_copying_from_the_ models of those constitutions_which_ have established good behavior as the tenure of their judicial offices, in point of duration ; and that so far from being blamable on this account, tTieir plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience THE FEDERALIST. 49 1 of Great Britain affords an illustrious comment on the ex- cellence of the institution. PUBLIUS. From McLean's Edition, New York, M.DCC.LXXXVIII. THE FEDERALIST. No. LXXIX. (HAMILTON.) To the People of the State of New York : Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provi- sion for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man s subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good gov- ernment in every State, have seen cause to lament the want of precise and explicit precautions in the State constitu- tions on this head. Some of these indeed have declared that permanent * salaries should be established for the judges ; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and un- equivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States " shall at stated times receive for their services a compensation which shall not be diminished dur- ing their continuance in office." This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extrava- gant to-day, might in half a century become penurious and * Kjflfe " Constitution of Massachusetts," chapter 2, section I, article 13. — PUBLIUS. 492 THE FEDERALIST. inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in con- formity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehen- sion of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The V salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into ofifice, in respect to him. It will be observed that a differ- ence has been made by the convention between the com- pensation of the President and_pLthe..judges. Thatja-f-the forme£_can_neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the differerfce~in~t]ie~duratian of the respective ofiSces^. As fHePresident is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with^egard tq_the judges, who, if they behave properly,^wilLbe. secured, in_.their_places for life, it may well happen, especially in theearly stages of the gov- ernment, that a_stipend,.which_wauld_be,very sufficient at their first appointment,,would become^too small irLthe prog- ress of their service. This provision for the support of the. judges bears every mark__pf_prudence--and efificacy ;-- and Jt_may_be_saf ely af- firmed, that, together with the permanent tenure of their offices, it affords a better_prpspect_of_ their independence than is discoverable in the constitutions of any of the States in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representa- tives, and tried by the Senate ; and, if convicted, may be THE FEDERALIST. 493 dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges. The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practised upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party at- tachments and enmities than advance the interests of justice or the public good. The result, except in the case of in- sanity, must for the most part be arbitrary ; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a par- ticular age as the jzriterion o j-inabilitv. No man_can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in rela- tion to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it ; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to con- clude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will 494 THE FEDERALIST. be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench. PUBLIUS. Ftom McLean's Edition, New Vor/.-. M.DCC.LXXXVIII. THE FEDERALIST. No. LXXX. (HAMILTON.) To the People , of the State of Nezv York : To judge with accuracy of the proper extent of the fed- eral judicature, it will be necessary to consider, in the first place, what arc its proper objects. It seems scarcely to admit of controversy, that the judici- ary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation ; 2d, to all those which concern the execution of the provisions ex- pressly contained in the articles of Union ; 3d, to all those in which the United States are a party ; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States. them- selves ; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction ; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased. The fii'st point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for in- stance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them ? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the THE FEDERALIST. 495 emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention pref- erable to the former, and, I presume, will be most agreeable to the States. As to the second point, it is impossible, by any argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legisla- tive, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, de- cides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed. " Still less need be said in regard to the third point. Con- troversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum. The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PAR'?. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perver- sion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the 496 THE FEDERALIST. preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of con- troversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are con- cerned to the national tribunals. The power of determining causes between two States, between one State and the citizens of another, and be- tween the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century ; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body. A method of terminating territorial disputes between the States, under the authority of the federal head, was not un- attended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from THE FEDERALIST. 497 which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control. It may be esteemed the basis of the Union, that " the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in \yhich one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded. The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally de- pend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations 498 THE FEDERALIST. which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction. The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of contro- versies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government. Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend " all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambas- sadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; be- tween citizens of the same State claiming lands and grants of different States ; and between a State or the citizens THE FEDERALIST. 499 thereof and foreign states, citizens, and subjects." This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detaih It is, then, to extend : First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corre- sponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by " cases arising under the Constitution," in contradistinction from those " arising under the laws of the United States"? The differ- ence has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money ; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emitted, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary sig- nification of the terms. This may serve as a sample of the whole. It has also been asked, what need of the word " equity" ? What equitable causes can grow out of the Constitution and laws of the United States ? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardsliip, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and estab- lished in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains : these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be im- 500 THE FEDERALIST. possible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction. Agreements to con- vey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and techni- cal distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day's practice. The judiciary authority of the Union is to extend : Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace. Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts. Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes. Fifth. To controversies between two or more States ; between a State and citizens of another State ; between citizens of different States. These belong to the fourth of those classes, and partake, in some measure, of the nature of the last. Sixth. To cases between the citizens of the same State, claiming lands under grants of different States. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State. Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been showrt to be, in a peculiar manner, the proper subjects of the national judicature. THE FEDERALIST. 501 From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to pre- scribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. PUBLIUS. From McLean's Edition, New York, M.DCC.LXXXVIII. THE FEDERALIST. No. LXXXI. (HAMILTON.) To the People of the State of New York : Let us now return to the partition of the judiciary author- ity between different courts, and their relations to each other, " The judicial power of the United States is " (by the plan of the convention) " to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."* That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be con- tested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other ca.ses. The very men who object to the Senate as a court * Article 3, sec. I. — PuBLIUS. 502 THE FEDERALIST. of impeachments, on the ground of an improper intermixture of powers, advocate, by impHcation at .least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. The arguments, or rather suggestions, upon which this charge is founded, are to this effect : " The authority of the s proposed Supreme Court of the United States, which is to •Abe a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of , L^rds, which is a branch of the legislature ; and this part of the British government has been imitated in the State con- stitutions in general. The ParHament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in theplan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, how- ever, that the Constitution ought to be the standard of con- struction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circiimstance peculiar to the plan of the convention, but from the general theory of a limited Constitution ; and as far as it is true, is equally applicable to most, if not to all the State govern- ments. There can be no objection, therefore, on this ac- THE FEDERALIST. 503 count, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to con- demn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court ; in its being composed of a distinct body of magistrates, in- stead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored toannex to the celebrated maxim, requiring a separation of the departments of power. - It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in, the course of these papers, that it is not violated by vesting the ultimate power of judging in s. part of the legislative body. But though this be not an absolute violation of that excel- lent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. F^rom a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them ; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determina- tion of causes, in the first instance, to judges of permanent stari^ding ; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in sub- jecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same ad- 504 THE FEDERALIST. vantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges ; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on op- posite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the conventibn, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Penn- sylvania, Delaware, .Maryland, Virginia, North Carolina, South Carolina, and Georgia ; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or. the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case ; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as THE FEDERALIST. 50$ to the national government now under consideration. Not the least difference can be pointed out in any view lof the subject. •/ It may in the last place be observed that the supposed danger of judiciaiy encroachments on the legislative au- thority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and con- traventions of the will of the legislature may now and then happen ; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consid- eration of the important constitutional check which the power of instituting impeachments in one part of the legis- lative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for"consti- tuting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the ob- jections to the distinct and independent organization of the Supreme Court, I proceed to consider the pro- priety of the^power of constituting inferior courts,* and * This power lias been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO th:'. SUPREME CouRT " ; and the evident design of the provision 5o6 THE FEDERALIST. the relations which will subsist between these and the former. The power of constituting inferior courts is evidently- calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to in- stitute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits. But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts ? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much " to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts ? There are, in my opinion, sub- stantial reasons against such a provision : the most discern- ing cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the juris- diction of national causes ; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be re- lied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them, there is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation. — Publius. THE FEDERALIST. 507 would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention, I should consider every thing calculated to give, in practice, an unrestrained course to appeals, as a source of public and private inconvenience. I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts ; and to institute a federal court' in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the re- spective districts. Justice through them may be adminis- tered with ease and despatch ; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted ; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution. These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great de- fect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original juris- diction, only " in cases affecting ambassadors, other public minsters, and consuls, and those in which A State shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the pub- lic peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expe- dient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. 5o8 THE FEDERALIST. J, Though consuls have not in strictness a diplomatic charac- ter, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure ap- plicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mis- taken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of an- other, would enable them to prosecute that State in the federal courts for the amount of those securities ; a sugges- tion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of man- kind ; and the exemption, as one of the attributes of sov- ereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an ahena- tion of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recur- rence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privi- lege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and indi- viduals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They con- fer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe ? How could recoveries be THE FEDERALIST. 509 enforced ? It is evident, it could not be done without wa- ging war against the contracting State ; and to ascribe to the federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tri- bunals ; and the Supreme Court would have nothing more than an appellate jurisdiction, " with such exceptions and under such regulations as the Congress shall make." The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law ; but the clamors have been loud against it as applied to mat- ters of fact. Some well-intentioned men in this State, deriv- ing their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term " appellate," which, in our law parlance,«is com- monly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word " appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to re- view the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient cus- 510 THE FEDERALIST. torn or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as "may be judged advisable. If, therefore, the reexamination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court. But it does not follow that the reexamination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.* This is jurisdiction of both fact and law ; nor is it even possible to separate them. Though the common- law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and Ir.w ; and accordingly when the former is agreed in the plead- ings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the ex- pressions, " appellate jurisdiction, both as to law and fact," do not necessarily imply a reexamination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular pro- vision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court ; in the latter, the * This word is composed of jus and ViiCTlo, Juris dictio, or a speaking and pronouncing of the law. — PuBLIUS. THE FEDERALIST. 51I reexamination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essen- tial to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode*; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and/rtc/, and that this jurisdiction shall be subject to such exceptions and regula- tions as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full pov/er to provide, that in appeals to the Supreme Court there should be no reexamination of facts where they had been tried in the original causes by juries. This would cer- tainly be an authorized exception ; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this : that it has been carefully restricted to those causes which are mani- festly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme * I hold that the Slates will have concurrent jurisdiction with the subordinate federal judicatories, in m.iny cases of federal cognizance, as will be explained in my next paper. — Publius. 512 THE FEDERALIST. Court, and the rest consigned to the subordinate tribunals ; that the Supreme Court will possess an appellate jurisdic- tion, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable ; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordi- nary degree of prudence and integrity in the national coun- cils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. PUBLIUS. From McLean's Edition, Ne-v York, M.DCC.LXXXVIII. THE FEDERALIST. No. LXXXII. (HAMILTON.) To the People of the State of Ne%v York : The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a par- ticular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorpo- ration of a number of distinct sovereignties. 'T is time only that can mature and perfect so compound a system, can Hquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE. Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction ? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. The principles established in a former paper* teach us * No. XXXI.— PuBLius. THE FEDERALIST. 513 that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head ; and that this exclusive delegation can only exist in one of three cases : where an exclusive authority is, in express terms, granted to the Union ; or where a particular authority is granted to the Union, and the exercise of alike authority is prohibited to the States ; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principle may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated inodes. The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage : — " The JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish." This might\ either be construed to signify, that the supreme and sub- ordinate courts of the Union should alone have the power/ of deciding those causes to which their authority is to ext tend ; or simply to denote, that the organs of the national" > judiciary should be one Supreme Court, and as many sub-/ ordinate courts as Congress should think proper to appoint ;/ or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of in- ferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals ; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly ^14 THE FEDERALIST. applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established ; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a preexisting authority. I mean not therefore to contend that the Unitfcd States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient ; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal ; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the gen- eral genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation be- tween parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the in- ference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Here another question occurs : What relation would sub- sist between the national and State courts in these instances of concurrent jurisdiction ? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the THE FEDERALIST. 515 enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plain- tiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved ; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed govern- ment, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To con- fine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the sub- ordinate federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have .been raised, and of greater diffi- culty than the former. The following considerations coun- tenance the afifirmative. The plan of the convention, in the 5l6 THE FEDERALIST. \ \ first place, authorizes the national legislature " to constitute tribunals inferior to the Supreme Court." * It declares, in the next place, that " the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish " ; and it then proceeds to enumerate the cases to which this judi- cial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be " inferior to the Supreme Court," and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals ; and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplica- tion of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes ; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courtsof the Union. PUBLIUS. From McLean's Edition, New York, M.DCC.LXXXVIII. THE FEDERALIST. No. LXXXIII. (HAMILTON.) To the People of the State of New York ; The objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is that relative to the want of a constitu- * Sec. 8th, art. 1st. — PuBLIUS. THE FEDERALIST. 51/ tional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but contin- ues to be pursued in all the conversations and writings of the opponents of the plan. The nnere silence of the Con- stitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is com- plete and universal, extending not only to every species of civil, but even to criminal, causes. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in lan- guage adapted to convey their meaning. With regard to civil causes, subtleties almost too con- temptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to sup- port it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken. The maxims on which they rely are of this natufe : " A specification of particulars is an exclusion of generals " ; or, " The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. The rules of legal interpretation are rules of common-sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its con- formity to the source from which they are derived. This being the case, let me ask if it is consistent with common- 5l8 THE FEDERALIST. sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases ? Is it natural to suppose, that a com- mand to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others. A power to constitute courts is a power to prescribe the mode of trial ; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases ; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or neces- sity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. The pretence, there- fore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all just foundation. From these observations this conclusion results : that the trial by jury in civil cases would not be abolished ; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore hot admissible. Even if these maxims had a pre- cise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, how- ever, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, THE FEDERALIST. 5 19 the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction. Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the federal judi- catures is declared by the Constitution to comprehend cer- tain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. These examples are sufficient to elucidate the maxims which have been mentioned, and to des'ignate the manner in which they should be used. [But that there may be no mispprehension upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them.]* Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman hav- ing no previous power to alienate her property, the specifica- tion determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose * This sentence in brackets is omitted in the revised text. 520 THE FEDERALIST. that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed ; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value ? The posi- tion is too absurd to merit a refutation, and yet this is pre- cisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature. From these observations it must appear unquestionably true, that trial by juiy is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, [and will be in no degree altered or influenced by the adoption of the plan under consideration].* The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the inter- vention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government. * This sentence in brackets is omitted in the revised text. THE FEDERALIST. 52 1 The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this : the former regard it as a valuable safeguard to liberty; the latter represent it as the very pal- ladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high es- timation ; and it would be altogether superiiuous to exam- ine to what extent it deserves to be esteemed useful or essen- tial in a representative republic, or how much more merit it may be entitled to, as a defence against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowlege that I cannot readily discern the inseparable connection between the ex- istence of liberty, and the trial by jury in civil cases. Arbi- trary impeachments, arbitrary methods of prosecuting pre- tended offences, and arbitrary punishments upon arbitraray convictions, have ever appeared to me to be the great en- gines of judicial despotism ; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the Jiabeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention- It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legis- lature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. If it can have any influ- ence, therefore, it must be upon the mode of collection, and the conduct of the officers intrusted with the execution of the revenue laws. 522 THE FEDERALIST. As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceed- ing of distress and sale, as in cases of rent. And it is ac- knowledged on all hands, that this is essential to the efificacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the conven- ience of the citizens. It would often occasion an accumula- tion of costs, more burdensome than the original sum of the tax to be levied. And as to the conduct of the oflficers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public au- thority, to the oppression of the subject, and every species of ofificial extortion, are offences against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case. The excellence of the trial by jury in civil cases appears to depend on cirumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing ofiScers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken THE FEDERALIST. 523 from the public mass, than in gaining men who had been chosen by the government for their probity and good char- acter. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corrup- tion. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court aud jury ; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practise upon the jury, unless the court- could be likewise gained. Here then is a double security ; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it dis- courages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the coopera- tion of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes. Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property ; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this ; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter mate- rially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention. The great difference between the limits of the jury trial in different States is not generally understood ; and as it 524 THE FEDERALIST. must have considerable influence on the sentence we ought to. pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty, and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions, In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury.* In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of com- mon law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jer- sey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imi- tated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania ; South Carolina to Virginia. I be- lieve, however, that in some of those States which have dis- tinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common- law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In * It has been erroneously insinuated, witli regard to the court of chancery, that this court generally tries disputed facts by a jury. The truth is, that ref- erences to a jury in that court rarely happen, and are in no case necessary but where the validity of a devise of land comes into question. — PuELIUS. THE FEDERALIST. 525 Connecticut, they have no distinct courts either of chancery (pr of admiralty, and their courts of probates have no juris- diction of causes. Their common-law courts have admi- ralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury ex- tends in /rac^z'c^ further than in any other State yet men- tioned. Rhode Island is, I beheve, in this particular, precty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States ; and from this fact these obvious reflections flow : first, that no general rule could have been fixed upon by the convention which would have corresponded with the cir- cumstances of all the States ; and secondly, that more or at least as much might have been hazarded by taking the sys- stem of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation. The propositions which haive been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose — " Trial by jury shall be as heretofore " — and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial 526 THE FEDERALIST. by jury, with various limitations, is known in each State in- dividually, yet in the United States, as such, it is at this time altogether unknown, because the present federal gov- ernment has no judiciary power whatever ; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty. As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I ap- prehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts ; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself suffi- cient to indispose every well-regulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties. But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations — that is, in most cases where the ques- tion turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be sup- posed competent to investigations that require a thorough knowledge of the laws and usages of nations ; and they will sometimes be under the influence of impressions which will not suffer them to pay suiificient regard to those considera- tions of pubHc policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper THE FEDERALIST. 527. province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable. It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, under- goes a reexamination. This alone demonstrates the impol- icy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any consti- tutional provisions the propriety of which is not indis- putable. My convictions are equally strong that great advantages result from the separation of the equity from the law juris- diction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordi- nary cases, which are exceptions * to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination ; while a separation of the one from the other has the con- trary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation * It is true that the principles by which that relief is governed are now re- duced to a regular system ; but it is not the less true that they are in the main applicable to special circumstances, which form exceptions to general rules. — PUBLIUS. 528 THE FEDERALIST. as would be impracticable to men called from their occupa- tions, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point : while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars. It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurispru- dence : which is the model that has been followed in sev- eral of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preser- vation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law ; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unpro- ductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by intro- ducing questions too complicated for a decision in that mode. These appeared to be conclusive reasons against incor- porating the systems of all the States, in the formation of the national judiciary, according to what may be conjec- tured to have been the attempt of the Pennsylvania mi- nority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form : " In civil actions between citizens of different States, every issue of fact, arising in actions at com- mon law, may be tried by a jury if the parties, or either of them, request it." This, at best, is a proposition confined to one description of causes ; and the inference is fair, either that the Massa- chusetts convention considered that as the only class of THE FEDERALIST. 529 federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respect- ing so partial an object can never be considered as a ma- terial imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all : if we advert to the observations al- ready made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize tliat species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them, every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be deter- mined by a jury, if the parties, or either of them, choose it. Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it ; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judi- catories varied as to common-law jurisdiction. It is obvious, therefore, that the Massachusetts proposi- tion, upon this subject cannot operate as a general regula- tion, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind, is a task arduous in itself, and which it would require much time 530 THE FEDERALIST. and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions. It may be asked. Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States ? I answer that it is not very probable the other States would entertain the same opinion of qur insti- tutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the pre- dilection of each representation in favor of its own govern- ment ; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the insti- tutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prej- udices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this, I believe, no precedent is to be found in any member of the Union ; and the considerations which have been stated in discussing the proposition of the mi- nority of Pennsylvania, must satisfy every sober mind that THE FEDERALIST. 53 1 the establishment of the trial by jury in all cases would have been an unpardonable error in the plan. In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable ; or which might not have opened other sources of opposition to the great and essential object of in- troducing a firm national government. I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have enter- tained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention ; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention ; that it is in no case abolished " by that plan ; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States. The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advanta- geously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. * Vide No. LXXXI., in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the Supreme Court, is examined and refuted. — PuBuus. 532 THE FEDERALIST. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and util- ity of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discre- tion of the legislature. This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut ; and yet it may be safely af^rmed that more numerous encroach- ments have been made upon the trial by jury in this State since the Revolution,* though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not alto- gether useless, have far less virtue and efificacy than are commonly ascribed to them ; and the want of them will never be, with men of sound discernment, a decisive objec- tion to any plan which exhibits the leading characters of a good government. It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, becauses it does not do it in civil also ; while it is a notori- ous fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either. PuBLIUS. THE FEDERALIST. 533 From McLean's Edition, New York, M.DCC.LXXXVIII. TH£ FEDERALIST. No. LXXXIV. (HAMILTON.) To the People of the State of New York : In the course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, how- ever, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed ; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper. The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon differ- ent occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate parti- sans of a bill of rights. To justify their zeal in this matter, they allege two things : one is that, though the constitution of New York has no bill of rights prefixed to it, yet it con- tains, in the body of it, various provisions in favor of par- ticular privileges and rights, which, in substance, amount to the same thing ; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured. To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions. Independent of those which relate to the structure of the government, we find the following: Article i, section 3, clause 7 — " Judgment in cases of impeachment shall not 534 THE FEDERALIST. extend further than to removal from office, and disqualifica- tion to hold and enjoy any office of honor, trust, or profit under the United States ; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of theieame article, clause 2 — " The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.' Clause 3 — " No bill of attainder or ex-post-facto law shall be passed." Clause 7 — " No title of nobility shall be granted by the United States ; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3 — " The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article — " Treason against the United States shall con- sist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section — " The Congress shall have power to declare the punishment of treason ; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, to ivhich we have 710 corre- sponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. THE FEDERALIST. 535 ^ The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches ot-no law, and the- practice of arbitrary imprisonments, have bee», in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,* in reference to the latter, are well worthy of recital : " To bereave a man of life, [says he,] or by violence to confis- cate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation ; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less pub- lic, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls " the bul- wark of the British Constitution.''} Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denom- inated the corner-stone of republican government ; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people. To the second — that is, to the pretended establishment of the common and statute law by the Constitution, I answer, that they are expressly made subject " to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was , to recognize the ancient law, and to remove doubts which might have been occa- sioned by the Revolution. This consequently can be con- sidered as no part of a declaration of rights, which under * FiV/^ Blackstone's " Commentaries," vol. I., p. 136. — PuBLius. \ Vide Blackstone's " Commentaries," vol. iv., p. 438. — Purlius. 536 THE FEDERALIST. our constitutions must be intended as limitations of the power of the government itself. It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privi- lege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such were the subsequent con- firmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the begin- ning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing ; and as they retain every thing they have no need of particular reservations. " We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitu- tion of government. But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consid- eration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitu- tion of this State. But the truth is, that both of them THE FEDERALIST. 537 contain all which, in relation to their objects, is reasonably to be desired. I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted ; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do ? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed ? I will not contend that such a provision would confer a regu- lating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the in- dulgence of an injudicious zeal for bills of rights. On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two : in the first place, I observe, that there is not a syllable concerning it in the constitution of this State ; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that " the liberty of the press shall be inviolably preserved " ? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion ? I hold it to be impracticable ; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting, it, must altogether 538 THE FEDERALIST. depend on public opinion, and on the general spirit of the people and of the government.* And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. There remains but one other view of this matter to con- clude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the govern- ment? This is done in the most ample and precise manner in the plan of the convention ; comprehending various pre- cautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of pro- ceeding, which are relative to personal and private concerns ? This we have seen has also been attended to, in a variety of * To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declara- tions in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of ihat liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion ; so that, after all, general declarations respecting the liberty of the |)ress, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declaralions through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained. — PtJBLIUS. THE FEDERALIST. 539 cases, in the same plan. Adverting therefore to the sub- stantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear ; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of de- claring the rights of the citizens, if they are to be found in any part of the instrument which establishes the govern- ment. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing. Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper [say the objectors] to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the argu- ments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can ha-v^e no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide ; and how must these men obtain their information ? Evidently from the 540 THE FEDERALIST. complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government. It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the im- pediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many senti- nels over the persons employed in every department of the national administration ; and as it will be in their power to adopt and pursue a regular and effectual system of intelli- gence, they can never be at a loss to know the behavior of those who represent their constituents in the national coun- cils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives. It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of inteUigence to the most remote inhabitants of the Union. Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary THE FEDERALIST. 54 1 and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public default- ers. The newspapers have teemed with the most inflamma- tory railings on this head ; yet there; is nothing clearer than that the suggestion is entirely void of foundation, the off- spring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that " states neitlier lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government." * The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan. The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political hap- piness. Men of sense of all parties now, with few excep- tions, agree that it cannot be preserved under the present system, nor without radical alterations ; that new and ex- tensive powers ought to be granted to the national head, and that these require a different organization of the federal government — a single body being an unsafe deposi- tary of such ample authorities. In conceding all this, the question of expense must be given up ; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty- five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased ; but this * Vide Rutherford's " Institutes," vol. ii., book 11, chap, x., sect. xiv. and XV. Vide also Grotius, book II, chap, ix., sects, viii. and ix. — Publius. 542 THE FEDERALIST. is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe , and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate repre- sentation of the people- Whence is the dreaded augmentation of expense to spring ? One source indicated, is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the admin- istration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Con- stitution can make no other difference than to render their characters, where tliey reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unqestionably true that these will form a very considerable addition to the number of federal officers ; but it will not follow that this will oc- casion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of ex- pense to pay officers of the customs appointed by the State or by the United States ? [There is no good reason to suppose that either the number or the salaries of the lat- ter will be greater than those of the former.] * Where then are we to seek for those additional articles of * Tliis sentence in brackets is omitted in the revised te.-tt. THE FEDERALIST. 543 expense which are to swell the account to the enormous size that has been represented to us ? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The sup- port of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reason- able plan can it amount to a sum which will be an object of material consequence. Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally de- volve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Repre- sentatives ; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be in- creased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary ses- sion of the future Congress. But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Con- gress, The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted 544 THE FEDERALIST. greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or a fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legisla- tures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any ad- ditional objects of expense that may be occasioned by the adoption Of the new system. The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined ; that they are counterbalanced by considerable objects of saving ; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union. PUBLIUS. From McLean's Edition, New York, M.DCC.LXXXVIII. THE FEDERALIST. No. LXXXV. (HAMILTON.) To the People of the State of New York : According to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two points: " the analogy of the proposed government to your own State constitution," and " the additional security which its adoption will afford THE FEDERALIST. 545 to republican government, to liberty, and to property." But these heads have been so fully anticipated and exhausted in the progress of the work, that it would now scarcely be pos- sible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid. It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the sup- posed defects, than to the real excellences of the former. Among the pretended defects are the reeligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union ; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable. The additional securities to republican government, to liberty, and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and in- fluence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportuni- ties to foreign intrigue, which the dissolution of the Con- federacy would invite and facilitate ; in the prevention of 546 THE FEDERALIST. extensive military establishments, which could not fail to grow out of wars between the States in a disunited situa- tion ; in the express guaranty of a republican form of gov- ernment to each ; in the absolute and universal exclusion of titles of nobility ; and in the precautions against the repeti- tion of those practices on the part of the State govern- ments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost uni- versal prostration of morals. Thus have I, fellow-citizens, executed the task I had assigned to myself ; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the oppo- nents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscrim- inately brought against the advocates of the plan, has some- thing in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways prac- tised to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasion- ally betrayed me into intemperances of expression which I did not intend ; it is certain that I have frequently felt a struggle between sensibility and moderation ; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much. THE FEDERALIST. 547 Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the pubhc approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and under- standing, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. 'T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party ; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation ; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject. I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am per- suaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced. Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. " Why," say they, " should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established ? " This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically de- 548 THE FEDERALIST. fective, and that without material alterations the rights and the interests of the community cannot be safely con- fided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one ; is the best that the present views and circumstances of the country will permit ; and is such an one as promises every species of security which a reasonable people can desire. I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a per- fect plan. I never expect to see a perfect work from im- perfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the indi- viduals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can per- fection spring from such materials ? The reasons assigned in an excellent little pamphlet lately published in this city," are unanswerable to show the utter improbability of assembling a new convention, under cir- cumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circula- tion. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be consid- ered, and in which it has not yet been exhibited to public *Entil!ed " An Address to the People of the State of New York." — PuB- Lius. THE FEDERALIST. 549 view. I cannot resolve to conclude without first taking a survey of it in this aspect. It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than pre- vious amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concur- rence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine* in favor of subsequent amendment, rather than of the original adoption of an entire system. This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact ; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties. But every amendment to the Constitution, if once estab- lished, would be a single proposition, and might be brought forward singly. There would then be no necessity for man- * It may rather be said TEN, for though two thirds may set on foot the meas. ure, three fourths must ratify. — Publius. 5 so THE FEDERALIST. agement or compromise, in relation to any other point — no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And conse- quently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no compari- son between the facility of affecting an amendment, and that of establishing in the first instance a complete Consti- tution. In opposition to the probability of subsequent amend- ments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part, 1 acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers ; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion, constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further considera- tion, which proves beyond the possibility of a doubt, that the observation is futile. It is this, that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Con- stitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress THE FEDERALIST. 55 I "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on th e disposi- tion_^5£jthe_Stat^Jegislatures to erect barriersagainst the _encnQach.me-n.ts_pf the national authority^.. If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object. The zeal for attempts to amend, prior to the establish- ment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious : " To balance a large state or society [says he], whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mis- takes which they inevitably fall into in their first trials and experiments,"* These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from * Hume's " Essays," vol. i., page iz8 : " The Rise of Arts and Sciences." — PUBUUS. APPENDIX. ARTICLES OF CONFEDERATION. Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Article I. The style of this Confederacy shall be "The United States of America." Art. II. Each Statf* retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation ex- pressly delegated to the United States in Congress assembled. Art. III. The said States hereby severally enter into a firm league of friend- ship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. Art. IV. The better to secure and perpetuate mutual friendship and inter- course among the people of the different States in this Union, the free inhabi- tants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall he entitled to all the privileges and immunities of free citizens in the several States, and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restric- tions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant ; provided also, that no imposition, duties, or restriction shall be laid by any Stale, on the property of the United States, or either of them. If any person guilty of or charged with treason, felony, or other high misde- meanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up and" removed to the State having jurisdic- tion of his offence. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State. Art. V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the 555- 556 THE FEDERALIST. legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year. No State shall be represented in Congress by less than two, nor by more than seven members ; and no person shall be capable of being a delegate for more than three years in any term of six years, nor shall any person, being a delegate, be capable of holding any office under the United States for which he or another for his benefit receives any salary, fees, or emolument of any kind. Each State shall maintain its own delegates in si meeting of the States, and while they act as members of the committee of the States. In determining questions in the United States, in Congress assembled, each State shall have one vote. Freedom of speech and debate in Congress shall not be impeached or ques- tioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of tlieir going to or from, and attendance on. Congress, except for treason, felony, or breach of the peace. Art. VI. No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with, any king, prince, or state ; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state ; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more Stales shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties, which may interfere with any stipu- lations in treaties entered into by the United States in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain. No vessels of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States in Con- gress assembled, for the defence of such State or its trade ; nor shall any body of forces be kept up by any State, in time of peace, except sucli number only as in the judgment of the United States in Congress assembled shall be deemed requisite to garrison the forts necessary for the defence of such State ; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of THE FEDERALIST. 557 Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted ; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of yiax by the United States in Congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regu- lations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise. Art. VII. When land forces are raised by any State for the common defence, all officers of or under the rank of colonel shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct ; and all vacancies shall be filled up by the State which first made the appointment. Ar'I'. VIII. All charges of war and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United Slates in Congress assembled, shall be defrayed out of a. common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, and such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled. Art. IX. The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article— of sending and receiving ambassadors — entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are sub- jected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever — of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated — of granting letters of marque and reprisal in times of peace — appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts. The United States in Congress assembled shall also be the last resort on ap- peal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever ; which authority shall always be exercised in the manner fol- lowing : — Whenever the legislative or executive authority or lawful agent of 558 THE FEDERALIST. any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other Stale in controversy, and n day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question ; but if they cannot agree, Congress shall name three per- sons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the num- ber shall be reduced to thirteen ; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Con- gress, be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges, to hear and finally deter- mine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination ; and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or, being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Con- gress shall strike in behalf of such party absent or refusing ; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive ; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned : provided that every commissioner, before he sits in judgment, shall take an oath, to be ad- ministered by one of the judges of the Supreme or Superior Court of the State where the cause shall be tried, "well and ti^ly to hear and determine the matter in questioti according to the best of his judgment, without favor, affection, or hope of reward," piovided also that no State shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil, claimed under different grants of two or more Stales, whose jurisdictions as they may respect such lands and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. The United States in Congress assembled shall also have the sole and exclu- sive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States — fixing the standard of weights and measures throughout the United States — regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated —establishing and regulating post-offices from one State to another, throughout THE FEDERALIST. 559 all the United States, and exacting such postage on the papers passing througli the same as may be requisite to defiay tlie expenses of the said office — appoint- ing all officers of the land forces in the service of ihe United States, excepting regimental officers — appointing all the officers of the naval forces, and com- missioning all officers whatever in the service of the United States — malting rules for the government an regulation of the said land and naval forces, and directing their operations. The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated " A Committee of the States," and to consist of one delegate from each State ; to appoint such other committees and civil officers as may be necessary for managing the gene- ral affairs of the United States under their direction ; and to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years — to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses — to borrow money, or emit bills on the credit of the United States, transmitting every half-year to the respective States an account of the sums of money so borrowed or emitted — to build and equip a navy — to agree upon the number of land forces, and to make requisitions from each Stale for its quota, in proportion to the number of white inhabitants in such State ; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like man- ner, at the expense of tlie United States, and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled ; but if the United States in Congress assembled shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared : and the officers and men, so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on, by the United Slates in Congress assembled. The United States in Congress assembled shall never engage in a war, noi grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a. commander-in-chief of the army or navy, unless nine States assent to the same ; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled. 560 THE FEDERALIST. The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment he for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof re- lating to treaties, alliances, or military operations, as in their judgment require secrecy, and the yeas and nays of the delegates of each State on any question shall be entered on the journal, when it is desired by any delegate ; and the delegates of a State, or any of them, at his or their request, shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States. Art. X. The Committee of the States, or any nine of them, shall be author- ized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with : provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congre-s of the United States assembled is requisite. Art. XI. Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into and entitled to all the advantages of this Union ; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States. Art. XII. All bills of credit emitted, moneys borrowed, and debts con- tracted by or under the authority of Congress, before the assembling of the United States in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged. Art. XIII. Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual ; nor shall any altera- tion at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. And whereas it hath pleased the Great Governor of the world to incline the hearts of the legislatures we respectfully represent in Congress to approve of and to authorize us to ratify the said Articles of Confederation and perpetual Union, KNOW YE, That we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and con- firm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained : and we do further solemnly plig'iit and engage the faith of our respect'ive constituents that they shall abide by the determinations of the United States in Congress as- sembled, on all questions which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and the Union shall be perpetual. THE FEDERAL CONSTITUTION, AS AGREED UPON BY THE CONVENTION, September 17, 1787. "Me, tbe people 0/ ihe United States, in order to form a more perfect Union, establish jfustice, insure domestic Tranquillity, pro- vide for the common Defence, f remote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this CONSTITUTION for the United States of America. ARTICLE I. Section i. All legislative powers herein granted shall be vested in a Con- gress of the United States, which shall consist of a Senate and House of Rep- resentatives. Sect. 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for the electors of most numerous branch of the State legislature. No person, shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for n term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration .shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent terra of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one representa- tive ; and until such enumeration shall be made, the State of New Hampshire 561 562 THE FEDERALIST. shall be entitled to choose three, Massachusetts eight, Rhode Island and Provi- dence Plantations one, Connecticut five, New York six, Nevi^ Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their Speaker aud other officers ; and shall have the sole power of impeachment. Sect. 3. The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years ; and each senator shall have one vote. Immediately after they shall be assembled in consequence of the first elec- tion, they shall be divided as equally as may be into three classes. The scats of the senators of the first class shall be vacated at the expiration of the second year, the second class at the expiration of the fourth year and the third class at the expiration of the sixth year, so that one third may be chosen every second year ; and if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the Executive thereof may make temporary appoint- ments until the next meeting of the legislature, which shall then fill such va- cancies. No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and ivho shall not, when elected, be an inhabitant of that State for which lie shall be chosen. The Vice-President of the United States shall be president of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other officers, and also a president /;-» tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. The Senate shall have the sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation. When the President of the United States is tried, the Chief-Justice shall preside. And no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States ; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law. Sect. 4. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each Slate by the legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. Sect. 5. Each house shall be the judge of the elections, returns, and qualifi- cations of its own members ; and a majority of each shall constitute a quorum THE FEDERALIST. 563 to do business ; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide. Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, wiUi the concurrence of two thirds, expel a member. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and tlie yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. Neither house, during the session of Congress, shall, vifithout the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. Sect. 6. The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session or their respective houses, and in going to and returning from the same ; and for any speech or debate in either house, they shall not be questioned in any other place. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time ; and no person holding any office under the United States, shall be a member of either house during his continuance in office. Sect. 7- -All bills for raising revenue shall originate in the House of Repre- sentatives ; but the Senate may propose or concur with amendments as on other bills. Every bill which shall have passed the House of Representatives and the Sen- ate shall, before it become a law, be presented to the President of the United States ; if he approve, he shall sign it ; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the olher house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the n.imes of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote, to which the concurrence of the Senate and the House of Representatives may be necessary (except on a question of adjourn- ment), .shall be presented to the President of the United States ; and Iwforethe 564 THE FEDEKALIST. same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. Sect. 8. The Congress shall have power — To lay and collect taxes, duties, imposts, and excises ; to pay the debts and provide for the common defence and general welfare of the United States : but all duties, imposts, and excises, shall be uniform throughout the United States ; To borrow money on the credit of the United States ; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; To establish a uniform rule of naturalization, and uniform laws on the sub- ject of bankruptcies throughout the United States ; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of Aveights and measures ; To provide for the punishment of counterfeiting the securities and curient coin of the Uniled States ; To establish post-offices and post-roads ; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ; To constitute tribunals inferior to the Supreme Court ; To define and punish piracies and felonies committed on the high seas, and offences against the law of nations ; To declare war, grant letters of marque and reprisal, and malve rules coiv cerning captures on land and water ; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years ; To provide and maintain a navy ; To make rules for the government and regulation of the land and naval forces ; To provide for calling forth the militia to execute the laws of the Union, sup- press insurrections, and repel invasions ; To provide for organizing, arming, and disciplining the militia, and for gov- erning such parts of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress ; To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings ; And To make all laws which shall be necessary and proper for carrying into exe- cution the foregoing powers, and all other powers vested by this Constitiuion in the government of the United States, or in any department or officer thereof. THE FEDERALIST. 565 Sect. 9. The migration or importation of sucli persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder or ex-post-facto law shall be passed. No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein befone directed to be taken. No tax or duty shall be laid on articles exported from any State. No prefer- ence shall be given by any regulation of commerce or revenue to the ports of one State over those of another ; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. No money shall be drawn from the treasury, but in consequence of appropri- ations made by law ; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States : And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. Sect. 10. No State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make any thing but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts ; or grant any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the net proceeds of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duties of tonnage, keep troops, or ships of war, in time of peace, enter into any agree- ment or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. ARTICLE 11. Sect. i. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows : Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which' the State may be entitled in the Congress : but no senator or represen- tative, or person holding an office of trust or profit under the United States, shall be appointed an elector. The electors shall meet in their respective States, and vote by ballot for two 566 THE FEDERALIST. persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the Senate. The president of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes. shall be the President, if such number be a majority of the whole number of electors appointed ; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President ; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes ; which day shall be the same throughout the United States. No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President ; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident with- in the United States. In case of removal of the President from office, or of his death, resignation, jx inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice- President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. Before he enter on the execution of his office, he shall take the following oath or affirmation : " I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.'' Sect. 2. The President shall be commander-in-chief of the army and navy of the United States ; and of the militia of the several States, when called into THE FEDERALIST. 567 the actual service of the United States ; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any sub- ject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur ; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be establfehBd"liy law! But the Con-" gress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of de- partments. The President shall have power to fill up all vacancies that may ha ppen dur- ing the recess of the Senate, by granting commissions which shall expire at the end of their nexflessioni Sect. 3. He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient ; he may, on extraordinary occasions, con- vene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper ; he shall receive ambassadors and other public ministers ; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. Sect. 4. The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors, ARTICLE III. Sect. i. The judicial power of the United States shall be vested in one Su- preme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Sect. 2. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting am- bassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citi- zen of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States ; and between a State, or the citizens thereof, and foreign states, citizens, or subjects. 568 THE FEDERALIST. In all cases affecting ambassaaors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original juris- diction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, botli as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Sect. 3. Treason against the United States shall consist only in levying war against them, or in adliering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two wit- nesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted ARTICLE IV. Sect. 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceed- ings shall be proved, and the effect thereof. Sect. 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the execu- tive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due! Sect. 3. New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Sect. 4. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against inva- sion, and on application of the legislature, or of the Executive (when the legis- lature cannot be convened), against domestic violence. THE FEDERALIST. 569 ARTICLE V. The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or. on the application of the legislatures of two thirds of the several States, shall call a convention for pro- posing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by convenlions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress : Pro- vided, that no amendment which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. . ARTICLE VI. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitu- tion, as under the Confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof ; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding. The senators and representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VII. The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. DONE in convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of • America the twelfth. In witness whereof, we have hereunto subscribed our names. GEORGE WASHINGTON, President, and Deputy from Virginia. ..,„,,, -. , ,,T1CXTTT3T7 ( JOHN LANGDON, NEW-HAMPSHIRE . . ] ^Nicholas Gilman. MASSACHUSETTS . . 1 Ki^pricTNo""''"^"' r-n-M-NTiri-Tir'TTT' J WiLLlAM SAMUEL JOHNSON, cuJNJNii(..iiuui . . . ^ Roger Sherman. NEW YORK \ Alexander Hamilton. 570 THE FEDERALIST. NEW JERSEY PENNSYLVANIA DELAWARE . . . MARYLAND . . . VIRGINIA .... NORTH CAROLINA SOUTH CAROLINA GEORGIA . . Attest. William Livingston, David Brearley, William Paterson, Jonathan Dayton. Benjamin Franklin, Thomas Mifflin, Robert Morris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James Wilson, gouverneur morris. George Read, Gunning Bedford, Junior, John Dickinson, Richard Bassett, Jacob Broom. James M'Henry, Daniel Jenifer, of St. Thomas, Daniel Carroll. John Blair, James Madison, Junior. William Blount, Richard Dobbs Spaight, Hugh Williamson. John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler. William Few, Abraham Baldwin. WILLIAM JACKSON, Secretary. IN CONVENTION. Monday, September 17, 17S7. Present, The States of New-Hampshire, Massachusetts, Connecticut, Air. Hamilton from New- York, New yersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this convention, that it should 'afterwards be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification ; and that each convention assenting to, and ratifying the same should give notice thereof to the United States in Congress assembled. Resolved, That it is tlie opinion of this convention, that as soon as the con- ventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on vifhich electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for com- mencing proceedings under this Constitution ; that after such publication the THE FEDERALIST. 57 1 electors should be appointed, and the senators and representatives elected ; that the electors should meet on the day fixed for the election of the President, and should transmit their votes certified, signed, sealed, and directed, as the Constitution requires, to the secretary of the United States in Congress assem- bled ; that the senators and representatives should convene at the time and place assigned ; that the senators should appoint a president of the Senate, for the sole purpose of receiving, opening, and counting the votes for President ; and that after he shall be chosen, the Congress, together with the President, should without delay proceed lo execute this Constitution. By the unanimous order of the convention. GEORGE WASHINGTON, Prendent. William Jackson, Secretary. IN CONVENTION. September 17, 1787. Sir : We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable. The friends of our country have long seen and desired, that the power of making war, peace, and treaties, of levying money and regu- lating commerce, and tlie correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union ; but the impropriety of delegating such extensive trusts to one body of men is evident. Hence results the necessity of a different organization. It is obviously impracticable, in the federal government of the States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to pre- serve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved ; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, ex- tent, habits, and particular interests. In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolida- tion of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each Slate in the convention to be less rigid on points of inferior magnitude than might have been otherwise expected ; and thus the Constitution, which we now present, is the result of a spirit of amity, and of (hat mutual deference and concession which the peculiarity of our politi- cal situation rendered indispensable. That it will meet the full and entire approbation of every State is not perhaps to be expected ; but each will doubtless consider, that had her interest alone been consulted, the consequences might have been particularly disagreeable or injurious to others ; that it is liable to as few exceptions as could reasonably 572 THE FEDERALIST. have been expected, we hope and believe ; that it may promote the lasting wel- fare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. With great respect, we have the honor to be, sir, your Excellency's most obedient and humble servants ; By unanimous order of the convention. Geo. Washington, President. His Excellency the President of Congress. AMENDMENTS TO THE CONSTITUTION. The first ten amendments were proposed in Congress during its _;i?r.f/ session, and on the 15th of December, 1791, were ratified. The eleventh amendment was proposed during the first session of the third Congress, and was announced by the President of the United States in a message to it, of date January 8th, 1798, as having been ratified. The twelfth amendment originated with Hamil- ton,* and was proposed during the fi,rst session of the eighth Congress, and was adopted in 1804 ARTICLE THE FIRST. Congress shall make no law respecting the establishment of religion, or pro- hibiting the free exercise thereof ; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. ARTICLE THE SECOND. A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. ARTICLE THE THIRD. No soldier shall, in time of peace, be quartered in any liouse without the con- sent of the owner ; nor in time of war, but in the manner prescribed by law. ARTICLE THE FOURTH. The right of Ihe people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirma- tion, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE THE FIFTH. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to * Hist. Rep,, VII., 566. THE FEDERALIST. 573 be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be witness against himself ; nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. ARTICLE THE SIXTH. In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. ARTICLE THE SEVENTH. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury, shall be otherwise reexamined in any court of the Uniled States than according to the rules of the common law. ARTICLE THE EIGHTH. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE THE NINTH. The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. ARTICLE THE TENTH. The powers not delegated to the United Stales by the Constitution or pro- hibited by it to the States, are reserved to the States respectively, or to the people. ARTICLE THE ELEVENTH. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. ARTICLE THE TWELFTH. The electors shall meet in their respective States, and vote by ballot for Presi- dent and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves ; ihey shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-Presi- dent ; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of government of the United Slates, directed to the President of the Senate ; the president of the Senate shall, in the presence of the Senate and the House of Rep- 574 THE FEDERALIST. resentatives, open all the certificates, and the votes shall then be counted ; the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest num- bers, not exceeding three, on the list of those voted for as President, the House of Representative shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed ; and if no person have a majority, then from the two highest num- bers on the list, the Senate shall choose the Vice-President ; a quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. The following amendment was ratified by Alabama, December z, 1865, which filled the requisite complement of ratifying States, and was certified by the Secretary of State to have become valid as a part of the Constitution of the United States, December 18, 1865. ARTICLE THE THIRTEENTH. Sect. 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Sect. 2. Congress shall have power to enforce this article by appropriate legislation. The following amendment was certified by the Secretary of State to have become valid as a part of the Constitution of the United States, July 28, 1868. ARTICLE THE FOURTEENTH. Sect. i. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall THE FEDERALIST. 5/5 any State deprive any person of life, liberty, or property without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws. Sect. 2. Representatives shall be apportioned among the several States ac- cording to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United Slates, representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabi- tants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Sect. 3. No person shall be a senator or representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to sup- port the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each house, remove such disability. Sect. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation in- curred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations, and claims shall be held illegal and void. Sect. 5. The Congress shall have power to enforce, by appropriate legisla- tion, the provisions of this article. The following amendment was proposed to the legislatures of the several States by the fortieth Congress, on the 27 th of Febru- ary, 1869, and was declared, in a proclamation of the Secretary of State, dated March 30, 1870, to have been ratified by the legisla- tures of twenty-nine of the thirty-seven States. ARTICLE THE FIFTEENTH. Sect. i. The right of citizens of the United States to vote shall not be de- nied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Sect. 2. Congress shall have power to enforce this article by appropriate legislation. ^^^M ^^^^^^^™^M®^^^2fe^Sj ^^^^pf H ii^^^^ll ^^^H INDEX TO THE FEDERALIST.* Achaean League, 92, 105, 223, 287. Achseans : They abandoned the ex- periment of plural prastors, 438. Agriculture : Its interests interwoven with those of commerce, 67. Amendments : Obligation under the Constitution, concerning them, 274. American System : Idea of one, 67. Amphictyonic Council, 102, 271. Annapolis, extract from the recom- mendation of the meeting at, in September, 1786, 240. Anne, Queen : Extracts from her letter to the Scotch Parliament, 22. Appeals to the People : dangers and inconveniences attending them, 314 ; objections to their being periodi- cally made, 317. Articles of Confederation : (appendix) 555-560. Aspasia, 27. Assemblies, objections to numerous, 345. 348, 350. (see " House of Representatives.") After a number of Representatives sufficient for the purposes of safety, of local infor- mation, and of diffusive sympathy with the whole society, is secured, any addition to them is injurious, 367. Athens, Archons of, 396. Attainder, Bills of : Provision of the Constitution concerning them, 279. Bankruptcy (see "Constitution"): Provision of the Constitution con- cerning it, 266. Bills of Credit : Provision of the Con- stitution concerning them, 278. Bills of Rights : In their origin, stipu- lations between kings and subjects, -533- ' Cambray, League of, 30. Carthage, Senate of, 394. * This index is the one made for the edition R.-Fendall, Esq. It has also been used by Mr, there attributed to P. H. Kendall. 577 Cato : An opponent of the Constitu- tion, cited, 420. Coalition : The word used in a good sense, 363. Commerce (see " Confederation," " Union,") : Examination of the opinion that its tendency is pacific, 29 ; a source of conten tion between the separate States, and would be among separate Confederacies of them, 35 ; policy of prohibitory regulations in regard to it, on the part of the United States, 60 ; inti- macy between its interests and those of agriculture, 67 ; power under the Constitution of regulating it, 262. Confederacies : Inexpediency of di- viding the Union into three or four separate confederacies, 20, 26, 32, 39 ; probable number of separate confederacies, in the event of dis- union, 74 ; tendency of confedera- cies rather to anarchy among the members than to tyranny in the head, 97, n8. Confederacy of the States : Alleged characteristic distinction between it and consolidation, 50. Confederate Republic : Defined, 50 ; tendency of the federal principle to moderation in government, 106 (see "Montesquieu," "Constitu- tion," "Republic"). Confederation, The : Its insufficiency to the preservation of the Union, 83 ; picture of the public distress under it, 84 ; its great and radical vice, legislation for communities instead ; of persons, 86 (see 137)'; difference between a league and a government, 87 ; want of a sanc- tion to its laws, 120 ;" State contri- butions by quotas, a fundamental error in it, 122 ; want of a power to regulate commerce, another de- published in Washington in 1831 by Philip . J. C. Hamilton in his edition (1864), and is 578 THE FEDERALIST. feet in it, 125 ; the nugatory power of raising armies, another, 127 ; the right of equal suffrage among the States, another, 128 ; anti-re- publican character of the requisi- tion, in certain cases, of a vote ex- ceeding a majority, I2g ; want of a judiciary power, a crowning de- fect of the Confederation, 132 ; the organization of Congress, another ; perilous tendency of a single legisla- tive house, 134 ; want of popular consent to it, another defect in it, 135 ; it acknowledges the necessity of strength in the federal power, 135 ; impracticable character of certain provisions under it, 230 ; necessary usurpations of Congress under it, 230 ; answer to the ques- tion, on what principle is it to be superseded, without the unanimous consent of the parties to it, 275 ; articles of (appendix) 555-560. Congress (see "Constitution," "States," "Public Debt"): Ex- tracts from the recommendatory act of Congress, in February, 1787, 240 ; power of, under the federal Constitution, over a district of ter- ritory not exceeding ten miles square, 267 ; its power concerning territory, etc., belonging to the United States, 270. Connecticut : Provision in her Consti- tution concerning elections, 333 ; one branch of her legislature so constituted that each member of it is elected by the whole State, 361 ; has no constitutional provision for jury trial, in either criminal or civil cases, 525. Consolidation : The plan of the Union aims only at a partial consolidation, 186 ; desire of the States to guard against improper consolidation of themselves into one simple republic, 386. Constitution of the United States (see "Union," "Confederation," "Standing Armies," "States," "House bf Representatives," "Slaves"): Its economy, 73; an- swer to an objection drawn from the extent of the country, 76 ; its guaranty to the States of a republi- can form of government, 191-270 ; necessity for strength in the feder- al government, 135 ; wisdoitt of the provision in the Constitution concerning the military force, 138, 141, 150, 155, 196, 250 ; answer to the objection, that it cannot operate without the aid of a military force to execute its laws, 159, 168; rea- son why the execution of it will probably be popular, 163 ; laws under it, as to the enumerated and legitimate objects of its jurisdiction, will be the supreme law of the land, 164—192 ; number and inconsistency of the objections to it, 226 ; most of the capital objections to it lie with tenfold weight against the Con- federation, 22g ; its conformity to re- publican principles, 232 ; analogy between the mode of appointments under it, and under the State govern- ments, 233 ; neither a national nor a federal constitution, but a compo- sition of both, 236, 239 ; general view of the powers which it pro- poses to vest in the Union, 249 ; the power of declaring war, 250; the power of providing a navy, 254 ; the power of making treaties, etc., 259 ; the power of defining and punish- ing offences on the high seas, 260 ; prohibition of the importation of slaves after 1808, 261 ; power of regulating commerce, 262 ; powers to coin money, to punish counter- feiters, and to regulate weights and measures, 264 ; power to establish a uniform mode of naturalization, 264 ; power to establish uniform laws of bankruptcy, 266 ; power concerning public acts, records, etc., 266 ; power of establishing post- roads, 266 ; power of granting copy- rights, 267 ; power to exercise ex- clusive legislation over a district not exceeding ten miles square, if ceded to the United States, 267 ; power concerning treason, 269 ; power of admitting new States, 269 ; power concerning territory, etc., belonging to the United States, 270 ; obligation to guarantee a re- publican form of government to every State of the Union, 270 ; ob- ligation concerning public debts prior to the adoption of the Consti- tution, 274 ; provision concerning amendments, 274 ; provision con- THE FEDERALIST. 579 ceming the ratification by nine States, 275 ; question, what relation is to exist between the nine or more ratifying States, and the non-ratify- ing States ? 275 ; disabilities of the States created by the Constitution, 277 ; power given by it to Congress, to make all laws necessary and proper for executing its enumerated powers, 280 ; four other possible alternatives, which the Constitution might have adopted, 281 ; provision that the Constitution, laws, and treaties of the United States shall be the supreme law of the land, 283 ; oath, etc., of officers, etc., to support the Constitution, 2B4 ; consists much less in the addition of new powers to the Union, than in the invigoration of its original powers, 291 ; its provisions concern- ing the proper, degree of separation between the legislative, executive, and judiciary powers, 2gg ; peculiar division under it, of the power sur- rendered by the people, 308, 314, 322 ; its mode of protecting the minority from usurpations by the majority, 325 ; three characteristics of the federal legislature, 332 ; an- swer to the objection that it con- tains no bill of rights, 533 ei seq. ; in the sense, and to the extent con- tended for, bills of rights are un- necessary and would be dangerous to the Constitution, 537 ; omission of a provision concerning the lib- erty of the press defended, 537 ; the Constitution itself is a bill of rights, 538 ; answer to an objection to the Constitution, founded on the re- moteness of the seat of government from many of the States, 539, 540 ; answer to the objection that it wants a provision concerning debts due to the United States, 541 ; answer to the objection as to expense, 541 ; Federal Constitution as agreed upon by the Convention (appendix), 561— 570; signers, 569; amendments, 572-575- Construction, two rules of, 241. Contracts : Laws in violation of pri- vate contracts a source of collision between the separate States or Con- federacies, 38 ; provision of the Constitution concerning them, 279. Convention at Philadelphia in 1787, 10 et seq. ; the difficulties it must have experienced in the formation of a proper plan, 216 et seq. ; one difficulty, that of combining the requisite degree of stability and en- ergy in government with the invio- lable attention due to liberty and the republican form, 217 ; another, making the partition between the authority of the general govern- ment and that of the State govern- ments, 21S ; its authority to propose a mixed Constitution, 239 ; its duties under existing circumstances, 245 ; its plan only recommendatory, 247 ;■ one particular in which it has de- parted from the tenor of its com- mission, 244 ; members of (appen- dix), 571. Conventions for correcting breaches of a Constitution, 318 ; dangers and inconveniences of frequent appeals to the people, 321. Copyrights : Power of the Constitution concerning Ihem, 267. Crete, Cosmi of, 396, Delaware (see "States"): Provision in her constitution concerning the separation of the legislative, execu- tive, and judiciary powers, 305 ; number of representatives in the more numerous branch of her legis- lature, 345. Democracy : A pure one defined, 56 ; its disadvantages, 56. Departments of Power (see "States," under their several titles) : Meaning of the maxim which requires a sepa- ration of them, 279, 307 ; principles of the British Constitution on this subject, 300, 301 ; provisions of the State constitutions concerning it, 302, 307 ; the partition among them to he maintained, not by exterior provisions, but by the interior struct- ure of the government, 322. District : Exclusive legislation of Congress over one not exceeding ten miles square, 267. Economy :• " The money saved from one object may be usefully applied to another," 73. Elections : Frequency of them in the choice of the Senate would be in- 58o THE FEDERALIST. consistent with a due responsibility in the government to the people, 267. England (see " Great Britain "). Europe: Her arrogant pretensions, 66, Faction : Defined, 51 ; its latent cause inherent in human nature, 53 ; the various and unequal dis- tribution of property the most com- mon and durable source of it, 53. Federal Farmer : An opponent of the Constitution, 424. Federal Constitution (appendix) 561- 570 Feudal System : Account of it, 100, 288. Fisheries, The, 64. Fox, Charles James : his India bill, 449- Geometry : Why its principles are re- ceived without difficulty, 180 ; in- comprehensibility of one of them, 181. Georgia : Provision in her constitu- tion, concerning the separation of the legislative, executive, and judi- ciary powers, 307 ; number of rep- resentatives in the more numerous branch of her legislature, 345. Germanic Empire : Its origin, consti- tution, and disadvantages, 109. Gold and Silver : Principle on which the States are inhibited to make any thing else a tender in payment of debts, 277. Government (see " Minorities ") : A government, the constitution of which renders it unfit to be en- trusted with all the powers which a free people ouglit to delegate to any government, would be an un- safe and improper depositary of the national interests, 139 ; the danger of fettering it with restrictions which cannot be observed, 152; examples among the States of impracticable restrictions, 153 ; remarkable fea- ture of every government reported by ancient history which was estab- lished by deliberation and consent, 223 ; the reason of it, 224 ; ought to control the passions, and to be controlled by the reason of the pub- lic, 309, 315, 323 ; the greatest of all reflections on human nature, 323 ; wise kings will always be served by able ministers, /,oi ; the true test of a good government is its aptitude and tendency to produce a good ad- ministration, 427 ; definition of a limited constitution, 484 ; the gen- eral genius of a government is all that can be substantially relied on for permanent effects, 532. Great Britain (see "Standing Ar- mies ") : Her government, 233 ; the House of Commons, 329, 354, 360 ; the House of Lords, 408 ; why the king's power of an absolute negative on bills has been long dis- used, 429 ; Constitution of Great Britain, concerning a separation of the departments of power, 300. Grotius : Cited, 116, 541. High Seas : The power under the Constitution of defining and punish- ing offences on them, 260. Holland : Not a republic, 233. House of Representatives see " Con- stitution," "Treaties"): Qualifica- tions of the electors and the elected, 327 ; term of a member's service, 329, 333, 339 ; biennial elections defended, 335, 338 ; argument in their favor derived from the time they afford a representative -for acquiring the requisite information, 335, 337i 345 ; the ratio of repre- sentation, 339, 344 ; its proposed number of members defended, 345, 355 ! provision of the Constitution concerning the ineligibility of its members under certain circum- stances, to civil offices, 350 ; im- puted tendency of the plan for. the House of Representatives, to elevate the few above the many, 356 ; pro- vision for the future augmentation of its members considered, 362 ; economy consulted by the provision for its temporary number, 366 ; dangers of a multitudinous repre- sentative assembly, 365 ; maxim as to the proper number of representa- tives, 367 ; why more than a major- ity ought not to be required for a quorum, 367 ; provision for regu- lating elections to it, 368 ; less likely than local legislatures to be partial to particular interests, 375 ; advantage of uniformity in the time THE FEDERALIST. 581 of elections, 383 ; why it ougiit to have no power in the formation of treaties, 469 ; why it ought to have no power in the appointcaent of federal officers, 4S0. Human Nature : Its fair side, 350 ; A power over a man's support id a power over his will, 456, 491. Hume, David : Citation from his essays, 551. Impeachments (see " Senate," "Judi- ciary," "States," under their several titles). Indians ; Difficulties concerning them when residing within a State, 262. Innovation ; Its dangers exaggerated, some of its beneficial results, 81. Ireland, Elections in, 330. Jefferson, Thomas; Cited to show the evils in the constitution of Virginia, arising from the want of a barrier between the legislative, executive, and judiciary powers, 310 ; his draft of a Constitution cited, 313 ; his idea of a convention for correct- ing breaches of it, 314 ; defects of this plan, 314-18. Jenkinson, Charles : His remarks in- troductory to his bill for regulating the commerce between Great Britain and the United Stales, 126. Judiciary (see "Jury Trial ") : Want of, 132 ; objections to constituting the Supreme Court a tribunal, either singly or jointly with the Senate, for trying impeachments, ifit^etseq.; mode of appointing tlie Judges, their tenure of office during good behavior, 482—494 ; the weakest of the three departments of power, 484 ; vindication of its power to pronounce legislative acts void, because contrary to the Con- stitution, 485 ; the independence of the judges essential, and why, 487 : peculiar advantages of the provision in the Constitution for their support, 492 ; precautions for tlieir responsibility, 492 ; omission of a provision for removing them on account of inability, defended, 493 ; .six classes of cases, to which the judicial power of the federal government ought to extend, 494 et seq. ; these classes of cases com- ^ pared with the particular powers given by the Constitution to the judiciary, 498 ; distribution of authority in the judicial depart- ment, 501 ; statement of objections to the Supreme Court having un- divided power of final jurisdiction, 501 ; these objections answered, 502; the power in Congress of con- stituting inferior courts considered, 505 ; why the objects of these courts would not be accomplished by the instrumentality of the State courts, 506 ; the original jurisdiction of the Supreme Court confined to two classes of causes, 507, 509 ; whether the Supreme Court ought to have appellate jurisdiction as to matters of fact, 509, 512; such jurisdiction does not abolish trial by jury, 512 ; summary view of the authority of the Supreme Court, 512; whether the State courts are to have con- current jurisdiction in regard to causes submitted to the federal jurisdiction, 512; in instances of concurrent jurisdiction between the national and State courts an appeal would lie from the State courts to the Supreme Court of the United States, 514 ; whether an appeal would lie from the State courts to subordi- nate federal judicatories, 515. Jurisdiction : Literal meaning of the word noticed, 510, note. Jury Trial : Answer to the objection that the Constitution contains no provision for the trial by jury in civil cases, 516 et seq. ; in no case abolished by the Constitution, 518, 520 ; examination of the remark that trial by jury is a safeguard against an oppressive exercise of the power of taxation, 521 ; the strong- est argument in its favor, in civil cases, is, that it is a security against corruption, 522 ; difference be- tween the limits of the jury trial in the different States of the Union, 523 ; ineligible in many cases, 526 ; proposition concerning it made by the minority of Pennsylvania, 525 ; proposition from Massachusetts, 528. Legislation : Evils of a mutable, 389 1 et seq. 582 THE FEDERALIST. Legislature : Danger of its usurpa- tions in a representative republic, 308, 313, 316. Louis XIV., Anecdote of, 16. Lycian Confederacy, 52, 92, 287. Lycurgus, 223. Mably, Abbe de. On a confederate republic, 32 ; on Achfean League, 106 ; on United Netherlands, 118, Maintenon, Madame de, 28. Marlborough, John, Duke of, 31 ; Sarah, Duchess of, 28. Maryland, 128 ; Provision in her con- stitution concerning the separation of the legislative, executive, and judiciary power, 306 ; concerning her Senate, 398. Massachusetts ; Insurrections and re- bellions in Massachusetts, 32, 121 ; provision in her constitution, con- cerning the separation of the legisla- tive, executive, and judiciary povfers, 303 ; number of represen- tatives in the more numerous branch of her legislature, 345 ; size of her senatorial districts compared with that of the districts proposed by the convention, 361 ; provision concern- ing impeachments, 414, note, proposition from, in regard to jury trial, 528. Maxims ; Certain maxims in geometry, ethics, and politics, carrying inter- nal evidence, 180. Military Force (see "Constitution," " Standing Armies"). Militia : Its disadvantages and merits, 150 ; power of regulating it, 168. Minorities : Two modes of protecting them from usurpations by majorities, 325 et seq. ; to give a minority a negative upon a majority which is always the case where more than a majority is requisite to u. decision, is, in its tendency, to subject the sense of the greater number to that of the lesser, 129. Minos, 223. Mississippi, Navigation of the, iB, 64. Money : Power, under the Constitu- tion, of coining it, 264, 277. Montesquieu : Refutation of the er- roneous opinion that he considered the republican polity unsuited to a large extent of country, and his praise of a confederate republic, 47, „ 48, 51, 270, 274; true extent of his doctrine, requiring a separation of the legislative, executive, and judi- ciary powers, 300, 302 ; his remarks concerning the judiciary, 484, note. Naturalization : Provision of the Con- stitution concerning it, 264. Navigation of the lakes, 64. Navy : Practicability of creating a federal navy, 65 ; its advantages, 57 ; the Southern States the nursery of wood, and the Northern of men, for ships, 65 ; importance of estab- lishing a navy as early as possible, 146 ; power in the federal Consti- tution of erecting one, 254. Negative "cm bills (see " Great Britain," " President ") Netherlands: Their government, 115 ; an evil attending the constitution of the States-General, 469. New Hampshire : Provision in her constitution, concerning the separa- tion of the legislative, executive, and judiciary powers, 303 ; the size of her senatorial districts, compared with the size of the districts pro- posed by the convention, 361 ; provision concerning impeachment, 414, note. New Jersey : Provision in her Consti- tution, concerning the separation of the legislative, executive, and judi- ciary powers, 305 ; concerning im- peachments, 414; herprovisions con- cerning the unity of the Executive and a council of appointment, 438. New York : Her controversy with the district of Vermont, 35 ; alleged excellence of her constitution, 144, 154 ; provision in her constitution, concerning the separation of the legislative, executive, and judiciary powers,- 304 ; number of repre- sentatives in the more numerous branch of her legislature, 345 ; size of her senatorial districts compared with that of the districts proposed by the convention, 361 ; her con- stitution makes no provision con- cerning the locality of elections, 381 ; provision concerning impeach- ments, 413 ; provision concerning the unity of her Executive, 438 and note; where, by her constitution, the qualified power of negativing THE FEDERALIST. S83 hills is vested, 462 ; provision of her constitution, prohibiting any person more than sixty years old from being a judge, 493. North. Carolina ; Revolt of a part of, 32 ; provision in her constitution, concerning a separation of the legis- lative, executive, and judiciary powers, 306. Numa, 223. Pennsylvania : Disturbances in, 34 ; constitution on standing army, 142 ; concerning the separation of the legislative, executive, and judiciary powers, 305, 311 ; number of rep- resentatives in the more numerous branch of her legislature, 346 ; pro- vision concerning impeachments, 414, note ; proposition from the mi- nority of, concerning jury trial, 525. Pericles : Examples of the injury re- sulting to his country from his per- sonal motives of action, 27. Poland: Her government, 113, 233 ; an evil of the Polish Diet, 469. Political Economy : There is no com- mon measure of national wealth, and why, 123. Pompadour, Madame de, 28. Post-Roads : Provision of the Consti- tution concerning them, 266. President of the United States : Ex- aggeration noticed of the authority vested in him by the Constitution, 234 ; the power of filling casual va- cancies in the Senate falsely as- cribed to him, 421 ; why the power of filling, during the recess of the Senate, vacancies in federal offices, is confided to him, 422 ; peculiar eligibility of the mode provided for his appointment, 423 et scq, ; why tlie office of President will seldom fall to the lot of any man not quali- fied in any degree to fill it, 426 ; his constitution compared with that of the king of Great Britain and with that of the governor of New York, 428 ; his qualified negative on bills, 429 et seq. ; a shield to the Executive, 458 ; an additional se- curity against the enacting of im- proper laws, 459 ; the i)0wer likely to be exercised only with great cau- tion, 459 ; practice in Great Britain, 459; cases for which, chiefly, it was designed, 460 ; where vested by the constitution of New York, 462 ; refutation of the doctrine that a vigorous Executive is inconsistent with the genius of a republican government, 436; the unity of the Executive defended, 437; objections to a plural Executive, 438 ; objec- tions to an executive council, 438, 445 ; the responsibility of the Presi- dent necessary, 444 ; the term of four years for his office defended, 448 et seq, ; his reeligibility de- fended, 451 et seq.; danger of in- stability in the system of adminis- tration, 453 ; danger, particularly, from frequent periodical changes of subordinate officers, 454 ; fallacy of the advantages expected to arise from ineligibility for reelection, 454 ; the provision in the Con- stitution for the compensation of the President, 456 ; his power as commander-in-chief of the army and navy, 462 ; his power of requir- ing the opinions in writing of the heads of the executive departments, 463 ; his power of pardoning, 463 ; answer to the objection against his having the sole power of pardon in cases of treason, 464 ; his power in relation to treaties, 465 et seq. ; his power in regard to the appointment of federal officers, 471 ; -less apt than a numerous assembly of men to consult personal or party feelings in appointments, 472 ; the cooper- ation of the Senate, a check on a spirit of favoritism in the President, 474 ; his power in regard to the removal of officers, 47S ; the consti- tution of the President combines the requisites to public safety, 481. Press : The liberty of the, 537 ; tax on newspapers in Great Britain, 538, note. Public Acts : Records, etc., provision of the Constitution conceriiing them , 266. Public Debt : Would be a cause of collision between tiie separate States or Confederacies, 37 ; obligation of the federal government concerning public debts, prior to the adoption of the Constitution, 274. Public Lands : A fruitful source of controversy, 33, 35. * 584 THE FEDERALIST. ■ Removals of federal officers (see " President"). Representation : The principle of it, said lo be an invention of modern Europe, 78, 329, 395 ; idea of an actual representation of all classes of the people by persons of each class, visionary, 204 ; distinction be- tween the principle of representa- tion among the ancients, and in the United Slates, 397. Republic : Defined, 57 (see " Confed- erate Republic ") ; its advantages, 109 et seq. ; error of the opinion that it is unsuitable to a large district of country, 77 ; natural limits of one, 78 ; one of its weak sides, the inlets which it affords to foreign corruption, 131 ; defined or described, 232 ; inapplicability of the title to certain governments which have received it, 232 ; obliga- tion of the federal government to guarantee to every State a republi- can form of government, 270. Rhode Island : Provision in her con- stitution, concerning elections, 333 ; number of representatives in the more numerous branch of her legis- lature, 346 ; iniquitous measures of, 392- Rome : Senate of, 394 ; tribunes of, 399 ; evils arising from her having plural consuls and tribunes, 438, 469. Romulus, 223. Rutherford, Dr. Thomas, cited, 541, note. Senate (see "Elections," "Judi- ciary ") : Will generally be com- posed with peculiar care and judg- ment, and why ? 160 ; its con- stitution, 384 et seq. ; qualifications of senators, 384 ; appointment of senators by the State legislatures, 385 ; ■ equality of representations in the Senate, 385 ; Number of senators and duration of their appointment, 387 ; its power in regard to making treaties, 400, 403 ; provision for the biennial succession of one third of new sena- tors, 402 ; viewed as a court of im- peachment, 407 ; the objection which would substitute the propor- tion of two thirds of all the mem- bers composing the Senate, to that of two thirds of the members ^>-««// considered, 470 ; its coSperation with the President in appointments, a check on favoritism, 472 et seq. ; answer to the objection that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views, 475, 476 ; its consent would be necessary to displace as well as to appoint officers, 476. Servius Tullius, 223. Shays Rebellion, 28. Ship-Building : The wood of the Southern States preferable for it, 65. Slaves ; The importation of them after the year 1808 prohibited, 261 ; possess the mixed character of per- sons and property, 340 ; defence of the provision of the Constitution combining them with free citizens as a ratio of taxation, 340 et seq. Socrates, 347. Solon, 223. South Carolina : Provision in her constitution, concerning the separa- tion of the legislative, executive, and judiciary powers, 306 ; provi- sion concerning elections, 333 ; number of representatives in the more numerous branch of her legis- lature, 346 ; provision concerning impeachments, 414, note. Sparta : Her Senate, 394 ; her Ephori, 396, 399. StandingArmies (see "Constitution "); One advantage of them in Europe, 40 ; would be an inevitable result of the dissolution of the Confeder- acy, 41 ; their fatal effects on lib- erty, 41 — see p. 250 ; why they did not spring up in the Grecian republics, 42 ; nor to any consider- able extent in Great Britain, 44, 251 ; wisdom of the provision of the federal Constitution in this particular, 142, 146, 156 ; why it is better for an army to be in the hands of the federal government than of the State governments, 147, 148 ; silence in regard to them in the constitutions of all the States except two, 142, 143, 151, 153; provision concerning them, in the English Bill of Rights framed at THE . FEDERALIST. 585 the Revolution in 1688, 154 ; high- est proportion of a standing army to the population of a country, 297. States (see "Constitution," " Taxa- ation," " Union ") : Advantages of an unrestrained intercourse between them, 66 ; the consequences of the/ doctrine that the interposition of tha States ought to be^ required to giva efifect to a measure of the Union! 90, 95; easier for the State govern- ment to encroach on the national government than for the latter to encroach on the former, g8, 184, 294 ; the State governments will in all possible contingencies afford complete security against all inva- sions of public liberty by the national authority, 164, 296, 307 ; power of Congress to admit new States into the Union, 269 ; obligation of Con- gress to guarantee a republican form of government to every State, 270 et seq. ; provision of the Constitu- tion, concerning its ratification by nine States, 275 ; why the State| magistracy should be bound to sup- port the federal Constitution, 284 ; discussion of the supposed danger from the powers of the Union to the State governments, 285 et seq. ; examination of the comparative means of influence of the federal and State governments, 290, 292 ; provisions in the constitutions of the several States, concerning the separation of the legislative, execu- tive, and judiciary powers, 303 et seq. , 308 ; provisions, etc. , con- cerning elections, 331, 368 ; pro- visions, etc., concerning the size of electoral districts, 345 ; as fair to presume abuses of power by the State governments as by the federal government, 361 ; " portion of sovereignty remaining in the indi- vidual States," recognized by the Constitution, 386 ; provisions of the constitutions of the several States concerning impeachments, 414, note ; New York and New Jersey the only States which have entrust- ed the executive authority wholly to single men, 438 ; difference be- tween the limits of the jury trial in the different States, 523. Sweden : Corruption the cause of the sudden despotism of Gustavus III., 132. Swiss Cantons . Their government, 113, 272. Taxes : Indirect taxes the most ex- pedient source of revenue in the United States, 69, 124 ; suggestion of a tax on ardent spirits, 72 ; Taxa- tion, 174 et seq. ; incompetency of the Turkish sovereign to impose a new tax, 175 ; intention and practi- cal defects of the old Confederation in regard to taxation, 175; distinc- tion between internal and external taxes, 176 ; inadequacy of requi- sitions on the States, 177 ; ad- vantages of vesting the power of taxation in the federal govern- ment, as it regards borrowing, 179 ; positions manifesting the necessity of so vesting the power, i8i ; objec- tions, 183; danger of so vesting the power denied, 185; except as to im- ports and exports, the United States and the several States have con- current powers of taxation, 187 ; no repugnancy between those con- current powers, 188 ; the neces- sity of them, 189 et seq. ; dangers of restricting the federal power to lay- ing duties on imports, 200 ; effect of exorbitant duties, 20I ; answer to objections to the power of inter- nal taxation in the federal govern- ment, derived from the alleged want of a. sufficient knowledge of local circumstances, and from a supposed interference between the revenue laws of the Union and those of the particular States, 208 ; suggestion of double taxation answered, 213 ; evils of poll taxes admitted, but the propriety of vesting in the federal government the power of imposing them asserted, 213 ; provision of the Constitution, concerning taxa- tion, 280. Theseus, 223. Titles of Nobility : The prohibition of them the corner-stone of repub- lican government, 279 Treason ; Power under the Constitu- tion, concerning it, 269 ; why the power of pardoning in cases of treason is properly vested in the President solely, 463, 464. 586 THE FEDERALIST. Treaties : Power under the Constitu- tion, concerning them, 277 ; why they ought to be the supreme law of the land, 403 ; power of the President in regard to them, 403, 466, 470 ; why the House of Rep- resentatives ought to have no power in forming them, 468 ; why two thirds of the senators present are preferable to two thirds of the whole Senate as a coordinate power with the President, in regard to treaties, 469. TuUius Hostilius, 223. Union (see "Confederacies," "Con- stitution") : Its importance, 6 ; its capacity to call into service the best talents of the country, 10 ; a bul- wark against foreign force and influence, its capacity to pre- vent wars, 13, 17, 22 ; a safeguard against domestic insurrections and wars, 26, 39, 45, 60 ; a safe- guard against standing armies as consequent on domestic insurrec- tions and wars, 38, 43 ; its utility in respect to commerce and a navy, 60, 67 ; its utility in respect to revenue, 67, 76 ; principal purposes to be answered by it, 136 ; if found- ed on considerations of public- hap- piness, the sovereignty of the States, if irreconcilable to it, should be sacrificed, 285. United Netherlands, 115. United States : Their actual dimen- sions, 78. Venice : Not a republic, 233. Vice-President, 427. Virginia (see "Jefferson, Thomas ") : Provision in her constitution, con- cerning the separation of the legisla- tive, executive, and judiciary pow- ers, 306, 310 ; was the colony which stood first in resisting the par- liamentary usurpations of Great Britain, 331 ; was the first to espouse by a public act the resolution of in- dependence, 332 ; elections under her former government, 332. West India Trade, 62. Wolsey, Cardinal, 28. Wyoming, Lands of : Dispute between Connecticut and Pennsylvania con. cerning them, 34. Yates, Abraham, 462, Zaleucus, 223.